6. Comments on Proposed Decision

The PD in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on March 26, 2008 by PG&E, SCE, SDG&E/SoCalGas (jointly), Verizon, and The Utility Reform Network (TURN). TURN, SCE and Verizon filed reply comments on April 1, 2008. All comments and replies were filed timely.

The PD initially did not allow for any circumstances where we would consider rate increases above the maximum of the generally adopted ranges. In their comments, the utilities generally support the PD and in particular encourage the Commission to eliminate the requirement of the annual service of data sets. TURN's comments focus on the need for a procedure to allow for rates above the maximum of a given range in limited circumstances. TURN also alleges in its comments that the outcome of the PD (no procedure for allowing rates above a given range) "represents legal error due to the inconsistency with the intervenor compensation statutes."

In reply comments, SCE states it does not oppose establishing a procedure for considering hourly rates above the adopted rate range, but disagrees that legal error would result, as TURN alleges, if such a procedure were not established. Verizon endorsed SCE's position.

In Section 4.3.4 of today's order, we describe a procedure and circumstances where we would consider proposals for hourly rates above the adopted rate ranges. However, we do not agree with TURN that the statute requires such a procedure.

The statute authorizes, with many limitations and conditions, compensation for "reasonable advocate's fees" and "reasonable expert witness fees." See, e.g., Sections 1801, 1802(a), 1803. The statute does not require the Commission to distinguish more finely than between "advocates" and "expert witnesses." For the Commission to try to set fees for every type of specialized knowledge and expertise that ever becomes pertinent to Commission proceedings would be wholly impractical, even if we desired to do so, and also would require us to divert energy and resources to the analysis of circumstances that TURN itself concedes arise very rarely. This misallocation of effort would be inconsistent with the legislative intent that the Commission administers the statute efficiently. See, e.g., Section 1801.3(b).

Indeed, we remain skeptical that our approved hourly rate ranges are too low to allow an intervenor to obtain skilled representation, even in the realms of bankruptcy and federal appellate litigation. We emphasize that the "market rate" for representatives in a given subject matter area is not necessarily the hourly rate charged by the most famous or most senior representatives, or by those hired by the utility.

We also note that an intervenor remains free to retain any willing representative it chooses, at whatever rate the intervenor is able to pay or negotiate. As TURN points out, we award hourly rates for an intervenor's in-house representatives that may be less (perhaps significantly less) than what the intervenor actually pays those representatives. The intervenor has the discretion to hire the outside representatives that it chooses, including representatives whose rates may be higher than our adopted ranges, higher indeed than what we find to be the "market rate" after consideration of a supplemental NOI under the procedure we adopt today. We find these results consistent with the "letter and spirit of the intervenor compensation statute."