5. Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, we look at whether the Commission adopted one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer?¹⁰ Second, if the customer's contentions or recommendations paralleled those of another party, we look at whether the customer's participation unnecessarily duplicated or materially supplemented, complemented, or contributed to the presentation of the other party.¹¹

As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.

In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.¹²

With this guidance in mind, we now will evaluate the intervenors' contributions to the Phase 1 Decision.

5.1. CFC's Substantial Contributions

CFC states it contributed to the Phase 1 Decision by:

a. Assisting in developing proposals presented in the Staff Report prior to commencement of the OIR,

b. Identifying existing protections for LEP consumers,

c. Recommending the adopted trigger for in-language marketing rules,

d. Recommending customer information and service requirements,

e. Recommending language preference and complaint tracking, and

f. Recommending penalties for violations of the rules.

CFC states it made contributions during (and claims compensation for) two periods of time: June 26, 2006 to January 11, 2007, prior to initiation of this OIR, and January 11, 2007 to July 26, 2007, covering the period from the initiation of this OIR until the Phase 1 Decision was adopted.

CFC states that, prior to the issuance of this OIR, it assisted in the development of proposals presented in the Staff Report by participating in the June 26, 2006 workshop on the plan for studying the special needs of and challenges faced by LEP consumers ordered by D.06-03-013 (Study Plan), and by filing comments on the Study Plan and the draft Staff Report.

CFC states that it presented evidence at the June 26, 2006 workshop about the victimization of non-English-speaking customers by carriers' agents, and recommended that carriers be required to assume greater responsibility for agents' conduct. CFC also states that its July 14, 2006 Study Plan comments recommended that the Commission staff investigate the sales practices of carriers' third-party agents, and carriers' costs to provide LEP customers with contracts, bills and other essential information written in-language, including consequences of canceling contracts.

The intervenor compensation statutes provide that intervenor compensation applies to formal proceedings of the Commission.¹³ However, CFC's workshop participation and comments on the draft Staff Report were undertaken after the close of R.00-02-004 and prior to initiation of this OIR. Therefore, whether CFC should be compensated for its work prior to the commencement of this proceeding requires careful consideration.

The Commission has sometimes awarded compensation for an intervenor's work prior to the commencement of a proceeding to which the work ultimately substantially contributed. For example, D.04-08-025 awarded a party (TURN) compensation for work performed prior to the commencement of the proceeding.¹⁴ In awarding compensation for work undertaken prior to the commencement of a proceeding, D.04-08-025 looked at the close relationship between the work performed prior to the proceeding and the intervenor's position in the proceeding leading to a substantial contribution to the decision ultimately adopted by the Commission.

In awarding compensation for TURN's work prior to the commencement of the proceeding D.04-08-025 emphasized that TURN was an active participant in activities undertaken prior to the commencement of I.02-04-026, and that TURN advocated a position that D.03-12-035 adopted. D.04-08-025 cautioned intervenors that they should not assume that work done prior to the commencement of a proceeding, even if clearly related to that proceeding, would automatically be compensable.

Applying the factors used in D.04-08-025 to CFC's claim in this proceeding, we find that CFC's work prior to commencement of the OIR is compensable. There was a close relationship between CFC's work prior to the OIR, CFC's positions in the proceeding, and the results ultimately adopted in the Phase 1 Decision.

As stated above, D.06-03-013 directed the Commission staff to analyze and report on special problems faced by LEP consumers. The Staff Report and Proposal established the framework for this OIR. The January 17, 2007 Assigned Commissioner's Ruling (ACR) issued after the commencement of the OIR incorporated by reference the limited English proficiency aspects of the record of R.00-02-004 and the subsequent meetings, workshops, comments, and Staff Report described in R.07-01-021.

CFC's work prior to commencement of the OIR contributed to identification of the issues considered in this proceeding and to the resolution of those issues. For example, the Staff Report refers to CFC's comments on the Commission's June 2006 Study Plan concerning state laws that address specific language requirements to enable LEP consumers access government and business services.¹⁵ The Staff Report also refers to CFC's comments when recommending that the Commission should determine the cost of providing essential information to a buyer in the language in which service was sold.¹⁶

CFC was an active participant in activities undertaken prior to the commencement of the OIR, and CFC's work prior to the commencement of the OIR advocated the positions it pursued in the OIR. CFC's efforts helped to focus issues addressed in the OIR through its recommendations and proposals referenced in the Staff Report. CFC's work prior to the commencement of the OIR was closely related to its positions in the proceeding that, as discussed below, made substantial contributions to the Phase 1 Decision. Therefore, CFC's work prior to the commencement of the OIR is eligible for compensation.

CFC also made substantial contributions to the Phase 1 Decision through its active participation in the OIR from January 11, 2007, when the OIR was initiated, to July 26, 2007, when the Phase 1 Decision was adopted.¹⁷ CFC's views and recommendations were cited to 15 times in the Phase 1 Decision.

CFC opposed carriers' arguments against the adoption of in-language marketing rules by addressing the shortcomings of existing regulations and statutes. In particular, CFC addressed the limited protections for LEP consumers provided by D.96-02-072 and D.96-10-076, Civil Code (CC) §§ 1632, 1668, 1670.5, 1689.7 and 1770; Business and Professions Code §§ 11245, 17538.9 and 22442; Insurance Code § 762; and Pub. Util. Code §§ 392.1, 2889.9, and 2890.

The Phase 1 Decision found that existing practices and rules do not adequately protect LEP consumers because they either do not require information to be in-language and understandable to LEP customers, they apply only to certain kinds of transactions or customers, or they apply to some carriers serving LEP customers but not to others.¹⁸ CFC's contribution materially supplemented and complemented DRA's, LIF's, and TURN's contributions to the Commission's assessment of existing protections for LEP consumers.

CFC's comments assisted the Commission in determining that "when a carrier markets to consumers in a particular language, that carrier then assumes the obligation to provide consumers enough information in the language in which the carrier is marketing, to allow consumers to make informed purchasing decisions and resolve service or billing problems."¹⁹ CFC materially supplemented and complemented DRA's and Greenlining's contributions to the Commission's determination of when in-language requirements should apply.

CFC recommended that the term "marketing in-language" be defined to include indications of entry into a market, such as issuing press releases or posting on a web site, so that carriers would take into account the cost of providing in-language support services when deciding whether to enter a market.²⁰ CFC's reply comments responded to the carriers' definitions of the term "marketing" that would have effectively eliminated carriers' obligation to provide in-language information.²¹

The Commission rejected carriers' narrow definitions and adopted a broader definition of marketing consistent with CFC's recommendations. CFC's recommendations for defining in-language marketing and for triggering the in-language rules contributed to the Commission's determination of the requirements adopted by the Commission.²²

CFC materially supplemented and complemented DRA's and other Consumer Group Intervenors' recommendations that carriers provide customers with essential information in the customer's language about the key terms of contracts, and how and when that information should be provided. CFC proposed a rule to ensure that customers have clear and complete information about rates, terms and conditions for available products and services.

CFC's proposed rule contained a detailed list of information that should be provided in-language to LEP customers, including an in-language confirmation summary with the provider's name, address, telephone number, and a brief description of the services ordered an itemization of all charges appearing on the customer's bill. CFC recommended that this information be provided at the point of sale. CFC, LIF and TURN recommended that required information be provided by carriers and their agents and on carrier websites.

Although the Commission did not adopt all of CFC's proposed information requirements, the Commission adopted some of the recommended requirements, including requirements that carriers' agents make the required information available and the timing as to when that information should be made available.

CFC, DRA, and the other Consumer Group Intervenors' recommended that carriers be held responsible for the actions of their agents. CFC argued that carriers' and their agents should be jointly and severally liable for damages caused by violations of the rules. The Phase 1 Decision concluded that carriers are responsible for the acts of their agents under the Civil and Public Utilities Codes, and requires carriers to take corrective action to prevent unauthorized in-language marketing by their employees or agents.²³

The Phase 1 Decision requires, among other things, that carriers marketing non-exempt services in-language provide in-language customer service by telephone.²⁴ CFC materially supplemented and complemented DRA's and the other Consumer Group Intervenors' recommendations that carriers should be required to provide in-language customer service by telephone.

The Phase 1 Decision also points to CC § 1670.5, identified by CFC, for guidance in determining whether a contract should be enforced in whole or in part, if at all, in response to a formal complaint.²⁵

We find that CFC made a substantial contribution to the Phase 1 Decision and should receive an award of compensation.

5.2. Greenlining's Substantial Contributions

Greenlining states that it contributed to the Phase 1 Decision by:

a. Recommending the adopted trigger for in-language marketing rules;

b. Recommending customer information, including in-language contract terms at point of sale, and service requirements, including in-language customer service;

c. Recommending language preference and complaint tracking, and

d. Recommending penalties for violations of the rules.

Greenlining states that it represented ratepayers from low-income and minority communities whose voices would not have otherwise been heard. Greenlining states that it participated throughout the proceeding, and helped establish the issues to be considered in Phase 2 of the OIR.

Greenlining's views and recommendations were cited to 16 times in the Phase 1 Decision. For example, the Consumer Group Intervenors and DRA recommended that carriers be required to track LEP customer complaints and language preferences. Greenlining, LIF and TURN also recommended that carriers be required to track complaints against carriers' agents. Greenlining and TURN opposed exempting small carriers from tracking requirements. The Phase 1 Decision deferred LEP consumer complaint and language preference tracking issues to Phase 2 of the proceeding.

Greenlining, DRA, and LIF recommended that CBOs be funded and integrated into the Commission's complaint resolution process. However, Greenlining also recommended that the Commission make Consumer Affairs Branch (CAB) data available to CBOs to assist in more effective complaint resolution processes. The Phase 1 Decision directed Commission staff to design a program to integrate CBOs in the Commission's outreach, education and complaint resolution processes, and Greenlining's participation contributed to the Phase 1 Decision on this issue.

Greenlining recommended two alternatives for triggering a carrier's obligation to provide in-language services. Like DRA and the other Consumer Group Intervenors, Greenlining recommended that carriers and their agents that market in-language be required to comply with the In-Language Marketing Rules. Greenlining further recommended that carriers that did not market in-language be required to comply with the In-Language Marketing Rules if carriers acquired 5% or more of their revenue from LEP customers.

The Phase 1 Decision did not adopt Greenlining's revenue-based trigger because the revenue-based trigger required carriers to track LEP customers and the Phase 1 Decision deferred to Phase 2 consideration of carrier tracking requirements. However, Greenlining's proposal provided a unique perspective that contributed to the Commission's deliberations and the record.

As stated above, Greenlining and other Consumer Group Intervenors recommended that contracts be provided in-language. Greenlining and CFC also recommended that certain in-language information be provided to LEP consumers at the point of sale. Greenlining further recommended that information on how to file complaints also be provided in-language to LEP consumers.

The Proposed Decision (PD) required carriers to provide a confirmation summary of key terms of service in the customer's requested language using at least one of four alternative methods to provide this information. The alternative methods included 1) in-person or telephone customer service; 2) telephonic interactive voice response systems; 3) in writing at the point of sale, by U.S. Mail, text messages or email; and 4) through an Internet website.

The Phase 1 Decision adopted Greenlining's, DRA's, and the other Consumer Group Intervenors' recommendation that carriers be required to provide an alternative method in addition to the Internet for LEP consumers to obtain in-language information because many LEP consumers do not have access to computers or the Internet.

Greenlining argued that strong penalties for violations of the In-Language Marketing Rules were needed, and recommended that customers be allowed to terminate contracts without penalties or fees and waiver of charges for any services rendered. Although the Commission did not adopt Greenlining's recommendations, Greenlining contributed to the Commission's deliberations on this issue.

Greenlining, CFC, and LIF recommended that the Commission enforce existing rules for prepaid calling cards. However, Greenlining also recommended that prepaid calling cards and the prepaid calling cards' packaging include in-language terms, and provide access to a toll free number for in-language customer support. Although the Commission did not adopt Greenlining's recommendations, Greenlining provided a unique perspective that contributed to the Commission's deliberations and the record.

We find that Greenlining made a substantial contribution to the Phase 1 Decision and should receive an award of compensation.

5.3. LIF's Substantial Contributions

LIF claims that it made substantial contributions to the Phase 1 Decision, first, through its formal comments, but also through its meetings with Commissioner's offices to discuss proposals offered by carriers and to present consumer groups' proposals. LIF claims that these discussions assisted in highlighting issues that were later addressed by the Phase 1 Decision.

LIF states that it contributed to the Phase 1 Decision by:

a. Arguing that existing rules do not adequately protect LEP consumers;

b. Advocating for providing LEP consumers timely, adequate in-language information;

c. Contributing to the formulation of the trigger for in-language marketing rules;

d. Recommending that carriers track language preference and LEP complaints, and CBO involvement in consumer education and complaint resolution; and

e. Advocating for carrier responsibility for their resellers.

LIF's views and recommendations were cited to 24 times in the Phase 1 Decision. For example, in response to the request for comments on the proposed "cost effectiveness" criterion for evaluating options to address the problems faced by LEP telecommunications customers, LIF argued that consumers should not have to bear a financial burden of any amount due to fraud. The Phase 1 Decision agreed with LIF's view and concluded that correcting fraudulent conduct or compensating victims of fraud need not meet a cost-effectiveness test.²⁶

LIF materially supplemented and complemented CFC's, DRA's, and TURN's contributions to the Commission's assessment of existing protections for LEP consumers and the Phase 1 Decision's conclusion that existing practices and rules do not adequately protect LEP consumers. LIF argued that Pub. Util. Code §§ 2889.5 and 2890(d) and CC § 1632 should, but did not explicitly, apply to LEP consumers and, as a result, provided inadequate protections. LIF also recommended that the Commission review the complaint data required by General Order 133-B for information involving LEP customers.

LIF, DRA, and the other Consumer Group Intervenors recommended that carriers provide in-language information concerning the key terms of contracts. LIF recommended that this information should be provided prior to the completion of a transaction, and LIF and TURN made specific recommendations for providing required information when transactions were made via the telephone and the Internet. LIF materially supplemented and complemented DRA's and the other Consumer Group Intervenors' recommendations that carriers be required provide access to certain in-language information.

LIF recommended that carriers and agents be required to clearly and conspicuously disclose key rates, terms, and conditions of a transaction in a single written document which customers may review prior to sale, or within seven days of orders placed by telephone, with an option to cancel. LIF, CFC, and TURN recommended that required in-language information be provided by carriers and their agents and on carrier websites. Although the Commission did not adopt LIF's recommendations as proposed, LIF's recommendations contributed to the formulation of the In-Language Marketing Rules, including the establishment of a timetable for providing required information to LEP consumers.

While the Consumer Group Intervenors and DRA recommended that carriers be required to track LEP customer complaints and language preferences, LIF also recommended that a carrier be required to inform the Commission if that carrier could not support a customer's language preference. LIF and DRA recommended that carriers be required to periodically report LEP customer complaints and language preferences to the Commission and that this information be published. LIF, Greenlining, and TURN recommended that carriers be required to track complaints against carriers' agents.

However, LIF also recommended that third-party resellers provide two toll-free telephone numbers for consumers with complaints; one number for the dealer's/reseller's complaint department and the other for the primary carrier's complaint department.

LIF, along with DRA and Greenlining, recommended that CBOs be involved in the Commission's complaint resolution process. LIF additionally recommended that CBOs be authorized to represent LEP customers. The Commission adopted LIF's recommendation that carriers permit CBOs to represent any customer who has authorized a CBO to assist it in dealings with carriers.²⁷

LIF and Greenlining recommended including CBOs in developing consumer education materials for LEP consumers and for CBOs to be financially supported in their complaint resolution and consumer education efforts. LIF also recommended including CBOs in the Commission's consumer outreach efforts.

LIF also recommended that the Commission provide consumer education and increase enforcement oversight of prepaid phone cards. Although the Commission did not adopt LIF's recommendations concerning prepaid calling cards, the Phase 1 Decision directed Commission staff to continue working with the Attorney General to enforce prepaid calling card standards and requirements.²⁸

We find that LIF made a substantial contribution to the Phase 1 Decision and should receive an award of compensation.

5.4. Contributions of Other Parties

Section 1801.3(f) requires an intervenor to avoid unproductive or unnecessary participation that duplicates that of similar interests otherwise adequately represented by another party, or participation that is not necessary for a fair determination of the proceeding. Section 1802.5, however, allows an intervenor to be eligible for full compensation if its participation materially supplements, complements, or contributes to that of another party making a substantial contribution to the Commission's order.

CFC states that it focused on limited legal and factual issues, providing a unique contribution to the outcome of the OIR. Greenlining states that it was the only party to advocate on behalf of low-income and minority communities, and that its work in this proceeding was unique and did not duplicate efforts of other parties to the proceeding. LIF states that its comments were based on information it received from CBOs, and that it provided a unique perspective on the experience of actual LEP consumers.

Although we find that each of the intervenors here has made unique contributions to the Phase 1 Decision, it would be unrealistic to expect no overlap to occur considering the number of parties and the nature of the issues addressed in Phase 1 Decision. We recognize that the intervenors whose claims we address today collaborated where they found it possible to do so, and took reasonable steps to minimize duplication.

The Consumer Group Intervenors addressed many of the same issues. However, each intervenor's contributions supplemented and complemented the others' by addressing different aspects of an issue. We conclude that it would have been virtually impossible to avoid some duplication among these parties, but that each intervenor also took positions that provided unique contributions enriching the Commission's deliberations and contributing to the proceeding. Therefore, we decline to reduce any of today's awards on account of duplication.

¹⁰ See § 1802(i).

¹¹ See §§ 1801.3(f) and 1802.5.

¹² D.98-04-059, 79 CPUC2d 628 at 653.

¹³ § 1801.3(a).

¹⁴ See also, for example, D.05-05-046.

¹⁵ Staff Report, pp. 30-31.

¹⁶ Staff Report, p. 80.

¹⁷ CFC filed Opening and Reply Comments on the OIR, and Reply Comments on the Proposed Decision.

¹⁸ FOF 31.

¹⁹ D.07-07-043, p. 73.

²⁰ CFC's opening comments of February 16, 2007, p. 3.

²¹ CFC's reply comments of March 2, 2007, pp. 9-11.