Nature and Extent of Planned Participation; Estimate of Compensation
Section 1804(a)(2)(A) provides that the NOI shall include both a statement of the nature and extent of a customer's planned participation and an itemized estimate of the compensation that the customer expects to request.
Planned Participation
The Commission has stated that the information provided on planned participation should provide the basis for a critical preliminary assessment of whether (1) an intervenor will represent customer interests that would otherwise be underrepresented, (2) the participation of third-party customers is nonduplicative, and (3) that participation is necessary for a fair determination of the proceeding. The Administrative Law Judge may issue a preliminary ruling on these issues, based on the information contained in the NOI and in the Assigned Commissioner's scoping memo. (D.98-04-059, mimeo., at pp. 27-28, 31-33.)
Raw Bandwidth is the complainant in this proceeding and is participating on all issues raised in the Complaint. Raw Bandwidth and Defendants have settled many issues raised in the Complaint, two issues were formally withdrawn, three issues were set for formal proceedings in the scoping memo, and the parties have resolved two of those issues in settlement negotiations. Under Pub. Util. Code § 1803(b), a customer is eligible for an award of compensation if the customer's participation makes a substantial contribution to the adoption, in whole or in part, of the Commission's order or decision. Thus, Raw Bandwidth only is eligible for compensation for issues resolved by order or decision.
Estimate of Compensation
Pub. Util. Code § 1804(a)(2)(A)(ii) requires that the NOI include an itemized estimate of compensation the intervenor expects to request. Raw Bandwidth must address the reasonableness of the requested rates in the context of the Commission's market rates in its ultimate Request for Compensation. This ruling does not ensure compensation.
Raw Bandwidth states it will request compensation for its attorney, Mr. Kashdan, at $200 per hour and for Mr. Durkin, president of Raw Bandwidth but serving as an expert witness in this proceeding, at $100 per hour. Raw Bandwidth estimates a total of $700 for expenses and $36,600 for fees for a total of $37,300. Raw Bandwidth estimates 70% of the time will be spent on the telemarketer issue, 25% on the 611 issue, and 5% on the CD ROM billing issue.
Raw Bandwidth is cautioned that it should carefully document the number of hours and hourly fees for counsel and carefully allocate such expenses to specific issues pursued in this proceeding in order to avoid requests for compensation for issues that have personal or competitive impacts. Raw Bandwidth should also review Commission orders and, in preparing its compensation request, take into account the Commission's practices for reducing hourly rates and hours claimed, e.g., for travel time and time spent on the compensation request itself.
Significant Financial Hardship
Raw Bandwidth declines to make a showing of significant financial hardship at this time. Section 1802(g) defines "significant financial hardship" as:
"either that the customer cannot afford, without undue hardship, to pay the costs of effective participation, including advocate's fees, expert witness fees, and other reasonable costs of participation, or that, in the case of a group or organization, the economic interest of the individual members of the group or organization is small in comparison to the costs of effective participation in the proceeding."
Under § 1804(a)(2)(B), this showing may be made in the NOI, or alternatively, deferred until the request for compensation is filed. Raw Bandwidth has elected to make the financial hardship showing in its request for compensation and cannot be found eligible for compensation prior to making that showing.
Raw Bandwidth must satisfy the "cannot afford, without undue hardship, to pay" standard. Because Raw Bandwidth estimates its total costs will be $37,300 and only a portion of that time, approximately 25% or $9,325, will be allocated to the issue to be resolved by order or decision of the Commission, Raw Bandwidth will have great difficulty establishing that it has a significant financial hardship. Although Raw Bandwidth is a small ISP, with approximately 700 customers, and has not provided financial information in this proceeding, Raw Bandwidth faces a significant hurdle in establishing that it cannot afford, without undue hardship, to pay the cost of participation in this proceeding.
IT IS RULED that:
1. Raw Bandwidth Communications, Inc. (Raw Bandwidth) is a customer as that term is defined in Pub. Util. Code § 1802(b).
2. Raw Bandwidth has fulfilled the requirements of § 1804(a)(2)(A) by providing a statement of the nature and extent of its planned participation and an itemized estimate of the compensation it expects to request.
3. Along with any request for an award of compensation, Raw Bandwidth must show a significant financial hardship by establishing that it cannot afford, without undue hardship, to pay the cost of effective participation.
Dated December 22, 2003, at San Francisco, California.
/s/ STEVEN KOTZ for
Janice Grau
Administrative Law Judge
CERTIFICATE OF SERVICE
I certify that I have by mail, and by electronic mail to the parties to which an electronic mail address has been provided, this day served a true copy of the original attached Administrative Law Judge's Ruling Regarding Notice of Intent to Seek Compensation on all parties of record in this proceeding or their attorneys of record.
Dated December 22, 2003, at San Francisco, California.
/s/ KE HUANG
Ke Huang
NOTICE
Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to ensure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.
