4. Did TURN and UCAN Make a Substantial Contribution?

SBC/ASI oppose the request of TURN and UCAN for an award of intervenor compensation, arguing that these organizations came into the case late, conducted no discovery, and played only a limited role in the final resolution of issues. SBC/ASI state that TURN and UCAN representatives attended the settlement meetings by phone, rather than in person, and the issues they addressed were adequately presented by individual ISPs at those meetings. Finally, SBC/ASI argue that the NOI should have been filed earlier in this proceeding and that, in any event, the combined NOI/request for compensation was filed a day late and should be deemed untimely.

TURN and UCAN reply that they intentionally did not enter the case in order not to duplicate the litigation being pursued by CISPA, and that this conservative approach resulted in a relatively small compensation request of less than $23,000 for both TURN's and UCAN's time. TURN and UCAN state that only when CISPA decided to enter into a "controversial" settlement did the two organizations decide to intervene to protect the interests of their constituents. TURN and UCAN say they intervened with the support of independent ISPs and were able to advise those parties on Commission practice and some of the legal issues created by the proposed settlement. TURN and UCAN state that their filing of the NOI/request for compensation was not untimely, since the "final" decision in this case (D.03-09-009) came on September 5, 2003, while the NOI/request for compensation was filed on September 15, 2003. TURN and UCAN state that they chose the earlier substantive decision (D.03-07-032) to start the clock running and they ask that the Commission, if necessary, accept the filing one day late. As we have done in previous cases (see D.91-11-065, D.92-02-032), we deem the filing here timely given the circumstances of this proceeding. We note that while the claimed substantial contributions were to D.03-07-032, it was the later decision, D.03-09-009, that actually closed the proceeding.

More importantly, the standard for receiving intervenor compensation is based on the useful work performed by the intervenor, as reflected in the Commission's adopting positions or recommendations advocated by the claimant. The approach taken by SBC/ASI suggests that intervenors should receive compensation on the basis of showing up early in a proceeding and filing numerous documents. That is not the standard that we have followed. It is the usefulness of an intervenor's contribution that is and should be the gauge.

As we have noted above, the resolution of this proceeding reflects important contributions made by TURN and UCAN. We conclude that TURN and UCAN contributed to the Commission's decision-making process by persuading the Commission to adopt several of the intervenors' positions, in whole or in part, and by ensuring a full discussion of different substantive positions. It is clear that TURN and UCAN contributed substantially to the development of a quality record.

We find further that no reduction of compensation for duplication is warranted on this record. While some overlap with others was unavoidable, TURN and UCAN took steps to keep duplication to a minimum and to ensure that when it did happen, their work served to complement and assist the showings of the other parties.

TURN and UCAN acknowledge that it is difficult to assign a dollar value to the benefits achieved through their contribution to D.03-07-032. However, they contend, and we agree, that the costs claimed here are outweighed by the value of their contribution to the development of a quality record on the important substantive issues in this proceeding.