5. Contributions to Resolution of Issues

A party may make a contribution to a Commission decision by raising a factual or legal issue upon which the Commission relied in making a decision,⁸ or advancing a specific policy or procedural recommendation that the ALJ or Commission adopted.⁹ A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.¹⁰ Under certain circumstances, the Commission has provided compensation even when the position advanced by the intervenor is rejected, but the intervenor has nonetheless made a substantial contribution to the decision.¹¹

UCAN argues that it has made a substantial contribution in this matter because the following factual and legal assertions raised by UCAN were admitted by MCI and adopted in the Commission's decision:

· MCI failed to give customers timely or adequate notice of a major rate increase on MCI's intra LATA calls.

· MCI misassigned and billed customers to the wrong calling plan by not charging the $0.04 per minute flat rate to some intraLATA calls.

· MCI unlawfully engaged in one-minute overbilling on intraLATA calls.

· MCI's customer service representatives improperly required customers to provide a social security number as a condition of service.

MCI contends that UCAN has not made a substantial contribution because MCI had already discovered the one minute overbilling problems and the assignment of customers to the wrong calling plan before the filing of the complaint and was already making restitution to customers. MCI acknowledges that it did not learn of its failure to notify customers of the rate increase for intraLATA local toll calls until after the filing of the complaint, but states that it then promptly began to refund affected customers. MCI further argues that UCAN unnecessarily filed this litigation, because MCI would have worked informally with UCAN to resolve the issues.

The parties place great emphasis on arguments related to whether MCI knew of the billing errors before UCAN initiated this proceeding.¹² However, even if MCI had already discovered the billing errors, UCAN still made a substantial contribution to D.99-04-053 by bringing the billing errors to the attention of the Commission and requesting an audit of MCI's restitution efforts. The ALJ adopted this recommendation by ordering CSD to review MCI's records to determine the scope of the billing errors and MCI's efforts to provide restitution.

If UCAN had not raised the issue of MCI's billing errors and requested an audit, a significant number of affected customers would not have been identified and/or would not have received the refunds or credits to which they were entitled. For example, a second report by CSD dated February 4, 2000, states that while MCI originally refunded or credited customers $96,712 based on the one minute overbilling problem, MCI paid customers an additional $290,953 in restitution after CSD discovered a programming error in identifying customers. Seventy-five percent of the customers who were paid restitution based on the one-minute overbilling problem were identified after CSD identified this programming error. The February 19, 1999 CSD report also showed that a number of customers who were not billed the $0.04 flat rate for local toll calls may not have received their refunds. The same report noted a number of other deficiencies in MCI's restitution efforts, including the use of a questionable methodology to calculate refunds and credits, the failure of MCI to credit customers for taxes and surcharges paid on overbilled amounts or to reduce the balances owed by overbilled amounts, and the fact that a number of customers did not receive their refunds.

MCI's argument that UCAN's participation only duplicated the efforts of CSD is also without merit. UCAN's role was to represent customers affected by MCI's billing errors, while the role of CSD was to perform an independent review of MCI's records and make a report to the ALJ on the correction of the billing problems and the restitution efforts. The fact that both parties, including UCAN, worked with CSD during its review of MCI's records does not mean that either party performed the same function as CSD. Further, UCAN would nonetheless be eligible for an award of intervenor compensation because by raising the issues related to MCI's billing errors and requesting an audit, UCAN contributed to and complemented CSD's efforts to verify whether all affected customers had been identified and refunded or credited. Public Utilities Code Section 1802.5.

We have previously stated our inclination to review a customer's recommendations broadly, rather than narrowly, in considering whether a substantial contribution has been made. See D.98-04-059, p. 46. We find that UCAN has made a substantial contribution to this proceeding.