ALJ/TOM/eap DRAFT CA-3

Agenda ID # 691

8/8/2002

Decision

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

George M. Sawaya, Complainant, vs. MCI Telecommunications Corp. (U-5011-C), a.k.a. MCI WorldCom and MCI WorldCom, Inc., Defendant.

Case 00-04-029 (Filed April 18, 2000)

OPINION ON REQUEST FOR INTERVENOR COMPENSATION

This decision awards $3,148.29 to George M. Sawaya for intervenor compensation based on his substantial contribution to Decision (D.) 01-11-017.

1. Background

Sawaya filed the above-captioned complaint alleging that although the Commission, in D.00-02-044, had ordered Defendant MCI Telecommunications Corp. (MCI) to pay Sawaya intervenor compensation of $l, 036.13, plus interest, by March 17, 2000,¹ Sawaya had not received payment from MCI. Sawaya sought two forms of relief: (1) Commission enforcement of its order in D.00-02-044 for the payment of intervenor compensation to Sawaya, and (2) the imposition of a penalty against MCI, based on MCI's failure to comply with the Commission's order. MCI responded that MCI had twice paid Sawaya the amount owed pursuant to D.00-02-044.

At the June 23, 2000 prehearing conference (PHC), Sawaya stated that he had received payment from MCI 67 days late, and MCI subsequently admitted that it had not complied with the Commission order to pay Sawaya intervenor compensation on time. The parties acknowledged at the PHC and throughout the proceeding that the only remaining issues for the Commission to decide were whether to impose a penalty against MCI based on the late payment and the amount of the penalty to be imposed, if any.

On November 22, 2000, MCI filed a motion for summary judgment. The motion argued that MCI was entitled to a judgment in its favor because: 1) MCI had paid Sawaya the intervenor compensation owed; and 2) undisputed facts showed that MCI had taken reasonable steps to comply with the Commission order on time and that upon learning of the delays, MCI took action to ensure that Sawaya and the other intervenors were paid. Sawaya opposed the motion, and on February 1, 2001, the assigned Administrative Law Judge (ALJ) denied the motion on the grounds that factual questions existed, such as whether MCI took all reasonable and necessary steps to avoid the delay in payment to Sawaya. An evidentiary hearing was held on February 6, 2001.

On May 2, 2001, the assigned ALJ mailed her Presiding Officer's decision (POD), which dismissed Sawaya's complaint. The POD declined to impose penalties on MCI, because MCI had attempted to comply with the Commission order, but had encountered unforeseen problems in complying with its first intervenor compensation payment. The POD found that once MCI was informed of the delay in payment, MCI took reasonable steps to rectify the violation. The POD also reasoned that Sawaya had not suffered economic harm, because MCI paid Sawaya both the intervenor compensation and interest ordered by Commission, plus additional interest to compensate for the delay in payment. However, the POD warned MCI that failure to timely comply with future intervenor compensation orders may result in sanctions.

The POD also addressed a motion for sanctions previously made by Sawaya. The motion asserted that MCI had violated Rule 1 by stating in the answer that MCI had paid him twice, when he had in fact been paid only once. The POD denied the motion, finding that MCI had sent Sawaya two checks due to its belief that the first check had been misdirected and was lost. Sawaya subsequently received and deposited both checks. Therefore, at the time of filing its answer, MCI understood that Sawaya had received two payments. However, the POD noted that MCI could reasonably have assumed, based on normal banking practices, that the bank would honor MCI's stop payment request on the first check and therefore admonished MCI to avoid unclear and misleading statements in future pleadings.²

On May 18, 2001, Sawaya filed an appeal of the POD, which alleged that the POD contained 10 critical errors. Upon review of the appeal, we made minor textual changes to the POD for clarification, but these changes did not result in any substantive revision of the POD. The Commission approved the modified POD on November 8, 2001.