6. Application of Section 1801.3 to Create a "Duplication Reduction"
Pub. Util. Code section 1803 requires that the Commission award compensation to "any customer" who makes a substantial contribution to the outcome of a proceeding and whose participation6 imposes a significant financial hardship. Section 1801.3 contains an authoritative expression of the Legislature's intent in enacting the intervenor compensation program. During the era of deregulation the Commissioners interpreted this section, and particularly subdivision 1801.3(f), as imposing restrictions on intervenor compensation that the text of the statute does not support. Most notably in its decision Commission's Intervenor Compensation Program, D.98-04-059, 79 CPUC 2d 628 (April 23, 1998)7 the Commission attempted to decisively narrow customer participation at the Commission by selectively elevating section 1801.3(f) to a "standard" for compensation that would limit or preclude many types of customer participation at the CPUC, while ignoring other and more prominent subdivisions of that section such as 1801.3(b). 79 CPUC2d 628, 649-50.
The ideological basis for this narrowing was made apparent in the decision. The Commissioners opined that:
[A]s the telecommunications and energy industries become increasingly competitive, the participation of customers, separate and apart from their representation through ORA or CSD, may not be necessary. We must begin to more critically assess, at the outset of a proceeding, whether the participation of these `third-party' customers, separate and apart from their representation through ORA or CSD, is necessary, both in terms of non-duplication and in terms of a fair determination of the proceeding.
79 CPUC2d 628 at 649, emphasis added.
This statement envisions a peetering out of 3rd party consumer advocacy as regulation "withers away" and is replaced with competition. It is at odds with reality and the experience of California over the past several years. And its cavalier dismissal of active customer participation in Commission proceedings cannot be reconciled with other substantive and intent provisions of the statute, particularly with Pub. Util. Code section 1801.3(b), which provides:
6 Although Article 5 of Chapter 9 of the Public Utilities Act is denominated "Intervenor's Fees and Expenses" it applies to "participation or intervention in any proceeding." Participation is broader than formal intervention as a party. 7 D.98-04-059 was issued in a combination rulemaking/investigation, R.97-01-009/I.97-01-010, commenced to consider generic issues in the Commission's implementation of the Legislature's intervenor compensation legislation in light of its view of changing regulatory practices and in light of the "Alkon Report," described as a study of the compensation program. 79 CPUC 2d 628, 636-37
