7. Comments on Alternate Draft Decision
The Commission received comments on the duplication reduction or penalty aspect of the Decision from Public Advocates (on behalf of numerous organizations it represents), TURN, Greenlining Institute/Latino Issues Forum and Verizon. On December 12, 2002, Public Advocates filed reply comments.
Verizon contends that the Commission may exercise some discretion in awarding reasonable compensation to parties who meet the criteria in Section 1803 for the costs associated with making a substantial contribution. In general, we agree. However, it is contrary to law, and an abuse of that discretion to create additional eligibility criteria beyond section 180313 or to arbitrarily reduce awards for substantial contributions based on "duplication" as D.98-04-059 purported to do. We must and do over-rule that decision to the extent that it permits such practices. Verizon's arguments to the contrary are unavailing. Its suggestion that no duplication penalty be assessed in this case illustrates the fundamentally arbitrary and standardless character of the discretion it would have the Commission assert.
Verizon argues that section 1801.3(f) provides legal support for the application of a duplication reduction, although it notes that it did not advocate for that result for any of the parties affected by the Decision. Verizon's position repeats the fundamental error of D. 98-04-059, which attempts to confect from a subdivision of an intent section, Public Utilities Code section 1801.3(f), a set of standards in addition to the substantive ones in section 1803, that are not consistent with the plain language of that subdivision and are not consistent with the other subdivisions of 1801.3. Verizon erects its edifice on a weak foundation -- an attempt to trivialize the fundamental element of intervenor compensation, substantial contribution, as a "minimal threshold" (Comments, page 2). To buttress its construct it proceeds to misread, through selective quotation and substitution of words not found in the statute for the words that are there, sections 1801.3(b),14 1802(a),15 1802.516 and 180417 as suggesting that after the Commission has found substantial contribution, it may nevertheless refuse to award the reasonable costs associated with making that substantial contribution. As Public Advocates points out, this is not consistent either with the language of the statute or the consistent interpretation of similar statutes by the appellate courts. We decline to adopt the suggestion.
Verizon's effort to rehabilitate D.98-04-059, through a more thorough and complete misreading of the statute than was attempted in the original order, is grounded on an attempt to create the fiction that in enacting AB 1975 the Legislature was concerned to confine and limit compensation for participation in the interest of "efficient proceedings." This chimera should be contrasted with the plain language of AB 1975, which shows throughout the Legislature's intention to "encourage participation" by providing that "intervenors be compensated" if they make a substantial contribution to the commission's proceedings and whose participation imposes financial hardship. D. 98-04-059 was rooted in a contrary attitude of overt hostility to regulation and participation in its processes, and was intended to limit participation through a variety of devices based on a misreading of portions of the statute. TURN correctly notes that this is contrary to the evident intent of the Legislature and that repudiating it on this point restores the operation and effect of the statute.
As TURN points out, the discipline imposed by AB 1975 is rooted in the requirement that a compensated intervenor make a substantial contribution to the outcome. As Verizon recognizes, unnecessary or unproductive participation - that is, participation that does not make a substantial contribution as the statute defines it - is not eligible for compensation; Verizon's error is to trivialize that requirement as a justification for attempting to expand upon that fundamental limitation by creating additional obstacles intended to discourage participation, rather than encourage it. As Verizon notes, "...[T]he Commission may consider the duplicative nature of a party's participation in determining whether that party has made a substantial contribution" (Comments at 5) because wholly redundant or derived participation is neither productive nor necessary. But once the Commission has found the substantial contribution, the statute requires compensation and does not permit the arbitrary reduction contemplated by D.98-04-059. Any other approach would discourage participation, contrary to the statute. We will encourage, not discourage, customer participation in the future, and we will compensate that participation when it makes a substantial contribution and imposes a financial hardship on the customer.
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13 Verizon does not attempt to defend over-ruled Finding 13 of D.98-04-059, purporting to interpret 1801.3(f). 14 1801.3(b) establishes an intention to "encourage the effective and efficient participation of all groups that have a stake in the regulatory process." The Comments (at page 7) incorrectly and arbitrarily transmute this to "solicitude for efficiency of presentation in proceedings." What is to be made efficient and effective is the participation of all the groups that have a stake in the process. 15 1802(a) defines "Compensation" as "payment for all or part of ... reasonable costs of preparation and participation in a proceeding...." The reference to "part or all" is clearly to 1802(h), which permits a substantial contribution finding based on part of the customer's participation. The Comments suggest (at page 8) that 1802(a) should instead be read as "all or part of the reasonable costs of making the substantial contribution" - i.e., as permitting a partial payment (discount) of that portion of the costs of preparation and participation that are associated with making the substantial contribution. This does violence to the plain meaning of the statute. 16 Section 1802.5 permits compensation even for parties that "complement, supplement or contribute to the presentation of another party." The words of the statute describe participation that is wholly dependent on - additive to or completing - the participation of another party. Merriam-Webster Collegiate Dictionary, Tenth Edition, defines "complement" (at page 235), "supplement" (at page 1180) and "contribute" (at page 252) in precisely this manner. The Comments attempt to generalize the permission for compensation even in this extremely narrow and marginal circumstance to infer its opposite -- a discretionary penalty applicable to any independent participation that makes a substantial contribution but overlaps with contributions made by others. The discussion in the Comments (pages 6-7) about the significance of the use of the permissive in section 1802.5 misses the point that that section permits compensation even in the marginal circumstance that the substantial contribution is derived from the activity of another party, so long as the Commission finds a substantial contribution. It is wholly irrelevant to the question of whether the statute permits only partial payment for the costs of independent participation that makes a substantial contribution. That issue is resolved by section 1803. 17 Section 1804 describes procedures for determining eligibility and payments. The Comments seize on 1804(b)(2) as providing some evidence of legislative intent that the Commission may exercise discretion to penalize participation that duplicates. (Pages 4-5) The subdivision authorizes an advisory ruling that points out various matters including "areas of potential duplication in showings...that may affect the customer's ultimate claim for compensation." Verizon contends that not to invent an otherwise unsupported duplication penalty or discount would render this language in the subdivision meaningless. To the contrary, Verizon must create from whole cloth the inference that the "affect" must be negative - something the Legislature was careful not to do - in order to find support for its argument. A more reasonable and natural reading is that the advisory ruling would accomplish what the legislature said it intended in 1801.3(b): to make the parties' participation more effective and efficient by pointing out synergies and collaborative opportunities that would permit them to reduce their costs while remaining effective in making the presentation that will assist the Commission - i.e., make the substantial contribution.
