Discussion

First, we address the procedural objections of Pacific Bell. Pacific Bell objects to the granting of the motion. Pacific Bell contends that there is no urgency to resolve the Petition absent a pending discovery dispute.

Pacific Bell notes that there is no factual support, via affidavits or declarations, for an expedited response time.

We disagree. Rule 45(h) of the Commission's Rules of Practice and Procedure states that "[n]othing in this rule prevents the Commission or the administrative law judge from ruling on a motion before responses or replies are filed." The ALJ did that here after consultation with the assigned commissioner. Given that the audit was ordered in June 1994, more than seven years ago, good cause likewise exists for shortening the response time. The Commission wishes to avoid any more unnecessary delays in the completion of the audit.

We next address the substantive objections of Pacific Bell. Pacific Bell does not challenge the general right of ORA to obtain information in performing its duties. Pacific Bell asserts that the Commission, in affirming the oversight transfer, unambiguously directed how ORA would thereafter participate in the audit. D.01-02-041 at p. 5 states that "when the Pacific Bell audit information and results are submitted in the NRF proceeding, ORA shall have discovery rights, as do other parties in the proceeding." Pacific Bell reiterates that the Commission ordered one audit, not two.

Pacific Bell adds that this articulation is consistent with statute. ORA represents consumers "in commission proceedings." (Pub. Util. Code § 309.5(a)). The Commission is directed to provide resources to ORA to participate in "all significant proceedings." (Pub. Util. Code § 309.5 (c)). Pacific Bell concludes that the "proceeding," along with ORA's associated discovery rights, commences upon filing of the audit.

Lastly, Pacific Bell contends that the Commission cannot modify its decision without providing an "opportunity to be heard". (Pub. Util. Code § 1708). Pacific Bell argues that it is entitled to a hearing to resolve material factual issues concerning the time, expense and waste of resources resulting from granting the Petition. (California Trucking Assn. v. Public Utilities Commission (1977) 19 Cal.3d 240, 244.)

Pacific Bell is correct that "[w]hat is at issue in this matter is . . . the degree and extent to which it [ORA] can or should participate in the audit" via discovery. (Pacific Bell Response, p. 4.) Like the Telecommunications Division, ORA must comply with the audit directives of the Commission. We did not order a second audit report from ORA. We cannot allow ORA to expand the scope of the audit through unlimited and unchecked discovery. To do so would defeat the very purpose of transferring the audit management from ORA to the Telecommunications Division.

The subject audit requirements are set forth in D.96-05-036. The Commission had rejected ORA's initial audit plan for lack of specificity and outlined the scope in D.96-05-036. The audit must conform to the D.96-05-036 requirements absent any subsequent Commission decision altering these requirements. D.96-05-036 states in pertinent part:

"The services we are authorizing DRA to procure are limited to an in-depth audit, on an account-by-account basis, with all appropriate, detailed follow-up. The resulting work product should include an analysis of all issues uncovered, including any relevant documentation. This work product should not include lengthy policy discussions. The Commission seeks accurate and fully supported factual analysis. Recommendations as to specific accounting measures would also be welcome. "

We make the following observations. First, the record does not show that ORA is being denied access to the audit data request information provided by Pacific Bell to the Telecommunications Division. Second, there appears to be no dispute that ORA is entitled to the audit data request information provided by Pacific Bell to the Telecommunications Division. Third, existing procedures for resolving disputes over access to utility information appear to be adequate.

ORA's discovery disputes are governed by Public Utilities Code § 309.5(e). It sets forth in considerable detail the discovery enforcement procedure to be followed, including a determination by an Assigned Commissioner. Public Utilities Code § 314 "applies only in the relatively restricted circumstances of demands for inspection and examinations independent of other proceedings." (In the Matter of the Application of Roseville Telephone Company for Authorization to Implement a Plan of Reorganization Which Will Result in a Holding Company, (1996) 67 CPUC2d 145 [D.96-07-059].) "It does not govern discovery and evidentiary matters in any other inquiry, investigation, hearing or proceeding which fall under Section 311(a)." (Id.)

ORA is not seeking to compel the inspection of any books and records of Pacific Bell here. Similarly, ORA is not seeking to compel responses to any specific data requests. It is therefore impractical, if not impossible, to determine what information sought by ORA would be within the scope of the audit. If a discovery dispute does in fact arise between ORA and Pacific Bell, the Assigned Commissioner should render a decision pursuant to Section 309.5(e). For all of these reasons, we do not believe that further clarification by the Commission is warranted at this time.

We will, nonetheless, modify D.01-02-041 to remove the language addressing the right of ORA to discovery. The subject language is dicta. The subject language is not supported by findings of fact or conclusions of law in D.01-02-041. It is not essential to the decision on rehearing and does not serve to amend, alter or rescind any previous decision. Indeed, neither TURN nor ORA alleged legal error with respect to discovery. We need not go any further than to remove the language since it is not part of the Commission's decision.

Because only dicta is omitted, we are not modifying the principal direction of D.01-02-041, i.e., that the Telecommunications Division and not ORA will be responsible for the designated audit of Pacific Bell directed in D.94-06-011 and subsequent decisions. There are no factual issues to resolve on which the opportunity for hearing would shed any light. Therefore, no hearing pursuant to § 1708 need be provided at this time.

Conclusion

The Petition is granted in part. Dicta in D.01-02-041 which addressed the discovery rights of ORA is hereby removed. We clarify that ORA is entitled to access data request information provided by Pacific Bell to our Telecommunications Division in the course of the audit. We decline to provide any further clarification at this time.

Comments

The draft alternate decision of Commissioner Duque in this matter was mailed to the parties in accordance with Section 311(g)(1) of the Public Utilities Code and Rule 77.6(f) of the Rules of Practice and Procedure. The interested parties stipulated to a shortened comment period, with comments being due on July 9, 2001. Comments were filed on ___________. No reply comments were permitted.

Findings of Fact

1. On March 1, 2001, ORA filed a Petition seeking modification to D.01-02-041 to clarify its discovery rights.

2. D.01-02-041, a rehearing decision, affirmed the transfer of the Pacific Bell audit oversight from ORA to the Telecommunications Division.

3. The audit was originally ordered in June 1994.

4. The Commission outlined the audit scope in D.96-05-036.

5. There are no pending discovery disputes referenced in the Petition or the responses thereto.

6. There are no findings of fact or conclusions of law in D.01-02-041.

Conclusions of Law

1. The Petition satisfies the requirements of Rule 47.

2. No hearing is required pursuant to § 1708 since the matters determined are all matters of law on which the parties have had an adequate opportunity to present their positions.

3. Rule 45 permitted the ALJ to rule on ORA's motion before

responses were filed.

4. Language in D.01-02-041 concerning ORA's discovery rights is dicta.

5. ORA's discovery disputes are governed by Public Utilities Code § 309.5(e). It provides that any objections to ORA discovery are to be resolved by the Assigned Commissioner.

6. Public Utilities Code § 314 applies only in the relatively restricted circumstances of demands for inspection and examinations independent of other proceedings.

ORDER

3. ORA's Petition for Modification of D.01-02-041 is granted in part, as set forth in this order.

4. The following phrase at p.5 of D.01-02-041 is removed: "Therefore, when the Pacific Bell audit information and results are submitted in the NRF proceeding." The remaining sentence shall now read "ORA shall have discovery rights, as do other parties in the proceeding."

This order is effective today.

Dated , at San Francisco, California.