ALJ/MCK/t95/tcg DRAFT 1

7/12/01

Decision DRAFT DECISION OF ALJ MCKENZIE (Mailed 6/11/2001)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Investigation on the Commission's own motion into the matter of Competitive Access to Customer List Information. And Related Matters.

Investigation 90-01-033 (Filed January 24, 1990) Application 89-07-030 (Filed July 17, 1989) (I&S) Case 86-06-004 (Filed June 4, 1986)

OPINON DENYING PETITION OF CALIFORNIA NARCOTIC OFFICERS' ASSOCIATION TO MODIFY DECISION 90-12-121

In this decision, we deny the petition to modify Decision (D.) 90-12-121 that was filed on August 30, 2000 by the California Narcotic Officers' Association (Narcotic Officers or CNOA). That petition seeks to remove language from D.90-12-121 requiring Pacific Gas and Electric Company (PG&E) to modify its tariffs so that PG&E would not release customer information to law enforcement officers except pursuant to "legal process"; i.e., a warrant or subpoena duces tecum subsequently approved by a judge.¹ For the reasons set forth below, we conclude that the Narcotic Officers have failed to demonstrate good cause for modifying the tariff language required by D.90-12-121, and so we deny the petition to modify.

Procedural Background

Order Instituting Investigation (OII) 90-01-033 was issued on January 24, 1990. The purpose of the proceeding - which has often been referred to as the "List OII" - was "to consider what customer list information possessed by public utilities in California should be made available to competitors and other utilities and what measures should be taken by the Commission to protect the privacy of customer information." (OII, page 1.) In order to consider these issues, 22 local exchange carriers were made respondents, as well as four energy utilities including PG&E. All of the respondents were directed to submit comments answering 11 broadly-phrased questions. Pursuant to this directive, opening comments were filed on May 14, 1990, and reply comments on July 9, 1990.

D.90-12-121 was issued in response to these comments. The main ruling in the decision was that the energy utilities should be dismissed as respondents, because "the present stated practice at all respondent energy utilities is not to make commercial use of customer information," and because "any possible future demand for information by [cogeneration and demand-side management vendors or alternate gas suppliers] can be better addressed in individual energy proceedings or a later OII specific to the energy utilities." (Mimeo. at 10.)

The ruling that the Narcotic Officers want modified was an incidental part of the discussion dismissing the energy utilities. PG&E's comments had indicated that it did not release customer information to third parties without the customer's permission except, inter alia, "to law enforcement agencies, whether or not the request is supported by a subpoena." (Id. at 4.) In response to this statement of PG&E's policy, the Commission stated:

"We also direct respondent PG&E to modify its current practices to be in line with those of the other three energy utilities, so as not to release information except pursuant to legal process, rather than merely upon request of law enforcement agencies whether or not supported by subpoenas." (Id. at 11.)

Pursuant to this statement, Ordering Paragraph (OP) 3 of D.90-12-121 directed PG&E to modify its procedures for responding to customer information requests from law enforcement agencies by requiring legal process.

"The issuance of a subpoena duces tecum pursuant to section 1326 of the Penal Code . . . is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them."