VIII. Comments on Draft Decision
The draft decision of ALJ Econome in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7.
1. Although our holding in D.99-09-033 was expressly limited to SDG&E and SoCalGas, the rationale the Commission used to modify the decision (i.e., that the original disclaimer was not narrowly tailored to achieve an appropriate balance between commercial speech rights and the government's interest in promoting competition) applies to all utilities covered by the Rules.
2. The penalty assessed against PG&E in D.98-11-026 and D.99-03-025 was based on a violation of a Rule the Commission subsequently found to be overbroad (and by implication, unconstitutional as violating the First Amendment of the United States Constitution) unless modified.
1. Rule V.F.1 of the Affiliate Transaction Rules should be modified as set forth in the ordering paragraphs so that all utilities are now subject to Rule V.F.1, as modified by D.99-09-033.
2. Utilities should not be found in violation of the Affiliate Transaction Rules if they comply with either the original or modified version of Rule V.F.1.
3. Because PG&E's penalty was based on a violation of a Rule which we have found to be overbroad, we vacate the penalty we imposed on PG&E in D.98-11-026 and D.99-03-025.
4. In order to provide certainty to the utilities covered by the Rules and other affected parties, this decision should be effective immediately.
IT IS ORDERED that:
1. Rule V.F.1 of the Affiliate Transaction Rules (Rules) adopted by Decision (D.) 97-12-088, and modified by D.98-08-035 and other decisions, shall be modified to apply to all utilities covered by the Rules as follows:
F. Corporate Identification and Advertising
1. A utility shall not trade upon, promote, or advertise its affiliate's affiliation with the utility, nor allow the utility name or logo to be used by the affiliate or in any material circulated by the affiliate, unless it discloses in plain legible or audible language, on the first page or at the first point where the utility name or logo appears that:
a. The affiliate "is not the same company as [i.e., PG&E, Edison, the Gas Company, etc.], the utility," and the affiliate "is not regulated by the California Public Utilities Commission."
b. In the case of energy service provider affiliates, the disclaimer will be:
The affiliate "is not the same company as [i.e., PG&E, Edison, the Gas Company, etc], the utility, and the California Public Utilities Commission does not regulate the terms of [the affiliate's] products and services."
The application of the name/logo disclaimer is limited to the use of the name or logo in California.
2. The $1,680,000 penalty that the Commission imposed on Pacific Gas and Electric Company in D.98-11-026 and D.99-03-025 for violating Rule V.F.1 shall be vacated.
3. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
