3. Substantial Contribution to Resolution of Issues

Under § 1802(h), a party may make a substantial contribution to a decision in one of several ways. It may offer a factual or legal contention upon which the Commission relied in making a decision, or it may advance a specific policy or procedural recommendation that the ALJ or Commission adopted. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.³

Aglet states its participation in D.01-03-082 focused on the relationship between the utilities and their holding companies, and certain rate relief issues. Aglet argued in support of TURN's petition to revise accounting rules during the transition period, and against utility claims of retroactive ratemaking. Additionally, Aglet argued against an end to the rate freeze under AB 1890. Although the Commission did not adopt Aglet's proposals on the holding companies or on rate relief, we recognize Aglet's substantial contribution in support of the change in accounting rules, particularly for its arguments against including certain non-transition costs in the Transition Cost Balancing Account. We also recognize its substantial contribution in arguing against ending the rate freeze. We adopted both of these positions in D.01-03-082. Furthermore, while we did not adopt Aglet's contentions on the holding companies, we believe they substantially contributed to a better understanding of these relationships. Since the Commission did not adopt Aglet's positions on rate relief or holding companies, Aglet voluntarily reduced its professional time on these issues by 50%, and the reduction is reflected in today's award. Although Aglet made this voluntary reduction in its compensation request, we have not made a final determination of the role of holding companies relative to utilities. Therefore, we are providing notice to Aglet that if a future Commission opinion adopts its position relative to holding companies, Aglet will have an opportunity to seek compensation for that 50% portion not included in this request.

In D.01-03-081 and D.01-04-005, we addressed the implementation of AB 1X and associated issues. In this phase of the proceeding Aglet argued that the utilities have a continuing obligation to serve customers, and that DWR is not required to provide all "net-short" energy. In D.01-03-081 we noted Aglet's position on this matter in our footnote (p.12, footnote 10), which is our adopted position. In D.01-03-081 Aglet also argued for not allowing the utilities to retain revenues not explicitly included in the categories covered by § 360.5. We adopted Aglet's position on these issues (D.01-03-081, pp. 19-20; D.01-04-005, pp.12-13) and believe that they made a substantial contribution to excluding revenues which are not associated with generation costs. We emphasized our position on these excluded costs when we requested comments on proposed Findings of Fact (p.29, D.01-03-081) and when we adopted these findings in D.01-04-005 (p.24). As noted by our discussion of generation costs in both decisions, we recognize the substantial contribution Aglet provided on this issue.

In D.01-05-064, we allocated the three-cent increase in rates to customer classes authorized by D.01-03-082. Aglet participated on three major allocation issues. On the first issue, Aglet recommended a minimum revenue requirement, without amortization of shortfalls. However, after DWR provided the Commission its revenue requirement of about $9.2 billion on May 2, 2001, it was apparent that we could not adopt a minimum revenue requirement. While we were unable to adopt Aglet's recommendation, we believe Aglet's participation was useful and substantially contributed to our overall resolution on this issue.

On the second issue, Aglet proposed that allocation of the revenue requirement to non-exempt customer classes be by equal cents per kWh, and that the shortfalls created by reducing the surcharge to exempted customer classes should be allocated to all other customers. As discussed in D.01-05-064, and in our findings (Findings of Fact 13, p.56), we adopted this position. Although we did not reference Aglet, nevertheless we believe Aglet's participation and its arguments provided a substantial contribution on this issue.

On the third issue, Aglet recommended a tiered rate design for residential customers, while opposing tiered rates for commercial customers. As adopted by D.01-05-064, we choose to provide five tiers for residential rate design, and did not adopt rate tiers for commercial customers. (D.01-05-064, pp. 35-38). We have also made other rate design determinations which are consistent with the positions taken in Aglet's brief. Some of these proposals were also made by other parties, however, taken as a whole, we believe they support Aglet's argument that it made a substantial contribution on rate design issues.

We agree with Aglet that the standard of substantial contribution under § 1802 does not require a unique contribution by a customer, as argued by Edison. Instead, as clearly stated in the statute, a customer's presentation must substantially assist the Commission in making its order or decision. We also agree that Aglet's substantial contribution does not duplicate the work of TURN or any other party, but was a cooperative effort to further their position in this proceeding. As described in § 1802.5, participation by a customer that materially supplements, complements, or contributes to the presentation of another party may be fully eligible for compensation.

³ The Commission has provided compensation even when the position advanced by the intervenor is rejected. D.89-03-063 (awarding San Luis Obispo Mothers For Peace and Rochelle Becker compensation in Diablo Canyon Rate Case because their arguments, while ultimately unsuccessful, forced the utility to thoroughly document the safety issues involved). See also D.89-09-103, order modifying D.89-03-063. (In certain exceptional circumstances, the Commission may find that a party has made a substantial contribution in the absence of the adoption of any of its recommendations. Such a liberalized standard should be utilized only in cases where a strong public policy exists to encourage intervenor participation because of factors not present in the usual Commission proceeding. These factors must include 1) an extraordinarily complex proceeding, and 2) a case of unusual importance. Additionally, the Commission may consider the presence of a proposed settlement.)