4. Substantial Contribution to Resolution of
Issues
Pursuant to Pub. Util. Code § 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 administrative law judge (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
GLIF believes it has substantially contributed to D.01-04-037, because the Commission, in seven of nine ordering paragraphs, ordered relief on a going forward basis. Pacific states that GLIF did not make a substantial contribution and failed to allocate its effort to the specific findings, conclusions and directives in D.01-04-037. In its Amendment, GLIF contends that D.02-09-022, an order modifying D.01-04-037, but denying rehearing, provides additional support for a determination that GLIF made a substantial contribution to the resolution of this proceeding, because it adopts another variation of a remedy recommended by GLIF. Pacific responds that the rehearing order rejected GLIF's arguments but provided clarification of the earlier order.
As identified in the April 16, 1999, Assigned Commissioner's scoping memo, the primary issues in this proceeding were: 1) Defendants' intent to deceive customers about the total costs of business voicemail; 2) whether or not deception occurred; and 3) the scope of any remedies, as appropriate. GLIF did not prevail on the deception issues but did contribute to the remedies ordered in D.01-04-037.
Demonstration of substantial contribution is difficult in a proceeding such as this one, where a complaint is brought alleging deceptive practices, where the specific allegation is not proven but more generic remedies are fashioned. GLIF alleged Defendants filed ambiguous tariffs and failed to disclose call forwarding's role and charges in the use of business voicemail and the costs of retrieving messages. GLIF attempted to prove the failure to disclose such practices was deliberate and deceptive. We disagreed, although we concurred that Defendants' practices needed modification.
GLIF recommended the Commission mandate disclosures in Defendants' advertising of and billing for voicemail services, and require Defendants to rewrite their tariffs to disclose usage charges. GLIF further recommended that the Commission order Defendants to comply with Pub. Util. Code § 2890 and to quote rate information in a clear and concise manner. We ordered relief consistent with these recommendations. GLIF also recommended we order newspaper ads, an independent study of Defendants' practices, a public education advertising campaign, and appointment of consumer ombudsmen. We did not order that relief. Although we agree that GLIF made substantial contributions to D.01-04-037 in that we ordered clarifications to billing, tariff and disclosure procedures, we also recognize that GLIF did not prevail on the violations alleged and must correspondingly reduce its request, as discussed below.
3 The Commission has provided compensation even when the position advanced by the intervenor is rejected. D.89-03-063 awarded 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, which stated that 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.)
