5. The Reasonableness of Requested Compensation

GLIF requests a total of $392,966.75:⁴

Attorney Costs

Chris Witteman (1015.3 hours @ $250/hour) $253,825.00

Susan Brown (107 hours @ $260/hour) $ 27,820.00

Robert Gnaizda (194.65 hours @ $300/hour) $ 58,395.00

Subtotal $340,040.00

Expert Costs

John Gamboa (32.4 hours @ $250/hour) $ 8,100.00

Michael Phillips (63 hours@ $250/hour) $15,750.00

Thomas J. Hargadon (51 hours @ $250/hour) $12,750.00

Subtotal $36,600.00

Other Costs

Photocopies $ 3,299.55

Postage $ 56.54

Airfare $542.00

Depositions $9,912.75

Administrative Services $2,452.91

Exhibit Preparation $63.00

Subtotal $ 16,326.75

TOTAL $392,966.75

5.1 Overall Benefits of Participation

In D.98-04-059, the Commission adopted a requirement that a customer demonstrate that its participation was "productive," as that term is used in § 1801.3, where the Legislature provided guidance on program administration. (See D.98-04-059, mimeo. at 31-33, and Finding of Fact 42.) D.98-04-059 explained that participation must be productive in the sense that the costs of participation should bear a reasonable relationship to the benefits realized through such participation. D.98-04-059 directed customers to demonstrate productivity by assigning a reasonable dollar value to the benefits of their participation to ratepayers. This exercise assists us in determining the reasonableness of the request and in avoiding unproductive participation.

GLIF does not quantify in dollar terms the benefits ratepayers received by GLIF's initiation and handling of the complaint. Indeed, no penalty was imposed, and the remedies ordered were comparable to relief afforded in quasi-legislative rather than adjudicatory proceedings. Nevertheless, there are qualitative observations we can make that demonstrate the general level of effort by intervenors here, with certain hours disallowed as discussed below, was justifiable and productive. First, we found that disclosure to business customers that charges for voicemail services also include local usage charges for call retrieval and call forwarding was required by statute. Second, this proceeding may affect many new small businesses, many of which are minorities or novice business people. Third, we were the appropriate forum to resolve these issues as a similar case had been dismissed by the Superior Court based on the primary/exclusive jurisdiction of the Commission.

All of these factors lead us to conclude that GLIF's prosecution of the proceeding that led to D.01-04-037 was productive (after the disallowances discussed below) and yielded ratepayer benefits in excess of the costs incurred. We adopted many remedies or variations of remedies GLIF advocated. Although we did not sustain GLIF's allegations for the most part, or penalize Defendants as requested by GLIF, the remedies we adopted were based on the factual record developed by GLIF.

5.2 Hours Claimed

GLIF's request includes time records for Christopher Witteman, Susan Brown, Robert Gnaizda, and John Gamboa and invoices for two consultants, Michael Phillips and Thomas Hargadon. GLIF does not provide a summary by year of fees requested for each attorney and advocate.

GLIF states it attempted to perform an itemized allocation among the four issues it identified-tariff issues, billing issues, other disclosure and false advertising issues, and general, which includes time otherwise not divisible such as initial preparation time, research, etc. GLIF believes a fair allocation among would be approximately 25% of the total time for each of the four categories. GLIF's proposed 25% allocation appears reasonable overall for its attorneys' time; however, its consultants and expert worked on specific issues.

GLIF is not requesting compensation for time spent on this proceeding after December 22, 1999, when the Presiding Officer's decision issued, a reduction in total time of approximately 25%.⁵ GLIF also waives all time spent by Jose Hernandez. Pacific states GLIF's voluntary reduction in requested compensation should be given little weight, since GLIF spent that time on an unsuccessful appeal. Pacific further states that the time spent on this proceeding was excessive given the relief ordered-revisions to Pacific's tariffs and additional disclosures.

Although we have determined that GLIF was productive in this proceeding because GLIF substantially contributed to our findings on remedies, GLIF did not prevail on its deceptive practices allegations. Because GLIF devoted significant resources to proving the deceptive practices allegations without success, we must reduce GLIF's award. Accordingly, we will award compensation for all of GLIF's hours allocated to general, as these are costs incurred irrespective of outcome. We will reduce claimed hours for billing, tariff, other disclosure and false advertising by 50%. This reduction acknowledges that GLIF prevailed on many of the remedies it requested and that although remedies were only one third of the issues addressed in this proceeding, as defined by the scoping memo, some of GLIF's efforts related to deceptive practices were useful to demonstrate that remedies were appropriate. The reduction in hours reflects that GLIF's primary purpose in filing this complaint was to prove illegal conduct. Nonetheless, GLIF's corresponding concern, to correct defendants' tariffs, billing and marketing practices concerning business voicemail, required dedicated resources. By this reduction, we encourage the filing of complaints that address problems with service offerings, while acknowledging that the complainants' allegations may not be proved.

Witteman claimed 1,015.3 hours. We disallow 18.2 hours claimed by Witteman because the itemization notes the work performed was by three paralegals. We also disallow 46.8 hours expended by Witteman on a different proceeding, our General Order 96-B rulemaking, R.98-07-038. Six hours are related to preparation of the request for compensation and will be compensated at half the adopted hourly rate. These adjustments leave 944.3 hours to which we apply the reduction for failure to prevail described above. As described above, 25% of GLIF's attorneys' time was allocated to general; for Witteman this is 236.1 hours. The remainder of his hours should be reduced by 50%, resulting in compensable hours of 354.1 (50%(708.2)) related to remedies. Therefore, Witteman will be compensated for 590.2 hours (236.1 + (50%(708.2)) at his full hourly rate and 6.0 hours at half his hourly rate.

Brown claimed 107.0 hours. Three hours are related to preparation of the request for compensation and will be compensated at half the adopted hourly rate. We apply a reduction for failure to prevail to the remaining 104 hours. Twenty-five percent of Brown's time is allocated to general, equaling 26.0 hours, for which full compensation is awarded. The remainder of her hours should be reduced by 50%, resulting in fully compensable hours of 39.0 (50%(78.0)) related to remedies. Therefore, Brown will be compensated for 65.0 hours (26.0+(50% (78.0%)) at her full hourly rate and 3.0 hours at half her hourly rate.

Gnaizda claimed 194.7 hours. We disallow 4.8 hours in Gnaizda's request for discussions with outside counsel regarding representation in this proceeding. GLIF did not retain outside counsel. This disallowance leaves 189.9 hours to which we apply a reduction for failure to prevail. We allocate 25% of Gnaizda's time to general, 47.5 hours. The remainder of his hours should be reduced by 50%, resulting in compensable hours of 71.2 (50%(142.4)) related to remedies. Therefore, Gnaizda will be compensated for 118.7 hours (47.5+(50%(142.4))) at his full hourly rate.

Based on a review of the invoices and description of hours of experts, expert time was targeted to specific rather than general issues; therefore, we apply our reduction for failure to prevail on the full number of hours claimed. Gamboa claimed 32.4 hours. These hours should be reduced by 50%, resulting in compensable hours of 16.2 (50%(32.4)) related to remedies.⁶ Phillips claimed 63.0 hours. These hours should be reduced by 50%, resulting in compensable hours of 31.5 (50%(63.0)) related to remedies. Hargadon claimed 51.0 hours, resulting in compensable hours of 25.5 (50%(51.1)) related to remedies.

5.3 Hourly Rates

Section 1806 requires the Commission to compensate eligible parties at a rate that reflects the "market rate paid to persons of comparable training and experience who offer similar services." For work performed in 1999, GLIF proposes hourly rates of $300 for Gnaizda, $260 for Brown, $250 for Witteman, and $250 for Gamboa. In D.02-08-022 we adopted an hourly rate of $300 for Gnaizda and $275 for Brown in 1999. We will set hourly rates for Gnaizda as requested and will set Brown's rate as previously authorized.⁷

We previously set a $200 hourly rate for Witteman for 1999 in D.01-09-045, but more recently, we set Witteman's hourly rate for 2000 at $255. (D.02-07-030.) In this proceeding, Witteman's declaration notes his 16 years of experience, including 10 years of telecommunications experience as of 1999. In 1989, when he was in private practice, Witteman's billing rate was $185 an hour. Witteman was lead counsel for GLIF in this proceeding. Due to his years of experience and lead role in this proceeding, and in consideration of the $255/hour we have authorized for Witteman's work performed in 2000, we will set Witteman's rate for 1999 at $245 for this proceeding only.⁸

We previously adopted an hourly rate of $135 for Gamboa for 1998. GLIF notes that Gamboa is both Executive Director of Greenlining Institute and an expert in Latino/ethnic minority interests in telecommunications. Gamboa was employed by a major telephone utility for 11 years and has served on advisory and corporate partnership boards in his capacity as an expert in Latino/minority ethnic interests. Gamboa also has testified in numerous Commission proceedings over the past five years.

In D.02-05-011, we declined to modify Gamboa's authorized rate, because Gamboa participated in the underlying proceeding in his capacity as Executive Director of Greenlining Institute. In this proceeding, Gamboa's requested hours are almost exclusively in his capacity as an expert witness in Latino/ethnic minority interests in telecommunications. In D.02-05-011, we noted that experts provide different services to the market, and we discussed two witnesses' work in technical areas such as modeling and analysis. We also noted that we awarded witness Marcus $145/hour in 1997 and 1998. We raised Marcus' hourly rate to $150 for 1999 in D.00-02-008. In this proceeding, GLIF has not demonstrated what the market rate may be for persons with comparable training and experience in Gamboa's field.⁹ In light, however, of Gamboa's considerable experience before the Commission, we authorize an hourly rate of $150 for Gamboa for his participation as an expert; the new rate is an 11% increase over the rate we authorized for Gamboa's work in the year just prior to this proceeding.

We have reviewed the request for an hourly rate of $250 for expert Hargadon. The Commission has previously utilized this rate for work performed by Hargadon. (See D.01-09-045, D.96-06-029, and D.96-12-029.) Hargadon's previous testimony before this Commission and his employment in telecommunications consulting and media work justify the continued reasonableness of this rate for 1999. We set Phillips' hourly rate at $250 in D.94-11-055 and D.95-11-008. Phillips' prior testimony before the Commission, his expertise in Pacific's marketing practices and his background in business issues justify this rate for 1999.

5.4 Other Costs

GLIF requests $16,327 for photocopying, postage, airfare, administrative services, and depositions. We decline to authorize compensation for administrative duties provided by outside contractors. In prior decisions, including D.00-04-011, we have found that professional fees assume administrative and clerical overhead costs and are set accordingly. In its Amendment, GLIF states that the outside contractors provided paralegal, in addition to administrative support, but does not allocate the time spent on paralegal work. We will allow the separately itemized cost of $63 for preparation of exhibits by the outside contractors, a paralegal task. GLIF states airfare requested was for the attendance of two witnesses, Michelle Canas and Mary Ann Mitchell, at hearings. We will allow the request. We approve $13,873.84 in other costs.