III. Advisory Board Structure and Membership Issues
A. Advisory Board Structure
Public Utilities Code Section 278 (a)(1) states that commencing on July 1, 2003, the TADDAC, formerly the DDTPAC, is created as "an advisory board to advise the commission regarding the development, implementation, and administration" of the DDTP. While AB 1734 discusses the TADDAC as a replacement board for the DDTPAC, the legislation never refers to the CRSAC or the EPAC. According to the DDTPAC and the Commission's Telecommunications Division (TD), both the CRSAC and EPAC have been instrumental in the past successes of the program including the implementation of Speech-to-Speech as part of the CRS and the inclusion of an artificial larynx on the list of equipment available to qualified Californians. Additionally, several CRSAC and EPAC members represent consumer groups and are users of the program. As users, the committee members are able to monitor the quality of the services and equipment used. They can also recognize deficiencies and provide options for solutions. We understand the importance of the CRSAC and the EPAC and agree that the two committees are a crucial part of the structure of the DDTP. We, therefore, establish the CRSAC and EPAC as advisory committees of the DDTP program.
With regard to the chain of command structure of the committees, members of the current EPAC and CRSAC expressed concern that issues they consider important do not always make it past the DDTPAC to the Commission. TD considered recommending that the EPAC and CRSAC should be equal to the TADDAC and should make recommendations directly to the Commission. However, participants at an October 9, 2002 workshop2 strongly agreed that the Commission should receive recommendations from one source, not three; thereby creating a way to prioritize consumer recommendations and eliminate duplication. We agree that having one source of recommendations facilitates the delivery and implementation of recommendations. Therefore, we maintain the current structure whereby the EPAC and CRSAC provide recommendations on the Equipment Program and the California Relay Service to the TADDAC.
B. TTY Placement Program (TPP)
In their comments filed pursuant to this rulemaking, the DDTPAC, California Coalition of Agencies Serving the Deaf and Hard of Hearing (Coalition), and Winston Ching (Ching) all assert that the TPP program should be under the purview of the DDTP program, rather than the Payphone Service Providers Committee (PSPC).
According to the DDTPAC, the Public Utilities Code is contradictory regarding the oversight body for the TTY Placement Program. Section 279(a)3 assigns to the PSPC the responsibility to:
...provide for the placement of telecommunications devices capable of servicing the needs of the deaf or the hearing impaired in existing buildings and public accommodations, as specified in subdivision (a) of 2881.2."
Section 2881.4 states that the Commission may contract with entities or individuals to provide, manage, or operate the programs described in §§ 2881, 2881.1 and 2881.2. According to the DDTPAC, that implies that both of these programs (the DDTP and the TPP) should be managed or operated jointly. The DDTPAC adds that since § 2881.4 (which resulted from AB 1734) was added after § 279 (which resulted from SB 669), one can interpret that AB 1734 amended SB 669 with respect to this issue, and that the DDTP and the TTY Placement Program are both intended to be under the advisory oversight of the TADDAC.
The Coalition states that the Commission established a new PSPC subcommittee, the TDD Placement Interim Committee (TPIC) to provide oversight and direction, but in implementing SB 669, the Commission discontinued TPIC as a separate committee and merged its membership with the PSPC. (D.02-04-059). According to the Coalition, the PSPC has not been effective in administration of the program:
The Program, which was slow to be implemented, has been functionally moribund since it was taken in house in October 2001. Although the TPIC had established a goal of placing 1000 TTYs by now, only a relative handful have been placed so far. The Program lacks focus, expertise and suffers from a great lack of exposure, hardly anyone knows it exists. (Coalition at 2.)
The Coalition asserts that while the TTY Placement Program is targeted to benefit a very specific population of Californians-those who are deaf or hard of hearing and who must rely on visually-oriented telecommunications-the other programs administered by the PSPC do not focus on any well-defined segment of the state's population so do not require the unique perspective and knowledge that would be useful in administering the TTY Placement Program. The Coalition states that moving the TTY Placement Program to the DDTP makes sense because it brings to bear the focus and knowledge to make the program effective.
We are disturbed that the TTY Placement Program has been so ineffective and see compelling reasons for placing the TTY Placement Program under the auspices of the TADDAC. We will explore the possibility of introducing legislation to change the Public Utilities Code. However, neither § 881.2 nor § 2881.4 gives the Commission authority to move the TPIC program from PSPC's advisory oversight. Until the Public Utilities Code is changed, we are constrained by the clear language of § 279(a), which places the TTY Placement Program under the auspices of the PSPC. The Legislature could have amended that section in AB 1734, but did not choose to do so. Without a change in the law,we do not have the authority to move that responsibility to the DDTP program.
C. Advisory Committee Responsibilities
The TADDAC's role is to advise the Commission on issues relating to the DDTP program. As various parties point out in their comments, TADDAC members, who represent a variety of groups that benefit from the program, are uniquely qualified to provide input on the program. We agree that the Commission will benefit from their involvement in the program.
According to the DDTPAC, in order to participate fully in the program, the TADDAC needs to be able to review budget documents and contractor reports. While Commission staff have the responsibility to approve invoices and oversee the work of contractors, members' knowledge of the program can provide information to assist Commission staff in their decision-making. Therefore, the Charter for the TADDAC has been amended to provide that the TADDAC will receive copies of invoices and contractor reports, at the same time as they are provided to the Telecommunications Division. If the TADDAC has concerns with the invoices, or other reports they review, TADDAC shall notify the TD liaison.
The DDTPAC, Coalition, and Ching all propose that the TADDAC have the authority to obtain outside legal counsel to file comments in Federal Communications Commission (FCC) proceedings, or in the event that the committee takes issue with any action proposed by the Commission regarding the program. According to the DDTPAC, access to outside legal counsel is critical to ensuring that consumers and consumer interests will be represented in the program, especially in situations where Commission staff may not agree with the consumers' recommendations. The DDTPAC makes the comment that the Commission's legal staff cannot be expected to represent the interests of the Commission and the interests of consumers advising the Commission, if those interests happen to differ. We disagree. Legal staff at the Commission represent both the Office of Ratepayer Advocates (ORA) and the Consumer Services Division in proceedings before the Commission, and can represent the DDTP program as well. There is no conflict because attorneys within the Legal Division have different assignments, so no attorney would be in the position of advising the Commission on a proceeding in which he or she had participated as an advocate. We encourage the TADDAC to make use of its Legal Division non-voting liaison to facilitate participation in Commission proceedings. There is no need for TADDAC to obtain outside counsel.
The Coalition and the DDTPAC urge that the DDTP committees have a role in the contracting process. In the past, the DDTPAC and its committees have been instrumental in assisting the Commission in several contract matters, particularly those related to the California Relay Service and the new DDTP services contract recently awarded to the California Communications Access Foundation. The Coalition asserts that the TADDAC and its advisory committees should continue to have involvement in most of the contract process-assisting in the development of Requests for Proposals (RFPs) or Invitation for Bids (IFBs), in evaluating bids and proposals and in negotiations. The Coalition asserts that there is no reason for the Commission to forego this invaluable assistance in the future. Section 278(a), as amended by AB 1734 states that the TADDAC's advisory role includes advice "regarding contracts and agreements relating to the [DDTP]." The Coalition urges that the new charters include this responsibility.
The DDTPAC states that the DDTP and its committees have been intimately involved in contracting processes, and has provided innovative and effective advice to the Commission in recent years. According to the DDTPAC, the TADDAC, along with its advisory committees, should be involved in the contracting process to assist the Commission in the development of RFPs, IFBs, in evaluating proposals, and in providing direction and support to ensure that the needs of the deaf and disabled communities are met.
We agree that members of the TADDAC can provide invaluable assistance to Commission staff in the crafting of recommendations and specifications for contracts relating to the program. TADDAC is authorized to send up to two members of each committee as delegates to work with Commission staff on development of RFPs/IFBs. We have added that provision to their charters. However, Commission staff shall be responsible for drafting the RFPs/IFBs and will have sole authority to evaluate responses and make recommendations to the Commission.
In its comments on the DD, the Coalition questions the two "delegate" limit the DD places on members permitted to work with Commission staff in development of RFPs/IFBs. The Coalition states that an arbitrary cap is unnecessary and overly restrictive and fails to allow for a variety of ways in which the committees may believe is the best way to develop bid specifications. For example, it may be that for a given RFP, the TADDAC and staff would prefer to set up a subcommittee of several committee members. We appreciate the Coalition's comments, but we are constrained by the provisions of the Bagley-Keene Open Meeting Act. If more than two members of a subcommittee meet, it would be considered a meeting of the committee itself, which then must be an open meeting subject to Bagley-Keene requirements. The way to avoid that is to limit participation to no more than two members of a particular committee.
Also, the Coalition states that the DD as written could be read to preclude the TADDAC from submitting comments on draft resolutions to approve RFPs/IFBs. That is certainly not our intention. Once a draft resolution to approve an RFP or IFB has been released for comment, TADDAC and other parties have an opportunity to file comments on the draft. We have added clarifying language to the charters.
The DDTPAC and Ching express concern about the role of the advisory committees with respect to the CPUC. The DDTPAC recommends that there be no restrictions on communications with contract and vendor liaisons, including the PSP. According to the DDTPAC, the committees and their individual members should be free to ask any questions or discuss any issues of mutual concern with any and all liaisons. The DDTPAC stresses that the committees' advisory role to the Commission is premised on obtaining information about the progress of the program and using their unique understanding of the communities impacted by the program. We want the committee members to get the information they need to provide their advisory role, but at the same time, unrestricted access to DDTP vendors could be time-consuming for the vendors, and could result in additional program costs. We urge members to use the monthly committee meetings as an opportunity to ask their questions of vendors, and establish a dialogue with them, rather than to make individual contacts with the vendors. This does not preclude contacts outside of the committee meetings, but those contacts should be minimized, and if a particular vendor finds individual contacts to be unduly burdensome and time-consuming, the vendor should discuss that issue with the committee chair. Also, we remind Committee members that they may not obligate the DDTP program to pay for special studies, etc., that go beyond the requirements in a particular vendor's contract.
Ching also expressed concerns about the relationship of the advisory committees to the CPUC. He is concerned that the CPUC is treating the advisory committees as external to the CPUC, which leaves the committees in the position of responding to completed drafts of CPUC plans for the DDTP and does not take into account the legislative directive to advise the Commission on the DDTP, which should include the formation of those plans. We agree, and have
made a provision in each charter for the TD non-voting liaison to report on future plans for the DDTP program at each committee meeting and to solicit input from committee members. This should ensure that committee members are included in the planning process for the DDTP program.
In his comments, Ching also raises the issue of creating a formal recommendation review process that requires response from CPUC staff within a specified period of time and involves public comment in case of initial rejection. We do not want to establish a formalized process for providing feedback. In many cases, the Commission's deliberative process precludes staff from giving feedback on specific recommendations. However, to the extent that the deliberative process is not involved, we encourage TD to provide feedback to the committees to explain why particular recommendations are not implemented.
D. Advisory Board Membership
In D.01-07-023 and D.02-01-018, we began the implementation of SB 669 by revising the voting membership of the three advisory committees for the DDTP. However, upon further review, in D.02-04-059, the Commission saw that affording non-voting status to any board member creates potential problems under Pub. Util. Code §§ 271(c), (d), and (e) which govern voting requirements, including establishment of quorum. The DDTP committees have already experienced these quorum and voting problems. We believe that the most effective way to deal with this issue is to eliminate the use of the term "non-voting members." Instead these committee positions will be referred to as "non-voting liaisons." The non-voting liaisons are discussed in the following section.
TD has recommended that all existing members of the committees continue their current appointments. Given the scope of changes involving the DDTP in the coming months, this will provide an important element of continuity for the program. To provide for this continuity, current members of the DDTPAC will be "grandfathered" in as members of the TADDAC on July 1, 2003 and current members of the CRSAC and EPAC will continue their current appointments past the July 1, 2003 transition date, except as noted below.
There are currently six members on CRSAC, so we asked for comments on whether the number of members to CRSAC should be changed to an odd number. Parties did not express concerns with the number of members so we will retain six members on CRSAC.
The DDTPAC and Ching assert that there is no reason why the Executive Director should have to approve members to the three committees. According to Ching, the committees are in the best position to judge who they want to work with and the appropriateness of an appointment to the committee. However, Ching notes that the Executive Director's office holds a key responsibility in insuring that appointees have no Conflict of Interest in serving on the Committee.
The DDTPAC recommends a process to be followed for any recommendations submitted by the committees to Commission staff to ensure that its recommendations are given serious consideration by Commission staff and to ensure that complete and justifiable reasons are provided when Commission staff determines that a recommendation is not accepted. This process would include policy recommendations, as well as recommendations regarding new committee members. The process the DDTPAC proposes involves a step involving soliciting public input, which it indicates will bring broader consumer perspectives and insight.
With regard to selection of members, we prefer the simpler process proposed by Ching. The committees themselves are in the best position to evaluate and approve potential members. The Executive Director does not need to be involved in the approval process, other than insuring that appointees have no Conflict of Interest in serving on the committee. The TADDAC shall notify the Executive Director of proposed new members to each of the committees, along with a Conflict of Interest statement so the Executive Director can determine whether a conflict exists. The new member may not be seated on the committee until the Executive Director determines that no conflict exists.
The DDTPAC recommends that flexibility be built into the charters for all three committees to add new members to represent deserving communities or constituencies, if such needs are identified in the future. The DDTPAC requests that authority be granted to each committee to add up to two new members in the future to represent communities not currently effectively represented on the committees, such as deaf-blind consumers, low vision consumers, or cognitively impaired consumers. According to the DDTPAC, the committees have received input from various constituents in the past indicating that the needs of their particular group are not effectively represented in the program. Permitting this flexibility in the charters will allow the committees to be more responsive to these requests in the future and will help ensure that the DDTP is serving the needs of all consumers who can benefit from the program.
We agree that the committees should have the flexibility to add members to represent communities not currently represented on the committees, and have added that provision to each of the charters. If the committees vote to add an additional member, the TADDAC shall send written notification to the Executive Director. Also, the TADDAC must ask the Executive Director to determine if there is adequate program funding to support per diem and expenses for additional members. If the Executive Director determines that current funding is not adequate, the expansion of the committee membership will be deferred to the next budget cycle.
The Office of Ratepayer Advocates (ORA) proposes that ORA have a voting member on TADDAC. ORA states that it seeks voting membership in order to continue to represent the interests of all consumers, and of deaf and disabled customers in the program. ORA indicates that it has been a non-voting member of the CRSAC, which will contribute to the continuity the Commission provided on the TADDAC by grandfathering current members.
The DDTPAC opposes ORA's request, stating that ORA can better serve the committee by providing the TADDAC with advice and ratepayer perspectives as a non-voting liaison of the committee. The DDTPAC believes that the committee's voting members should consist solely of the members of the communities which the program was established to serve. ORA does not represent a community which the program serves. Rather it represents California ratepayers as a whole. As such, the only legitimate role it can play with respect to TADDAC is that of a fiscal watchdog working to ensure that ratepayer funds are not squandered. The DDTPAC believes that ORA can serve this role adequately in a liaison capacity for TADDAC.
In its comments on the DD, ORA asserts that the DD should be modified to allow ORA to serve as a voting member on the TADDAC. ORA points out that AB 1734 requires the Commission "to establish qualifications for persons to serve as members of the Telecommunications Access for Deaf and Disabled Administrative Committee so that consumers of telecommunications services for the deaf and disabled comprise not less than two-thirds of the membership of the committee." According to ORA, the Legislature recognized that it could be appropriate to have some TADDAC members who were not consumers of telecommunications services for the deaf and disabled. ORA points out that ORA is a voting member on the California High-Cost Fund-A Administrative Committee, the California High-Cost Fund-B Administrative Committee, the California Teleconnect Fund Administrative Committee, the Payphone Service Providers Committee, and the Universal Lifeline Telephone Service Trust Administrative Committee, and ORA's role on these committees would include assuring that ratepayer funds are appropriately spent. We concur with ORA's request to be made a voting member of the TADDAC, and have made changes to TADDAC's charter to reflect the addition of ORA. This is consistent with the makeup of the administrative committees for other public service telecommunications programs.
E. Advisory Board Non-voting Liaisons
Existing charters for the DDTP committees state that the Commission Executive Director appoints a representative to each committee. Currently the three Commission representative positions are filled by three different individuals from three different divisions of the Commission. TD has asserted that having the same Commission staff liaison on all three committees should facilitate communication between the committees and Commission staff. In order to provide improved and consistent communications between the committees and the Commission, we feel that the Commission Executive Director-appointed representative on all three committees should be the same person - the lead TD staff liaison. This person will be responsible for maintaining communications between the three committees by reporting to each committee on the activities of the other two committees.
The final implementation of SB 669 and AB 1734 requires additional responsibilities of Commission staff. The revised fiduciary responsibilities of the Commission will include not only the participation of TD, but also the Information and Management Services Division (IMSD) and Legal Division (LD) so the IMSD and LD liaisons should attend and participate in TADDAC meetings. Additionally, the Public Advisor, at its option or on the Commission's direction, may designate a liaison to the TADDAC.
We are simplifying the process for selection of the non-voting liaisons, as well as committee members. The non-voting liaisons will be appointed by the organization they represent, and only those liaisons who are employees of the Commission will be appointed by the Commission's Executive Director, or the appropriate division director.
The DDTPAC, Coalition and Ching all commented on the number and composition of non-voting liaisons for the various committees. We agree with the DDTPAC and the Coalition that the Primary Service Provider4 should serve on all three committees. Ching makes the comment that the utility and vendor liaison seats have evolved from a time when the utilities had active functions in the program. Ching asserts that the suggested utility and vendor liaisons would be representative of those companies that currently perform active functions for the program.
The Coalition proposes fewer liaisons to the committees than the DDTPAC and Ching. For example, the Coalition proposes that the number should be reduced because, to some extent, the DDTP service contractor will provide the committees with vendor input. On the other hand, Ching proposes that each CRS provider serve as a non-voting liaison to the TADDAC, and the DDTPAC proposes the same for the CRSAC.
In order to ensure that those who attend as liaisons meet the needs of the various committees, we will adopt the DDTPAC's proposal for the widest possible base of non-voting liaisons. The committees themselves may determine that specific organizations do not need to attend meetings. For example, TADDAC may determine that since the CRS Network Management Services contractor is at their meetings, there is no need for individual CRS contractors to attend, CRSAC may determine that only particular CRS providers should serve as liaisons, and EPAC may determine which telecommunications carriers or equipment vendors should serve as liaisons. In this way, each committee will determine the non-voting liaisons that best meet its needs. We note that, in order to require attendance at meetings, the contract with the particular entity must include the requirement to attend meetings. TD shall ensure that all future contracts will include that provision.
Each organization selected to serve as non-voting liaison on one of the committees will name its own representative, and the Executive Director shall be notified in writing as to the name of the liaison representing the organization.
The non-voting liaisons are required to attend and participate in the regularly scheduled committee meetings, as long as their contracts require attendance. We have eliminated terms for the non-voting liaisons, who will serve at the pleasure of the organization they represent.
F. Term of Appointments
In Resolution T-16703 we determined that we should maintain the current appointment limitation of two consecutive appointments for each voting member but increased the length of those appointments from three to four years, beginning with new appointments made after July 1, 2003.
In our Rulemaking, we asked for comments on how terms should be staggered given the change in appointment from three to four years. The Coalition noted in its comments that for TADDAC and CRSAC, the terms for current members are not sufficiently staggered. For the TADDAC, four members have terms expiring in July or August 2004, two of whom represent the disabled community. The Coalition proposes that the term of one of those be extended for a year. We agree. The term of one of the Disabled Community Representatives shall be extended to August 2005. In its comments on the DD, the DDTPAC points out that the staggering of terms given the change to four-year terms, needs to be corrected so that the impact on any one community represented on a committee at any one time is minimized. For example, the terms of both Deaf representatives on TADDAC should not expire at the same time, so that in the event of turnover, at least one Deaf representative will always be seated. The DDTPAC proposes that consideration be given to the cumulative length of service of the respective members impacted by the new staggering rules. The member who has served the shortest cumulative time should be awarded the longer term of four years. We concur with the DDTPAC's recommendation.
For the CRSAC, the terms of three of the six members expire in October 2003. Two of those represent the deaf community. The Coalition recommends that the terms of one of those be extended one or two years, and if it is extended only one year, then one of the two terms of members expiring in October 2004 should be extended a year as well. We concur with the Coalition's recommendation. The term for the hard-of-hearing representative will be extended to 2005, and one of the members representing the deaf community will be extended to 2004. This will ensure that the terms of the various members of both committees are sufficiently staggered.
G. Meeting Expenses
The charters of the three DDTP committees include the following provision:
The Committee shall hold such meetings as it shall decide are necessary or appropriate in order to carry out its functions, but in no event less frequently than once per month.
A notification from the Department of Finance (DOF) requires all State advisory bodies to limit their meetings to no more than one meeting for Fiscal Year 2003-04. The Commission has not determined the extent to which the DOF will apply this policy to the committees of the DDTP. The draft budget for the DDTP program assumes that DOF will approve the continuance of DDTP committee members meeting on a monthly basis in order to provide operational and policy-based advice to the Commission. However, we put the committees on notice that if they choose to exercise the provision cited above and meet more often than once a month, they may run into problems with DOF dictates and their adopted budget for meeting expenses.
In its comments on the DD, the DDTPAC recommends that all expenses incurred by committee members to participate in conferences and discussions with the TD, the Commission, and DDTP contractors should also be reimbursable. According to the DDTPAC, applicable meetings should include any officially scheduled meetings of two or more committee members with any of the parties mentioned above. This participation is essential to keeping the committees fully informed so that they may effectively carry out their advisory functions, and therefore, expenses incurred in such participation should be reimbursable. And Ching urges that members be reimbursed for subcommittee meetings.
We find those proposals to be too open-ended and we need to keep better fiscal control over reimbursement for meetings. Therefore, in addition to reimbursement for the regular monthly meetings, we will authorize reimbursement for meetings that committee members attend at the request of the TD Director. We anticipate that there will be many instances when TD wants input from committee members on various issues, and this process will allow those committee members to be reimbursed for attending those meetings. The charters currently provide reimbursement for expenses associated with "subcommittees of the Committee authorized by the Commission." In other words, we will not compensate for ad hoc subcommittees created by one of the committees, without Commission authorization.
In his comments on the DD, Ching urges that the Commission clarify that the program will compensate committee members for items which have been eligible for reimbursement, namely internet access and office supplies. We recognize that the consumer members of the various committees have unique communication challenges because of their disabilities. The internet provides a way for those consumer members to communicate with each other on a regular basis regarding issues vital to the program. We will authorize reimbursement for basic internet access for committee members who do not have access through the organizations they represent or other means.
