Discussion

A. Introduction

The complainants' arguments center around the assertions that several Commission decisions and related tariffs are invalid because the decisions and tariffs adopt a definition of small commercial customer that is at odds with the statutory definition of "small commercial customer" contained in § 331(h). The decisions which the complainants assert are void are the cost recovery plan decision (D.96-12-077), the financing order decision (D.97-09-056), and the direct access implementation plan decision (D.97-10-087). In addition, the complainants assert that the approval of SCE's Rule 1 and Schedule RRB are invalid and violate § 331(h) and the cost recovery plan decision. (See October 29, 2002 Complainants' Opening Brief, pp. 18-19.)

Before we decide whether the complainants' allegations should be addressed, there is the procedural issue of whether the complaint should be allowed to proceed. As recognized in the ALJ's September 10, 2002 ruling and the May 8, 2003 scoping memo and ruling, we must first address whether the complainants' allegations regarding the conflict between § 331(h) and the decisions and tariffs implementing the 10% rate reduction were timely or not.

The complaint and the answer, and the briefs that the parties were allowed to file, suggest three theories for resolving this procedural issue. The first theory is whether the relief sought by the complaint was timely filed with the Commission. That is, should the complainants have raised their issues in timely applications for rehearing of the decisions or in petitions for modification of the decisions. The second theory is whether the decisions should be revisited due to possible misrepresentations made by SCE to the Commission. The third theory is whether sufficient grounds exist to allow the Commission to reexamine decisions after the time for rehearing has passed.

We address the three theories below.

B. Application for Rehearing and Petition for Modification

The complainants' challenge to the decisions and tariffs regarding the 10% rate reduction raises the legal issue of whether the complainants exercised a timely legal challenge to these decisions and tariff provisions. This timeliness issue is apparent from a review of the allegations in the complaint.

The complaint states:

"COMPLAINANTS contend that DEFENDANT's failure to provide the 10% Rate Reduction to them is in violation of Public Utilities Code §§ 330(w), 331(h) and 368(a), the Commission's Orders and approved tariffs, as well as the Legislative intent of the Electric Restructuring Act (Public Utilities Code §330 et seq.)." (Complaint, p. 4.)

The complaint at page 6 referenced the cost recovery plan decision, D.96-12-077, wherein the Commission stated that its approval of the cost recovery plan was subject to the principle that:

"To the extent that any element of the plans or of this decision is inconsistent with § 368 or any other provision of AB 1890, the language of the statute prevails." (See 70 CPUC2d at 218, 232.)

The complaint at page 7 also mentions in footnote 2 of D.96-12-077 (70 CPUC2d at 234) that the term "small commercial" was defined a follows:

" `Small commercial customer' is defined as a customer with a maximum peak demand of less than 20 kilowatts. (§ 331(h))"

In addition, the complainants contend that the statements in D.97-08-056 support their contention that the statutory definition of a small commercial customer is paramount.

The complaint also alleges that SCE's Rule 1 definition of a "small commercial customer" is in conflict with § 331(h), and that SCE had a lawful duty to alert the Commission that the Rule 1 definition was not in compliance with the statute. The complaint states:

"The SCE Rule 1 definition ... ignores the customer's actual kilowatt demand usage, and instead uses a customer's rate schedule as the criterion. This criterion has no basis in the Electric Deregulation Act or Commission decisions. Public Utilities Code §331(h) is clear that demand is the exclusive factor for `small commercial customer' status. To find DEFENDANT's position persuasive, the Commission would have to accept that it knowingly (1) approved an inconsistent definition from the statute; (2) set up a direct conflict with its earlier decisions and orders; (3) violated its own principal that the statute would prevail where there were inconsistencies; (4) created arbitrary separate treatment for a class of utility consumers; (5) discriminated against other public utilities; and (6) ran counter to its expressed directives to conform its decisions to the statute." (Complaint, pp. 7-8.)

Thus, the complainants argue that the financing order decision can only be consistent with the cost recovery plan decision if the statutory provisions of AB 1890, including the definition of small commercial customer in § 331(h) prevails over any contrary definition approved in the financing order decision.

The complaint further states that SCE was informed about the rate reduction issue for GS-2 customers when it received a letter dated April 20, 2000 from one of its GS-2 customers asking why the customer was not receiving the rate reduction, even though AB 1890 requires that all small commercial customers be given the reduction. The complaint states that SCE "did nothing then and has done nothing since to correct it...," nor has SCE "brought the question or matter to the attention of the Commission. (Complaint, p. 14.)

Since the allegations listed above assert that SCE's Rule 1 and various decisions violate § 331(h) or prior Commission decisions, we address the issue of whether the complaint was timely filed.

We first note that the complaint refers to SCE's Rule 1 as being in violation of § 331(h), but does not specifically refer to Schedule RRB. One of the complainants' arguments is that SCE did not include the GS-2 rate schedules as part of the list of schedules eligible for the 10% rate reduction. The list of schedules that designated which group of customers were eligible for the 10% rate reduction, and which the complainants take issue with, is Schedule RRB. Proposed Schedule RRB was approved in D.97-05-056, and Schedule RRB was subsequently approved by the Energy Division as in compliance with that decision. (75 CPUC at pp. 570, 578, 580.) Rule 1 was approved by the Commission in D.97-10-087, and not in D.96-12-077 as stated by the complainants at page 7 of their complaint. Thus, our decision addresses the timeliness of challenges to both Rule 1 and Schedule RRB.

Section 1731(b) provides that an application for rehearing of a Commission decision must usually be filed within 30 days of the date of issuance of the decision.¹⁵ That subdivision also provides that "No cause of action arising out of any order or decision of the commission shall accrue in any court to any corporation or person unless the corporation or person has filed an application to the commission for a rehearing...."

Section 1732 provides that:

"The application for a rehearing shall set forth specifically the ground or grounds on which the applicant considers the decision or order to be unlawful. No corporation or person shall in any court urge or rely on any ground not so set forth in the application."

The complainants' contention that the 10% rate reduction should apply to anyone who has demand of less than 20 kW is a challenge to the Commission's interpretation of § 331(h) as developed in the cost recovery plan decision, the financing order decision, and the direct access implementation plan decision. It is undisputed, however, that the complainants did not file any applications for rehearing of these three decisions, or any other decision that addressed the "small commercial customer" definition in § 331(h).¹⁶ Although applications for rehearing of those decisions were filed by other parties, no one raised the issue of whether the Commission's adoption of SCE's Rule 1 and Schedule RRB violated § 331(h) or other Commission decisions, nor did the Commission address that issue in its decisions regarding the applications for rehearing. Since no one raised in their applications for rehearing the issue about the conflict with § 331(h), or that the decisions were internally inconsistent, inconsistent with each other, or ambiguous, the decisions regarding SCE's Rule 1 and Schedule RRB are final and conclusive. (See Sale v. Railroad Commission of California (1940) 15 Cal.2d 612, 616.)

Section 1709 provides that: "In all collateral actions or proceedings, the orders and decisions of the commission which have become final shall be conclusive." This code section is designed to prevent a party from making a collateral attack on a Commission decision. (D.92-12-023 [47 CPUC2d 51, 55].) A collateral attack is an attempt to impeach the judgment or order in a proceeding other than that in which the judgment was rendered. (Harley v. Superior Court (1964) 226 Cal.App.2d 432, 435; Clark v. Deschamps (1952) 109 Cal.App.2d 765, 769; Rico v. Nasser Brothers Realty Company (1943) 58 Cal.App.2d 878, 882.)

Based on the allegations in the complaint and the position of the complainants, as stated earlier in this decision, the complaint at issue in this proceeding amounts to a collateral attack on the underlying Commission decisions. The complainants' allegations that SCE's Rule 1 and Schedule RRB violate § 331(h) and certain Commission decisions is an untimely attempt to revisit the determinations that were made in the cost recovery plan decision, the financing order decision, and the direct access implementation plan decision.¹⁷ (See Northern California Assn. To Preserve Bodega Head and Harbor, Inc. v. Public Utilities Commission (1964) 61 Cal.2d 126, 133-135.) The complainants seek to change those decisions by having the Commission alter SCE's Rule 1 and Schedule RRB to extend the 10% rate reduction to GS-2 rate group customers with usage of less than 20 kW. Such collateral attacks on final Commission decisions are specifically precluded by § 1709. (See People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 630; D.97-08-072 [74 CPUC2d 613, 616]; D.92-12-023 [47 CPUC2d 51, 55]; D.90-08-031 [37 CPUC2d 130].) As noted in D.97-08-072, the failure to file a timely application for rehearing of a decision cannot be cured by a collateral complaint filing. (74 CPUC2d at 616.) Thus, the complaint should be dismissed with prejudice because the complainants failed to challenge the disputed decisions in a timely manner.

The next issue is whether the complaint should be viewed as a petition to modify the direct access implementation plan decision, in which we approved SCE's Rule 1, and a petition to modify the financing order decision, in which we approved Schedule RRB. We address this issue because the complainants' request for relief is essentially seeking to modify both of those decisions so that GS-2 customers who use less than 20 kW are included within the group of customers eligible for the rate reduction.

Rule 47 of the Commission's Rules of Practice and Procedure addresses the petition for modification of a Commission decision. Subdivision (a) of Rule 47 states in part that "A petition for modification asks the Commission to make changes to the text of an issued decision." Subdivision (b) of Rule 47 provides in part that "A petition for modification must concisely state the justification for the requested relief and must propose specific wording to carry out all requested modifications to the decision."

The relief that the complainants are seeking is based on the alleged conflict of SCE's Rule 1 and Schedule RRB with § 331(h). The complainants request for relief would involve modifying the text of SCE's Rule 1 and Schedule RRB, as well as the text of the direct access implementation plan decision and the financing order decision. However, since the complainants allege that SCE's Rule 1 and Schedule RRB, as adopted in the direct access implementation plan decision and the financing order decision, are in conflict with § 331(h), a petition to modify those two decisions cannot be addressed unless the issue regarding the lawfulness of those two decisions has been litigated. As noted above, the complainants failed to challenge the legality of both of those decisions through the application for rehearing process. Since those decisions are final and conclusive, § 1709 prevents us from modifying the decisions in this complaint proceeding in the manner suggested by the complainants, and bars us from further considering the complaint. The complaint should therefore be dismissed with prejudice.

Normally, our analysis of the relief sought by the complainants would end here because the complainants failed to timely apply for rehearing of the decisions and to timely protest the relevant advice letter filings. However, the complainants have made several other arguments which, due to the allegations, should be addressed. These arguments include alleged misrepresentations by SCE to the Commission, and that SCE failed to comply with Commission decisions and with the Public Utilities Code. These issues are discussed in the succeeding sections.

C. Alleged Misrepresentation

The complaint alleges that the Commission was misled into approving SCE's Rule 1 because SCE failed to list all of the rate schedules that fit within the definition of § 331(h). (Complaint, pp. 8-9, 11.)¹⁸ The complaint states that SCE "presented false, incomplete and misleading written testimony to the Commission in order to get their Rule 1 definition approved." (Complaint, p. 10.) SCE's Rule 1 did not include any rate schedules in the GS-2 rate group, even though SCE admits that 27,877 GS-2 customers have never exceeded the 20 kW threshold. By omitting the GS-2 rate group from Rule 1, the complainants contend that SCE misled the Commission into believing that SCE's Rule 1 comports with the § 331(h) definition of a small commercial customer, and the 10% rate reduction was denied to the otherwise eligible GS-2 customers.¹⁹

One example of the alleged misrepresentation, which is cited in the complaint, is the following passage from SCE's testimony in support of its financing order application:

"PU Code Chapter [sic] 331(h) defines `small commercial customer' as a customer that has a maximum peak demand of less than 20 kW. This definition corresponds to all customers served on rate schedules in Edison's GS-1 rate group." (Complaint, p. 11, emphasis in complaint; See "Proposed Ratemaking and Tariff Changes," supra, p. II-2.)

The complainants' quote of the passage from SCE's financing order application suggests that only the GS-1 rate group qualifies under the § 331(h) definition.

The complaint also alleges that the commercial customers of PG&E and SDG&E, who use less than 20 kW, receive the 10% rate reduction. The complainants contend that unlike SCE, which made misrepresentations to the Commission, the other two utilities "plainly understood the governing law, the Commission's decisions and orders, and that they did not misrepresent their rate schedules to the Commission when applying for their Financing and Cost Recovery Orders." (Complaint, p. 12.)

The complainants' argument that the financing order decision should be revisited because of SCE's fraud on the Commission and the public relies on the language in Wise v. Pacific Gas and Electric Company (1999) 77 Cal.App.4th 287, 300 where the court stated: "It is inconceivable that the Legislature intended the PUC would be powerless to award reparations where a public utility obtained a tariff rate by fraudulent means."²⁰

However, it is clear from a review of the record in the various proceedings that we were aware of the differences between the GS-1 and GS-2 rate groups, and the relationship of these rate groups to § 331(h). A brief recital of some of the materials that were presented to us, and the statements that we made in various decisions, support the inescapable conclusion that we were not misled by SCE into believing that only GS-1 customers had usage of less than 20 kW.

In D.96-04-050, which addressed SCE's general rate case for test year 1995, we described SCE's GS-1 and GS-2 rate groups as follows:

"GS-1, general service lighting and power customers with less than 20 kW demand

"GS-2, general service lighting and power customers with demand between 20 kW and 500 kW. (65 CPUC2d 362, 388.)

We also described the differences in charges for the GS-1 and GS-2 rate schedules in that decision, stating as follows:

"GS-1 general service, non-demand metered rate intended for smaller sized customers whose demand does not exceed 20 kW.

...

"GS-2 is a general service demand-metered rate schedule intended for medium-size customers where the customer's demand is generally 500 kW or less." (65 CPUC2d at 442.)

Then in SCE's cost recovery plan, filed on October 15, 1996 or about six months after D.96-04-050 was issued, SCE described the proposed rate reduction as follows:

"1.2. For Edison's residential and small commercial (Rate Schedule GS-1) bundled service customers, the rate levels as shown on Edison's electric rate schedules as of June 10, 1996, will be reduced by at least 10 percent and frozen during the period January 1, 1998 through the earlier of March 31, 2002 or the date on which the transition costs are fully recovered. [Footnote 8.]²¹ This rate reduction is expressly contingent upon issuance of Financing Orders and Rate Reduction Bonds." (SCE Cost Recovery Plan, October 15, 1996, pp. 6-7, R.94-04-031 and I.94-04-032.)

Public Utilities Code § 368 provides that the Commission shall authorize the utility to recover its uneconomic costs if the cost recovery plan meets certain criteria. In discussing the mandatory language of meeting "certain criteria," we stated in the cost recovery plan decision that:

"This mandatory language, however, does not entirely remove the Commission's discretion with regard to these plans. Our function in relation to these plans is not a merely ministerial one of checking the plans against the listed criteria and stamping our approval if all elements are in place. The criteria specified in § 368, with some exceptions, provide only the broad framework for cost recovery. The utilities' plans provide more detail, filling in some of the gaps in the statutory framework and adding desired elements. Our role includes, among other functions, coordinating the legislative requirements with our existing proceedings that are considering the issues implicated by § 368, and critically reviewing the utilities' additional proposals for consistency with the goals expressed in AB 1890 and in our Policy Decision. Our general role is to approve the overall framework for recovery of transition costs and to provide necessary guidance on some of the details of this cost recovery." (70 CPUC2d 207, 218.)

One of the criteria listed in § 368 is "that rates for residential and small commercial customers shall be reduced so that these customers shall receive rate reductions of no less than 10 percent for 1998 continuing through 2002." (Pub. Util. Code § 368(a).) SCE's cost recovery plan was approved in D.96-12-077, "subject to the limitations discussed in this opinion." (70 CPUC2d at p. 232.)²² Two of these limitations are described as follows:

"To the extent that any element of the plans or of this decision is inconsistent with § 368 or any other provision of AB 1890, the language of the statute prevails.

...

"The plans vary considerably in their level of detail. Our approval today covers only the general framework for cost recovery outlined in AB 1890 and the details necessary to launch the program for cost recovery. We will continue to address many of the implementation details for the plans in Rulemaking (R.) 94-04-031/Investigation (I.) 94-04-032, our primary restructuring docket, and related ongoing proceedings. In our discussion of the plans, we will refer to specific proceedings where these implementation details are being addressed. Our approval of the cost recovery plans does not dispose of or prejudge our resolution of issues still under consideration in those proceedings; our decision on those issues will, of course, conform to the statute." (70 CPUC2d at 218-219.)

We also described the 10% rate reduction in the cost recovery plan decision as follows:

"Section 368(a) requires the utilities' plans to include a rate reduction of at least 10% for small commercial [Footnote 2]²³ and residential customers. [Footnote 3 omitted]...

"AB 1890 allows the utilities the option of accomplishing the required rate reduction by issuing rate reduction bonds, as described in §§ 840-847. The proceeds from the bonds will be used to `provide, recover, finance, or refinance' transition costs (§ 840(e)) in order to lower rates for residential and small commercial customers (§ 841(a)). Revenues from these customers will then be used to pay off the bonds (§ 841(a)). The net effect is to defer collection of some of the transition costs allocated to residential and small commercial customers from the recovery period ending no later than March 31, 2002, to a period ending when the bonds are paid off. Issues concerning the relation between bond proceeds and transition cost recovery will be considered in our transition cost proceeding, A.96-08-001 et al." (70 CPUC2d at 220-221.)

From the citations above, it is evident in the cost recovery plan decision that we knew that the utilities' plans contained more details, that SCE was planning to give the small commercial customers on the GS-1 rate schedules the 10% rate reduction, and that we were exercising some discretion with respect to the approval of the cost recovery plans because of gaps in the statutory framework. Although we stated that the language of the statute would prevail if any element of the plan or the cost recovery plan decision was inconsistent with § 368, we approved SCE's plan as meeting the criteria set forth in § 368 and left the implementation details of the 10% rate reduction to another proceeding. We also stated that the resolution of these other issues would conform to the statute. We also recognized in the cost recovery plan decision the interrelationship between those customers who receive the rate reduction and their obligation to pay the associated rate reduction bonds.

There is nothing in SCE's cost recovery plan filing which would lead us to conclude that SCE's description of the proposed rate reduction as applying to small commercial customers on Schedule GS-1 was misleading.

SCE's cost recovery plan was followed by SCE's application for a financing order filed on May 6, 1997 in A.97-05-018. In SCE's "Proposed Ratemaking and Tariff Changes," which was submitted as part of SCE's testimony in support of its financing order application, SCE described which rate schedules would be eligible for the 10% rate reduction:

"For purposes of the rate reduction as well as the fire wall provisions of AB 1890, Edison's residential and small commercial customers are those served on rate schedules in the Domestic and General Service (`GS-1') rate groups. [Footnote 2.]<sup>24</sup> PU Code Chapter [sic] 331(h) defines `small commercial customer' as a customer that has a maximum peak demand of less than 20 kW. This definition corresponds to all customers served on rate schedules in Edison's GS-1 rate group. As defined in Edison's tariffs, these rate schedules are open to general service customers with maximum demands less than or equal to 20 kW. [Footnote 3.]²⁵ While some customers with peak demands of less than 20 kW are served on agricultural and pumping, street lighting, and traffic control rate schedules, these customers are not considered to be part of the small commercial customer class." ("Proposed Ratemaking and Tariff Changes," supra, p. II-2.)

SCE also proposed that instead of a 10% rate reduction, that eligible customers be given a 10% bill credit. SCE's testimony described the bill credit proposal as "simple to administer because it does not require redesigning residential and small commercial rates...." ("Proposed Ratemaking and Tariff Changes," supra, p. II-3.)

SCE's testimony described the relationship between the customers eligible for the rate reduction and their obligation to repay the RRBs through the FTA charge. SCE proposed the establishment of "nonbypassable FTA charges for residential and small commercial customers to recover the Fixed Transition Amounts associated with the issuance of Rate Reduction Bonds." ("Proposed Ratemaking and Tariff Changes," supra, p. II-1.) SCE's testimony described how the FTA charges would be collected from customers who receive the benefit of the 10% rate reduction, but who might change rate schedules to avoid the FTA charges:

"During the term of the Rate Reduction Bonds, customers may switch to and from any applicable rate schedule within the Domestic and GS-1 rate groups in accordance with existing tariff provisions. However, to ensure credit risks are minimized, it is necessary to take measures to prevent customers from taking advantage of the 10 percent rate reduction but avoiding the repayment period for the bonds by switching to a schedule outside the Domestic or GS-1 rate groups. For example, a customer might take service on a GS-1 rate schedule during the rate freeze period and then switch to an agricultural and pumping rate schedule (not eligible for the rate reduction) to avoid the FTA charge once the rate freeze period has ended. To address this concern, Edison proposes to not allow customers who were served on a rate schedule subject to the rate reduction to voluntarily switch to service on any rate schedule not subject to the FTA charge until the repayment obligations for the Rate Reduction Bonds have been discharged.

"Customers who no longer meet the applicability for service criteria on a rate schedule that qualifies for the 10 percent discount will no longer receive the 10 percent bill credit nor will they be required to pay the FTA charge. [Footnote omitted] This provision would apply, for example, when a GS-1 customer grows beyond 20 kW and migrates to a rate schedule with a higher demand eligibility criterion such as Schedule GS-2. Edison does not expect this provision to encourage such migration because it is unlikely that customers would add load to grow beyond 20 kW solely for the purpose of avoiding the FTA charges. This provision is consistent with the treatment of the nonbypassable CTC for customers who change rate schedules. Residential customers cannot migrate to a schedule that will not require a FTA charge." ("Proposed Ratemaking and Tariff Changes," supra, pp. III-6 to III-7.)

Proposed Schedule RRB was also attached to SCE's testimony. Schedule RRB addressed the applicability of the RRBs bill credit of 10% and the FTA charge as follows:

"Applicable to Domestic service customers served under Schedules D, D-APS, D-CARE, DE, DM, DMS-1, DMS-2, DMS-3, DS, TOU-D-1, TOU-D-2, TOU-EV-1, and TOU-EV-2; to General Service customers with demands of 20 kW or less served under Schedules GS-1 and TOU-GS-1 (including such customers additionally served under Schedule GS-APS) and TOU-EV-3." ("Proposed Ratemaking and Tariff Changes," supra, p. IV-5.)

In the "Special Conditions" portion of proposed Schedule RRB, the obligation to pay for the FTA charge was described as follows:

"1. Removal From Schedule: Once service is provided under this schedule, customers cannot elect to change to a rate schedule for which Schedule RRB is not applicable until the Rate Reduction Bond obligations are discharged. However, customers served under this schedule who subsequently no longer meet the eligibility criteria of their regular rate schedule shall be transferred to another rate schedule in accordance with such eligibility criteria and may not continue to be served under Schedule RRB. Such customers will no longer be responsible for paying the FTA charge (e.g., a Schedule GS-1 customer whose monthly maximum demand consistently exceeds 20 kW is required to transfer to Schedule GS-2). ("Proposed Ratemaking and Tariff Changes," supra, p. IV-6.)

In the financing order decision, we recognized that "Edison has provided a general description of the [rate reduction bond] transaction structure in its application and prepared testimony." (75 CPUC2d at 564.)

In the "Eligibility" section of D.97-09-056, we stated the following:

"The rate reduction applies to residential and small commercial customers as defined by AB 1890. For this purpose, Edison's eligible customers are those served on rate schedules in Edison's Domestic and General Service (GS-1) rate group. [Footnote 5]²⁶ Edison's proposal to address this issue, reflected in its proposed Schedule RRB, and as modified below, is adopted. All other customers will neither receive the rate reduction nor be responsible for FTA charges.²⁷

"Subject to the bypass provisions discussed below, customers who no longer meet the applicability for service criteria on a rate schedule that qualifies for the 10% reduction will no longer receive the 10% bill credit, nor will they be required to continue to pay the FTA charge. [Footnote 6 omitted] This provision will apply, for example, when a GS-1 customer's load grows beyond 20 kilowatts and the customer migrates to a rate schedule with a higher demand eligibility criterion, such as schedule GS-2. Edison does not expect that this provision will encourage such migration, because it is unlikely that customers will add load to increase beyond 20 kilowatts, solely for the purpose of avoiding the FTA charges. [Footnote 7 omitted] This provision is consistent with the treatment of nonbypassable competition transition charges in other proceedings for customers who change rate schedules. Residential customers cannot migrate to a schedule which does not require an FTA charge." (75 CPUC2d at 570.)

We also stated the following in the financing order decision about how to prevent the bypass of the FTA charge:

"To ensure credit risks are minimized, it is necessary to take measures to prevent customers from taking advantage of the 10% rate reduction but avoiding the repayment period afterwards by switching to a schedule outside the Domestic or GS-1 rate groups. For example, a customer might take service on a GS-1 rate schedule during the rate freeze period and then switch to an agricultural and pumping rate schedule (not eligible for the rate reduction) to avoid the FTA charge once the rate-freeze period has ended. To address this concern, Edison proposes that customers who were served on a rate schedule in the GS-1 rate group as of January 1, 1998 who voluntarily switch to service on any agricultural and pumping, GS-2, or TOU-GS-2 rate schedule will continue to pay the applicable FTA charge for GS-1 customers until the RRBs have been retired.²⁸ Edison is authorized to file tariff modifications to achieve this result. If a customer migrates from GS-1 to GS-2 due to load growth, which makes the customer no longer eligible for GS-1, the customer should not be required to continue to pay FTA charges." (75 CPUC2d at 570.)²⁹

Contrary to the complainants' misrepresentation arguments, both of the above quotations from the financing order decision, and SCE's testimony in support of its financing order, demonstrate that we were fully aware that SCE was not including any GS-2 customers the group of small commercial customers eligible for the 10% rate reduction, and that we were aware of the usage cutoff for GS-1 and GS-2 customers. We were also cognizant of the fact that "[f]or this purpose," SCE's eligible customers were those in the GS-1 rate group, even though § 331(h) did not define a small commercial customer by rate group. (75 CPUC2d at 570, emphasis added.) The quotations also demonstrate that we were aware that the small commercial customers in the GS-1 rate group, who receive the benefit of the rate reduction, would be liable for the FTA charge, whereas the small commercial customers in the GS-2 rate group, who are not eligible for the rate reduction, would not have to pay the FTA charge. All of the citations to the record in A.97-09-018, as summarized above, do not support complainants' contention that SCE misled the Commission about which schedules should be eligible for the 10% rate reduction.

On July 1, 1997, SCE, PG&E, and SDG&E jointly filed the "Direct Access Implementation Plan" in R.94-04-031 and I.94-04-032. Among other things, the plan described how the 20 kW threshold would be used to determine eligibility for load profiling, third-party metering services, and the 10% rate reduction. The plan specifically stated that: "The criteria for determining customer eligibility in each case will differ between UDCs because of their different rate schedule eligibility criteria." (R.94-04-031, I.94-04-032, Direct Access Implementation Plan, p. 13.) The plan then described which rate schedules each of the three utilities would use. For SCE, the plan stated:

"Edison's residential and small commercial customers are those served on rate schedules in the Domestic and GS-1 rate groups. PU Code Section 331(h) defines `small commercial customer' as a customer that has a maximum peak demand of less than 20 kW, which is consistent with Edison's GS-1 rate schedule. Thus, Edison will use the same criteria for having an hourly meter as is currently used for transitions between GS-1 and GS-2 rates." (R.94-04-031, I.94-04-032, Direct Access Implementation Plan, p. 14.)

The pro forma tariffs, including SCE's Rule 1, and the primary direct access tariff, were approved in D.97-10-087. In the decision, we recognized that each utility's definition of the term "small commercial customer" or "small customer" "affects how it categorizes small customers." (76 CPUC2d at 303.) As part of the definitions in the approved direct access tariff, we stated that:

"Unless otherwise stated, all references to `small commercial customers' in this rule will be defined in Rule 1." (76 CPUC2d at 337, 377, fn. 8.) In addition, the direct access tariff also stated that: "All Small Customers, as defined in Rule 1, Definitions, except for agricultural and lighting customers, are eligible for a 10% reduction in rates effective January 1, 1998." (76 CPUC2d at 338.)

SCE's proposed Rule 1 included the definition of "Small Commercial Customer" as follows: "For purposes of Rate Reduction Bonds, customers served under Schedules GS-1, TOU-GS-1, and TOU-EV-3. (See R.94-04-031, I.94-04-032, "Revised Direct Access Tariff," Sept. 16, 1997.)

It is apparent from the direct access implementation plan and D.97-10-087, that there were differences between the rate schedules of SCE, SDG&E and PG&E. These differences affected the eligibility of small commercial customers for the 10% rate reduction from one utility to the other. The complainants' arguments that SCE misled the Commission about which rate schedules should be eligible for the 10% rate reduction, while SDG&E and PG&E did not, is without merit.

Based on the above discussion, the decisions and tariffs which the complainants allege are in violation of § 331(h) due to SCE's misrepresentations, should not be revisited because the record and decisions demonstrate that no misrepresentation occurred.

D. Independent Liability Theory

The complainants contend at page 1 of the complainants' prehearing conference statement that even if the financing order decision is final, and even if SCE complied with those determinations, SCE has independent liability based on its failure to comply with other Commission orders and with the Public Utilities Code.

We do not agree with the complainants that under the circumstances they should be allowed to pursue their request for relief under an independent liability theory. The complainants' independent liability theory is premised on the complainants' arguments that the financing order decision and other decisions are inconsistent with § 331(h), or are inconsistent with each other or ambiguous. As discussed above, the complainants failed to timely challenge all of the decisions which addressed which customers would be eligible for the 10% rate reduction. Since the underlying dispute concerns the interpretation of § 331(h) by the Commission and SCE in prior Commission decisions, it is too late for the complainants to challenge the outcome of prior Commission decisions through the means of a complaint proceeding.³⁰ (See 74 CPUC2d at 616.)

Another reason why we should not revisit our prior Commission decisions regarding the 10% rate reduction is because of § 841(c). That subdivision provides in part that "the financing orders and the fixed transition amounts shall be irrevocable and the commission shall not have authority either by rescinding, altering, or amending the financing order or otherwise, to revalue or revise for ratemaking purposes the transition costs, or the costs of providing, recovering, financing, or refinancing the transition costs...."

The complainants' request for relief seeks to expand the 10% rate reduction to include the complainants. However, § 841(c) provides that the financing order is irrevocable, and that the Commission shall not have the authority to revalue or revise the costs of providing the transition costs. Since the time for the complainants to challenge the financing order decision has passed, § 841(c) prevents us from revisiting the financing order decision for the purpose of revising the costs of providing the 10% rate reduction to additional customers.³¹