Assignment of Proceeding

Geoffrey F. Brown is the Assigned Commissioner and John S. Wong is the assigned Administrative Law Judge in this proceeding.

Findings of Fact

1. AB 1890 authorized a rate reduction of no less than 10% for residential and small commercial ratepayers.

2. SCE's cost recovery plan was filed in R.94-04-031 and I.94-04-032 on October 15, 1996, and addressed by the Commission in D.96-12-077.

3. D.97-09-056 approved SCE's financing order, and concluded that those eligible for the 10% rate reduction and who are to pay the FTA charges should be as described in SCE's prepared testimony.

4. Anchor filed a civil action against SCE in Los Angeles Superior Court on April 10, 2001, and the causes of action for a violation of the Unfair Competition Act and fraud were stayed pending a determination by the Commission on whether SCE violated any statute or tariff.

5. Four days before the expiration of the 10% rate reduction, the complainants filed their complaint at the Commission.

6. At the September 24, 2002 prehearing conference, the parties were directed to file briefs on whether the complainants' allegations regarding the lawfulness of the decisions and tariffs were timely filed or not.

7. 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).

8. The decisions which the complainants allege 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).

9. The complainants also assert that the Commission's approval of SCE's Rule 1 and Schedule RRB are invalid and violate § 331(h) and the cost recovery plan decision.

10. Although the complaint did not reference 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 as contained in Schedule RRB.

11. Proposed Schedule RRB was approved by the Commission in D.97-09-056, and Schedule RRB was subsequently approved by the Energy Division as in compliance with that decision.

12. SCE's Rule 1 was approved by the Commission in D.97-10-087.

13. Section 1731(b) provides that an application for rehearing of a Commission decision must be filed within 30 days of the date of issuance of the decision, and § 1732 provides that the application for rehearing shall set forth the grounds on which the applicant considers the decision or order to be unlawful.

14. The complainants did not file any applications for rehearing of the cost recovery plan decision, the financing order decision, the direct access implementation decision, or any other decision that addressed the small commercial customer definition in § 331(h), nor did they file any protests to the advice letter filings which sought approval of SCE's Rule 1 or Schedule RRB.

15. The 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.

16. Rule 47 of the Rules of Practice and Procedure provides that a petitioner may ask the Commission to make changes to the text of an issued decision.

17. Since the relief that the complainants are seeking is based on an alleged conflict of SCE's Rule 1 and Schedule RRB with § 331(h), the relief, if granted, 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.

18. 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).

19. In D.96-04-050, we described the differences between SCE's GS-1 and GS-2 rate groups, and the differences in charges for the GS-1 and GS-2 rate schedules.

20. From the utilities' cost recovery plans, we knew that each utilities' plan 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.

21. In D.96-12-077, we approved SCE's cost recovery plan as meeting the criteria set forth in § 368, left the implementation details of the 10% rate reduction to another proceeding, stated that the resolution of these other issues would conform to the statute, and recognized the interrelationship between those customers who receive the rate reduction and their obligation to pay the associated rate reduction bonds.

22. SCE's application for a financing order was filed on May 6, 1997 in A.97-05-018.

23. 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 in the group of small commercial customers eligible for the 10% rate reduction, that we were aware of the usage cutoff for GS-1 and GS-2 customers, and that for the purposes of the rate reduction the eligible SCE customers are those in the GS-1 rate group even though § 331(h) did not define a small commercial customer by rate group.

24. The financing order decision, and SCE's testimony in support of its financing order, 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.

25. The utilities jointly filed the direct access implementation plan in R.94-04-031 and I.94-04-032 on July 1, 1997.

26. The direct access implementation plan stated that the criteria for determining customer eligibility in each case will differ among the utilities because of their different rate schedule eligibility criteria.

27. SCE's proposed Rule 1 and the primary direct access tariff were approved in D.97-10-087.

28. We recognized in D.97-10-087 that each utilities' definition of "small commercial customer" or "small customer" would affect how it categorizes small customers.

29. The complainants' request for relief seeks to expand the 10% rate reduction to include the complainants.

30. Since today's decision concludes that the complainants' challenges to the decisions and tariffs are untimely, and there are no compelling reasons for us to reexamine these decisions, no evidentiary hearings are needed.

Conclusions of Law

1. 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.

2. 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 § 331(h) as developed in the cost recovery plan decision, the financing order decision, and the direct access implementation plan decision.

3. Since no one raised in any application 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.

4. Section 1709 prevents a party from making a collateral attack on a Commission decision.

5. A collateral attack is an attempt to impeach the judgment or order in a proceeding other than that in which the judgment was rendered.

6. The complaint, by seeking to 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, amounts to a collateral attack on the underlying Commission decisions, specifically precluded by § 1709.

7. The failure to file a timely application for rehearing of a decision cannot be cured by a collateral complaint filing.

8. The complaint should be dismissed with prejudice because the complainants failed to challenge the disputed decisions in a timely manner.

9. Since the complaint alleges 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 decisions cannot be addressed unless the issue regarding the lawfulness of those two decisions has been litigated.

10. Section 1709 prevents us from modifying the decisions in this complaint proceeding because the direct access implementation plan decision and the financing order decision are final decisions.

11. 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.

12. The citations to the record concerning SCE's financing order in A.97-09-018 do not support the complainants' contention that SCE misled the Commission about which schedules should be eligible for the 10% rate reduction.

13. The citations to the record concerning the direct access implementation plan in R.94-04-031 and I.94-04-032 do not support the complainants' contention that SCE misled the Commission about which schedules should be eligible for the 10% rate reduction.

14. 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.

15. Since the complainants' independent liability theory is premised on the arguments that the financing order decision and other decisions are inconsistent with § 331(h), or are inconsistent with each other or ambiguous, and because no timely challenges to these decisions were filed, it is too late to challenge the outcome of these prior decisions through the means of a complaint proceeding.

16. Section 841(c) prevents us from revisiting D.97-09-056 for the purpose of revising the costs of providing the 10% rate reduction to additional customers, and from revaluing or revising the financing of the FTA charge.

ORDER

IT IS ORDERED that:

1. The complaint filed on March 27, 2002 by Anchor Lighting, and Thomas H. Simcox against Southern California Edison Company is dismissed with prejudice.

2. This proceeding is closed.

MICHAEL R. PEEVEY

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