8. Waiver of Comment Period

This is an intervenor compensation matter. Accordingly, as provided in Rule 77.7(f)(6) of the Commission's Rules of Practice and Procedure, the Draft Decision (DD) posted on the Commission's website on April 17, 2006 waived the otherwise-applicable 30-day comment period.

Notwithstanding this waiver, AECA submitted comments on the DD on April 21, 2006. While we do not ordinarily accept comments on intervenor compensation DDs, as to which comments have been waived, we will make a limited exception in this case to address the single issue that AECA has raised.

In its comments, AECA states that it "supports the findings of the [DD]," but also contends that the hourly rates awarded for attorney Peter Hanschen's work are too low. In particular, AECA argues that (1) Hanchen and Michael Florio, TURN's Senior Attorney, "are of commensurate experience, and are among the most respected attorneys to practice before the Commission," (2) the work that Florio and Hanschen performed between 1998 and 2000 (the starting point for computing Hanschen's hourly rate here) was compensated at essentially equal rates, (3) the intervenor compensation awards for Florio's work have steadily increased so that his work in 2004 was compensated at $435 per hour and his work in 2005 at $470 per hour, and (4) in view of their similar experience and skill, Hanschen should be awarded the same rates as Florio for Hanschen's work in this case in 2004 and 2005.

While it is true that the factors cited by AECA might ordinarily justify awarding Hanschen and Florio equivalent rates, AECA's argument overlooks key aspects of D.05-11-031. First, despite AECA's suggestion to the contrary, D.05-11-031 clearly states that the guidelines set forth therein are to be used for setting intervenor compensation rates for work performed in 2005. (See, mimeo. at 16-17, 29.) Even though determining intervenor compensation rates may be, as AECA says, an "evolving process" and D.05-11-031 may not "necessarily [be] a template for future hourly rate updating," the rules set forth in that decision are not merely advisory. Indeed, AECA itself concedes that the DD "properly applied the guidelines set forth in D.05-11-031." (AECA Comments, p. 4.)

Second, AECA's argument ignores the specific language in D.05-11-031 which recognizes that for each particular advocate category, differences in rates among comparably-qualified advocates are not unreasonable and are likely to persist. For example, in discussing the third factor that could justify awarding a higher rate in 2005 than in 2004, D.05-11-031 states:

"Where a representative's last authorized rate is below that of the range of rates shown in the tables above for representatives with comparable qualifications, an increase is reasonable to bring the representative's rate at least to the bottom level of the rate range. Here, we have in mind certain representatives who have historically sought rates at or below the low end of the range of rates for their peers. We emphasize, however, that for any given level of qualifications, there will always be a range of rates in the market, so this increase is intended to narrow but not necessarily to eliminate perceived disparities." (Mimeo. at 17-18; footnote omitted; emphasis added.)

In this case, while it is true that the DD awards rates for Hanschen's work in 2004 and 2005 that are only about 70% of the rates approved for Florio's work in other matters during the same period, the fact remains that Hanschen's approved rates -- $340 for 2004, and $350 for 2005 - are well above the bottom of the range of rates for attorneys with Hanschen's level of experience. Thus, while lower than Florio's, they cannot be considered inequitable under D.05-11-031, and we will not increase them.