5. Amendment to Commission Procedural Rules
Before enactment of DIVCA, the Commission's complaint jurisdiction derived from Pub. Util. Code § 1702. That statute authorizes the Commission only to hear a complaint against a public utility, and Rule 4.1 of the Commission's Rules of Practice and Procedure mirrors the statute. DIVCA, however, enlarges the Commission's complaint jurisdiction by directing the Commission to hear a complaint brought by a local government against a state video franchise holder, even though the latter, by express provision of DIVCA, is not a public utility.32
In response, the Commission followed the procedure of the Office of Administrative Law (OAL) for regulatory changes necessitated by a changed statute.33 Under the procedure, the Commission submitted a proposed amendment to Rule 4.1, allowing local governments to file complaints pursuant to DIVCA. OAL approved the proposed amendment on June 11, 2007. The amendment is set forth in the Appendix to today's decision; new words are underlined.
In the Scoping Memo, the assigned Commissioner indicates that aside from Rule 4.1, staff has not found any other incompatibilities between DIVCA and our current rules. Parties were invited to comment on incompatibilities they might have noted.
We received comments from four parties. None of the commenters identifies any direct conflicts between DIVCA and the Rules of Practice and Procedure.34 AT&T California notes, however, that some rules (citing the intervenor compensation rules as an example) may not apply to DIVCA proceedings. Accordingly, AT&T California requests the Commission clarify that its determination to use the existing Rules of Practice and Procedure does not constitute a determination that they are wholly applicable to DIVCA proceedings.
AT&T California's understanding is correct. Because the Rules of Practice and Procedure are used in all formal proceedings at the Commission, there will always be rules that are inapplicable in any given type of proceeding. Regarding the specific example cited by AT&T California, the Commission has already determined that intervenor compensation is not available in a proceeding arising under DIVCA, so there is no reason in a DIVCA rulemaking, for example, to file a notice of intent (NOI) to claim compensation.35
32 See Pub. Util. Code §§ 5890(g), 5820(c).
33 See Calif. Code of Regulations, Title 1, § 100(a)(6).
34 AT&T California, Opening Comments at p. 4; Small LECs, Opening Comments at p. 5; SureWest TeleVideo, Opening Comments at p. 6; Verizon California Inc., Opening Comments at p. 7.
35 The Scoping Memo rejected Greenlining's NOI filed on April 2, 2007, in Phase II. The Commission has not yet addressed NOIs filed by Latino Issues Forum (November 1, 2006) and Consumer Federation of California (November 22, 2006) in Phase I of this rulemaking. Finally, TURN has requested an award of compensation for substantial contributions to D.07-03-014 (request filed May 4, 2007). However, Ordering Paragraph 25 of D.07-03-014 states: "No party shall be awarded intervenor compensation in a proceeding arising under DIVCA." This DIVCA rulemaking itself falls within the broad ambit of the holding in Ordering Paragraph 25. Therefore, the pending NOIs and TURN's request for compensation should also be rejected.
