III. Discussion

A. Customer Status

Tate is not eligible for an award of compensation because he fails to qualify as a customer pursuant to § 1802(b).

As stated in D.98-04-059, under the intervenor compensation statutes:

An intervenor is eligible for compensation when he is a customer, and his participation in a proceeding involving an electric, gas, water, or telephone utility presents a significant financial hardship. To determine eligibility, two questions must be addressed: Is the intervenor a "customer?" Will participation present a significant financial hardship? ³

Section 1802(b)(1) defines customer to mean any of the following:

G. A participant representing consumers, customers, or subscribers of any electrical, gas, telephone, telegraph, or water corporation that is subject to the jurisdiction of the commission.

H. A representative who has been authorized by a customer.

I. A representative of a group or organization authorized pursuant to its articles of incorporation or bylaws to represent the interests of residential customers, or to represent small commercial customers who receive bundled electric service from an electrical corporation.⁴

The Commission requires a participant to specifically identify in its NOI how it meets the definition of customer.⁵

Tate's NOI claims that LFI is a customer because:

LFI is a for-profit enterprise with long-standing interest in implementing its technologies and refueling services that a successful alternative fuel program in California requires. LFI is very involved in the issues addressed in this proceeding, namely low emission vehicle programs operated by investor owned utilities.

LFI and it's (sic) customer base, lives and purchases gas services within the territories of PG&E, SCE, and SDG&E. This qualifies the LFI Section 1802(b) (sic).

As pointed out by PG&E in its opposition to Tate's request, LFI is the developer of equipment that converts natural gas into liquefied natural gas and of a refueling station for natural gas vehicles. As an intervenor, Tate opposed continued LEV program funding of the Idaho National Engineering and Environmental Laboratory (INEEL) project, on the ground that PG&E's ability to use ratepayer funds for this purpose gave PG&E an unfair competitive advantage over non-utility businesses that might develop this technology and enabled PG&E to unfairly monopolize the market. D.03-10-086 described Tate's participation as follows:

Liberty Fuels (Liberty), an equipment developer, opposes the utilities' applications.

Liberty claims that the utilities have used ratepayer funds to monopolize the Natural Gas Vehicle market and that continued funding will provide the utilities with an unfair advantage over the private sector. In support of its allegations, Liberty says that past spending has been inappropriately devoted to lobbying and promotional efforts that are contrary to D.95-11-035.

Additionally, Liberty claims, utility Research, Development & Demonstration (RD&D) efforts have been directed toward developing new products that should be undertaken by private companies. As a case in point, Liberty suggests that natural gas compressor manufacturers are better suited to conduct RD&D for such products than the utilities.⁶

Although Tate raised a number of issues related to LEV program expenditures, we find that he participated in the proceeding primarily to protect his economic interests as a competitor of PG&E in the development of the natural gas liquifier and related technology. Our past decisions have made it clear that intervenors who participate in proceedings in order to advance their own business interests do not qualify as customers under § 1802(b) and are not eligible for intervenor compensation.⁷

In addition to asserting his interest in the LEV proceeding as an equipment developer, Tate claims to be a customer because LFI and LFI's customers purchase gas from PG&E, Edison, and SDG&E. However, in order to qualify for intervenor compensation as a representative of utility customers, consumers, or subscribers, the intervenor must be an actual customer whose interests in the proceeding arise primarily from its role as a customer of the utility, and it must represent the broader interests of at least some other consumers, customers, or subscribers. ⁸ Tate's response states that although PG&E provided LFI with natural gas to operate and demonstrate LFI's small-scale liquefier at approximately 50 pounds-per-square-inch (psi) from 1997 to 1999, PG&E has not provided LFI with natural gas at 50 psi for Liberty's demonstration liquefier to be set up in Fremont, California for the past year and a half. Therefore, it is unclear whether LFI is currently a PG&E natural gas customer.

Tate's participation in this proceeding related primarily to his role as a competitor of PG&E and other utilities in the development of a liquefied natural gas compressor and related technology, rather than as a utility customer. Moreover, Tate has presented no evidence that utility customers in LFI's customer base have authorized him or LFI to represent their interests in this


proceeding or that LFI's articles of incorporation or by-laws authorize LFI to represent utility customers.⁹

As a result, although Tate may have contributed to the Commission decision in this matter, Tate and LFI do not qualify as customers eligible for intervenor compensation under § 1802 (b). Since Tate is not eligible to request intervenor compensation, it is not necessary to determine whether his participation was "substantial," or his requested fees and costs reflect "market rates," within the meaning of the statute.

B. Late Filing of NOI

We note that Tate failed to file a timely NOI as required by § 1804(a). Under § 1804(a), the NOI must be filed within 30 days after the PHC. Here, since the PHC was held on May 21, 2002, the NOI should have been filed by June 20, 2002. Tate filed his NOI on July 1, 2002, 11 days later.

However, since we find that Tate is not a customer under § 1802(b), we need not address whether his failure to file a timely NOI is separate grounds for denial of intervenor compensation.