Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding, we look at several things. First, did the ALJ or Commission adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer?⁶ Second, if the customer's contentions or recommendations paralleled those of another party, did the customer's participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision?⁷ As described in § 1802(h), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.

In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer's presentation substantially assisted the Commission.⁸

Even where the Commission does not adopt any of the customer's recommendations, compensation may be awarded if, in the judgment of the Commission, the customer's participation substantially contributed to the decision or order. For example, if a customer provided a unique perspective that enriched the Commission's deliberations and the record, the Commission could find that the customer made a substantial contribution. With this guidance in mind, we turn to the claimed contributions each intervenor made to this proceeding.

UCAN

The Commission in D.04-05-057 generally avoided crediting individual contributors because there were so many opportunities to comment that most rules went through many iterations and numerous modifications from the initial proposal to the final decision.⁹ Throughout the proceeding many of the consumer-oriented parties collaborated with one another to submit comments, motions, workshop products, and replies and responses to the comments and motions of industry participants. At various points, UCAN made joint submittals with TURN, Consumers Union, NCLC, and California Department of Consumer Affairs, and reports having worked at other times to coordinate informally with ORA, the California Attorney General's office, and Greenlining Institute. The Commission in D.04-05-057 in many places referred to and relied on the work of the consumer groups as a bloc.¹⁰ At other times, each of the consumer groups, including UCAN, made individual contributions.¹¹ As UCAN notes, it was generally not possible for consumer representatives to separate out their unique inputs to the group products, and we agree that is unnecessary for our purposes here.

During the course of the proceeding, UCAN contributed in one form or another to most of the rule sections that eventually became Part 2 of the general order, and to many other topics addressed in the decision. UCAN's individual contributions were particularly noteworthy in supporting the need for the new rules and their economic effects. Industry participants' reaction to UCAN's Navarro paper¹² was one contributing factor that led to the Commission's extensive discussion explaining the adequacy of the record supporting the rules' economic effects.

Many of UCAN's recommendations were adopted; some were not. We need not deconstruct every claimed instance of UCAN's contributions here because even where its recommendations were not adopted, they generated spirited debate and led to a fuller examination of the issues. UCAN has made a substantial contribution to the proceeding and should receive an award of compensation.

TURN

TURN participated, as did UCAN, through products both submitted jointly with others and submitted on its own. TURN's joint submittals were made with UCAN, Consumer Action, Consumers Union, NCLC, and California Department of Consumer Affairs. TURN notes that by coordinating their efforts, the consumer representatives were able to achieve efficiencies that allowed a greater level of participation than any of them could have achieved on their own, and to forge agreement on the best set of rights and rules for consumers. This unified front on highly contentious issues facilitated the Commission's work as well. Additionally, the various stakeholders met periodically through workshop and working group negotiating sessions at the urging of the ALJ and Assigned Commissioner to discuss technical aspects of the rules and attempt to narrow their differences.

TURN does not attempt to enumerate every instance where D.04-05-057 (or one of the draft or alternate decisions leading to it¹³) adopted its recommendations because there were so many, and because it would be impractical to attempt to separate out its contributions submitted as part of consumer groups' joint products. It does, however, cite various provisions of Rule 1, Rule 2 (primarily the earlier drafts), Rules 3 through 7, Rule 9, and Rule 11 for which it claims (with its other consumer collaborators) a measure of credit. We note that some of the specific subrules it cites were already included in the staff's February 2000 recommendations that the Commission advanced for comment in R.00-02-004, and the adopted versions of others were taken from earlier decisions and (almost verbatim) from statutes. That does not diminish the value of TURN and the other consumer parties' contributions, however, because they did provide suggested modifications and a vigorous consumer presence to help overcome industry commenters' efforts to weaken or discard those proposed rules.

Similarly, TURN cites its contributions to other decision topics including detariffing, limitation of liability, consumer education, and privacy. While none of those topics have been finally disposed of in D.04-05-057, the proceeding has been kept open to address them in a future decision. We recognize the considerable effort the parties devoted to these topics and conclude that even in these areas where we have not yet reached a conclusion, we have benefited from TURN's analysis and discussion. TURN has made a substantial contribution to the proceeding and should receive an award of compensation.

WCA

WCA is a non-profit consumer advocacy organization with considerable background and experience in dealing with wireless issues. It receives and deals with a large number of wireless consumer complaints, and is highly knowledgeable of the technical aspects of wireless systems and the rules, regulations and decisions applying to them. Unlike TURN and UCAN, all of WCA's filings were done on its own, and all were aimed primarily at improving protections for wireless customers (although many of the changes it advocated were also applicable to other carrier classes).

At various points in the proceeding, WCA provided input and recommendations concerning the general order's proposed Rules 2 (early draft version), 3, 4, 7, 8, 11 and 15, and the privacy, detariffing and limitation of liability issues. It advocated adopting a rule requiring wireless carriers to supply consumers with better disclosure and contracts as opposed to oral agreements. WCA supported the proposition that consumers should have a clearly defined trial period to cancel service without penalty, and opportunity to opt out when carriers change their contracts. WCA advocated requiring wireless carriers to provide better coverage maps and entitling consumers to return handsets without penalty during the trial period. WCA brought its legal expertise to bear in addressing the wireless industry's recurrent contention that the Commission lacks jurisdiction to adopt a consumer bill of rights and/or specific rules. WCA also persuaded the Commission to take judicial notice of an FCC opinion on the topic in a docket for which WCA was the petitioner.

Some of WCA's suggestions were accepted and incorporated into either the drafts or final decision, and some were not. However, even those WCA suggestions and arguments that were not adopted helped generate lively debate among the parties and led us to consider alternative ways of addressing wireless (and other) consumer protections.

We agree that WCA's background and expertise give it special insight into consumer problems and potential solutions that benefited the Commission in this proceeding. WCA made a substantial contribution and should receive an award of compensation.

CSBRT

CSBRT is a non-profit organization formed for, among other purposes, advocating on behalf of California's small businesses and representing the

interests of both small business and residential customers in all matters relating to utility services. Its intervenor compensation claim cites its contributions in three primary areas: extending protections to small businesses; ensuring wireless carriers remained covered by the rules; and preserving customers' flexibility in how they sign up for and change their services.

The initial set of draft rules distributed for comment with R.00-02-004 proposed to provide protections to customers generally, but did not explicitly define small businesses. CSBRT was the primary contributor from the consumer side working to extend and preserve protections for small businesses, including those with T-1 service. As such, it successfully countered several iterations of opposing comments that would have confined the rules to protecting individuals and residential customers, or restricted their applicability to businesses much smaller than those covered in the final rules. CSBRT successfully argued that small business owners are as vulnerable to fraudulent, misleading or unfair practices as residential customers and have been hit hard by slamming, cramming and telemarketing abuses.

Although the initial set of draft rules proposed they be applied to all Commission-regulated telecommunications providers, there was continual pressure throughout the proceeding to exclude wireless carriers. CSBRT was among the many consumer groups that consistently opposed that exclusion. CSBRT argued that rules consistent across the telecommunications industry would make it much easier for small businesses to know what protections they are entitled to, and for the Commission staff to bring enforcement actions against unscrupulous providers on their behalf.

CSBRT also advocated for allowing flexibility in how consumers initiate service and add or subtract features. Agreeing with wireless carriers, CSBRT maintained that requiring written signatures would be inconvenient to customers, delay service initiation, increase costs, and be unnecessary. CSBRT urged the Commission to instead permit customers to initiate service using electronic signature, oral capture or other less burdensome methods and add or subtract features from their service or take advantage of new rates plans by contacting their carriers orally.

CSBRT was largely successful in achieving its goals in all three areas. It was the primary (although not the sole) consumer-oriented contributor in the area of defining and protecting small businesses. It was one among several or many in the other two areas. CSBRT has made a substantial contribution to the Commission's decision in this proceeding and should receive an award of compensation.

LIF

Throughout the proceeding, LIF has stressed its aim of representing the interests of low-income, immigrant and language minority customers and other vulnerable communities.¹⁴

LIF lists in its claim numerous topics from the draft, alternate and final decisions where it believes its participation made a substantial contribution. LIF argued in favor of rules and against a market-based approach to consumer protection; against having the new rules replace tariffs; in favor of prohibiting deceptive, untrue or misleading statements about rates and services; against allowing statements that are ambiguous, illegible, or too complex; in favor of in-language requirements; in favor of informing consumers of their least expensive service options; in favor of providing key terms and written contracts at in-person points of sale and promptly after for other sales; in favor of extending the penalty-free cancellation interval; in favor of improving protections against unauthorized charges; against requiring social security numbers; in favor of applying the billing rules to all carrier classes; in favor of a clearer bill statement of the no-disconnect rule and a clearer bill description of non-mandated charges; in favor of better no-disconnect rights; in favor of better agreement change notice and cancellation rights; and in favor of a consumer education program.

As with TURN, we note that many or most of the topics LIF cites as having benefited from its contributions were already included in the staff's February 2000 recommendations, or were initially suggested or addressed by others. Others amount to statutory requirements reflected in the rules. Again, that does not diminish the value of LIF and the other consumer parties' contributions because they did provide suggested modifications and a vigorous consumer presence to help overcome industry commenters' efforts to weaken or discard most of the proposed rules.

LIF was indeed an early and influential sponsor of some of the first suggestions regarding consumer education and in-language requirements, two topics still pending in the proceeding. We recognize the considerable effort LIF has devoted to all of the topics it addressed and conclude that even in those areas where we have not yet reached a conclusion, we have benefited from LIF's analysis and discussion. LIF has made a substantial contribution to the proceeding and should receive an award of compensation.

NCLC

NCLC is a non-profit consumer advocacy organization working solely on behalf of low-income residential consumers of various utility services, including telecommunications services. It does that through, among other methods, research into the legal aspects of consumer problems and assisting consumers in obtaining needed reformation of the law through judicial and other lawful processes.

NCLC was another of the consumer representatives contributing through both consumer group and individual work products. At various times, NCLC partnered with TURN, UCAN, California Department of Consumer Affairs, and Consumers Union, and at other times contributed on its own. In cooperation with UCAN and TURN, it submitted comments and replies concerning the legal requirements for rulemaking procedures, the design of consumer education programs, the wording of the consumer protection rules, the importance of disclosing terms and conditions, the handling of consumer complaints, and other issues relevant to this proceeding. NCLC also addressed a number of legal and policy issues raised by the carriers. In particular, NCLC addressed the Commission's legal authority to adopt consumer protection rules even though no party was able to quantify the precise benefits that will flow to consumers; the Commission's ability to regulate offers to consumers and disclosures of information without violating the carriers' commercial free speech rights; the right of the Commission to adopt regulations in areas the FCC currently regulates, such as privacy; and the Commission's jurisdiction over wireless carriers' terms and conditions. Finally, NCLC points to a number of wording changes it suggested be made to specific rules, and its opposition to changes proposed by the carriers. Although some of its positions were adopted and some were not, its participation on behalf of consumers unquestionably made a substantial contribution to the Commission's decision in the proceeding. NCLC should receive an award of compensation.