CONCEPTUAL FRAMEWORK

The workshop participants had several principles in mind as they developed the following proposed procedure. In order to be successful (that is, to be seriously considered by the Commission and, if adopted, to effectively serve the needs of the many stakeholders), the procedure must:

▪ Satisfy the requirements of due process;

▪ Facilitate the participation of stakeholders of modest means as well as well-funded, regulatory practitioners;

▪ Enable stakeholders, and the Commission and its staff, to deploy their resources in an orderly and cost-effective manner;

▪ Enable new proposals to be made, considered, and decided without undue delay; and

▪ Serve as the vehicle for consideration of rule changes proposed by any stakeholder or combination of stakeholders, be they individuals, utilities, Commission staff, or existing or future "Rules Committees."

A. RULEMAKING AS THE PROPOSED FORUM FOR PERIODIC
RULE CHANGES

The proposed process relies on rulemaking pursuant to Article 3.5 of the CPUC's Rules of Practice and Procedure as the forum for accomplishing the review and adoption of future proposed changes to GO 95 and 128. Rule 14.2(b) provides that the CPUC may use a rulemaking to consider "the adoption, repeal or amendment of General Orders."

1. FLEXIBILITY IN USE OF WORKSHOPS AND OTHER RULEMAKING VEHICLES

Although rulemakings generally proceed upon written comments instead of evidentiary hearings (Rule 14.1), the CPUC has long authorized the use of workshops as an adjunct to rulemakings, as a means to gather parties' views and to attempt to narrow disagreement or achieve consensus. This proposed procedure would be a flexible process in which - within the legal framework of a publicly-noticed rulemaking - parties use written comments as the initial means of responding to proposed rule changes. Depending on the scope and complexity of, and the amount of contention relating to, the proposals, workshops from one to a maximum of 75 days in length could be conducted. In addition to their inherent and historical flexibility, rulemakings provide the support and oversight of an assigned administrative law judge and assigned commissioner, and assure public notice and opportunity to participate.

2. USE OF A RATE CASE PLAN-LIKE TRIENNIAL SCHEDULE

The proposed process borrows the idea of the Rate Case Plan (RCP) from the general rate cases of the larger utilities. The RCP enables the CPUC to "stage" the filing and processing of a general rate case so that its work, and that of its staff, can proceed in an orderly fashion. The RCP is, in effect, a critical path schedule with designated milestones or due dates for the steps in the rate case process. If the deadlines are adhered to, the CPUC decision can be timely issued without undue strain on public and private resources. The critical path steps are known to everyone in advance, so that they can plan well in advance to meet the due dates and to fulfill their procedural and substantive obligations. The proposed process --called the "Telecommunications and Electric Line Rulemaking Plan" (TELRP) -- contemplates a rulemaking for changes to GO 95 and 128 to be instituted no more than once every three years, and that provides that the entire process -- from issuance of the Order Instituting Rulemaking (OIR) to issuance of the final decision - will be completed in one year. Again borrowing from the RCP, "Day 1" is the date - that occurs once every three years -on or after which any entity seeking to modify GO 95 or 128 must file a petition for that purpose. All the other points on the TELRP timeline are measured from the date of issuance of the OIR: "Day R."

B. Telecommunications and Electric Line Rulemaking Plan (TELRP)

The proposed process uses a petition for modification of General Order 95 and/or 128, as the procedural vehicle for interested parties to propose changes to GO 95 or 128 and thereby signal the Commission of the need to institute a rulemaking. The petition for modification proposed in this document is analogous, but not identical, to the Rule 47 petition for modification of a prior Commission decision.⁴ Pursuant to Public Utilities Code section 1708, the Commission may at any time "rescind, alter, or amend any order or decision made by it." The Rule 47 petition for modification has been the means for interested parties to request changes to prior decisions. Rule 47 sets forth a complete procedure for filing and responding to petitions for modification, and specifies the substantive support that a petitioner must include in order for its proposal to be considered. For purposes of the TELRP, the Rule 47 model has been modified in the following respects:

(1) Opening and reply comments were substituted for "responses" and "replies," and ALJ permission is not required to file reply comments; and

(2) Rule 47 petitions must be filed within one year of the decision sought to be modified, or good cause must be shown for filing later than one year after the decision in question. The TELRP petition eliminates this requirement, since the procedure contemplates that petitions may be filed on or after a triennial start date.

Any interested party may file a TELRP petition, although joint petitions are encouraged in the interest of administrative efficiency. For example, utilities and other parties that participate in the General Order 95/128 Rules Committee may elect to propose rule changes initially in that forum with any resulting agreed-upon rule changes to be included in a TELRP Petition filed by that organization on behalf of its members.

Once the petition(s) have been filed, the Commission should issue an OIR, and consolidate the petitions (if more than one) into the OIR docket for further processing. The OIR should state that it will be processed in accordance with the TELRP.

The proposed process gives the interested parties flexibility in how the workshops are run (assuming workshops are determined to be necessary). They may, (1) request the General Order 95 Rules Committee to serve as facilitator, (2) contract for the services of a professional facilitator or (3) request that the ALJ or Assigned Commissioner serve as chair or facilitator. If they don't select one of those options, it will be necessary for them to designate one party's representative to serve as chair or facilitator.

After Opening and Reply Comments on the Petition(s) are filed (Days R+30 and R+40, respectively), the proposed process calls for the ALJ to preside over a pre-workshop conference, at which the parties will identify themselves and the schedule and procedures for workshops will be discussed and decided among the parties. In the event consensus among the parties cannot be reached on these points, the ALJ will take them under submission and issue a ruling on them within one week.

It is hoped that the establishment of a regular three-year cycle for TELRP rulemakings will reduce the possibility of there being too many proposed rule changes to address in one OIR. In the event a large number of proposals are filed, an important task for the pre-workshop conference will be to subject the proposals to a "triage," in which priority should be given to proposals which have the greatest potential to (1) increase public and employee safety, (2) increase utility service reliability, (3) reduce costs, or (4) enhance efficiency. Proposals that involve relatively minor corrections or clarifications of existing rules should be given lower priority. Proposals that are poorly-defined or that lack supporting rationale should not be considered. Proposals that are similar in nature should, if possible, be combined into one proposal; in such cases it may be feasible for one or more parties to withdraw their proposal(s) in favor of a similar proposal filed by another party. Parties are encouraged to agree on prioritization of the proposals; however, disagreements on prioritization that are not resolved at or before the pre-workshop conference will be resolved in the ALJ's ruling.

The proposed process provides a window for workshops that opens on Day R+75 and closes on Day R+150, thus providing about two and one half months for parties to engage the issues in a collaborative effort. A written report summarizing the results of the workshops is to be filed not later than Day R+210.

The remainder of the TELRP timeline gives the ALJ two months (until Day R+270) to draft a Proposed Decision (PD), followed by Opening and Reply Comments on the PD to be filed on Days R+300 and R+330, respectively. The final decision is due by Day R+365. The Rulemaking docket will remain open for processing interim disputes (see Section D, below), until the next Rulemaking is initiated pursuant to the TELRP. The TELRP steps in which full 75-day workshops are conducted are summarized below.

Day 1	File Petition(s) for Modification⁵
Day R	CPUC Issues OIR
Day R+30	File Opening Comments
Day R+40	File Reply Comments
Day R+60	Pre-workshop Conference
Day R+75	Workshop window opens
Day R+150	Workshop window closes
Day R+210	File Workshop Report
Day R+270	Proposed Decision issued
Day R+300	File Opening Comments on PD
Day R+330	File Reply Comments on PD
Day R+365	Final Decision issued

The TELRP timeline, assuming the maximum workshop window is utilized, is shown graphically in Figure 1:

Figure 1
TELRP Timeline
(Assuming maximum use of workshop window)

As previously noted, the TELRP can also proceed without workshops, if the ALJ, in consultation with the Assigned Commissioner, finds that the subject matter is amenable to a more traditional rulemaking. In that case, the TELRP steps required to address the proposed rule changes through written comments are summarized below.

Day 1	File Petition(s) for Modification
Day R	CPUC Issues OIR
Day R+30	File Opening Comments
Day R+40	File Reply Comments
Day R+130	Proposed Decision issued
Day R+160	File Opening Comments on PD
Day R+190	File Reply Comments on PD
Day R+220	Final Decision issued

As shown in Figure 2, the timeline for the TELRP is much shorter (220 days as opposed to 365 days) if carried out through written comments rather than workshops.

Figure 2

TELRP Timeline
(Assuming written comments in lieu of workshops)

C. Protocols For TELRP Workshops

The workshop participants in R.01-10-001 expended considerable effort at the start of the workshops to agree on a process for discussing and resolving rule changes. A particularly challenging problem was to achieve efficiency (in the sense of completing discussion of each proposal within a reasonable time) without compromising fairness (which necessitated giving all viewpoints a full airing). An attempt was made to strike this balance early in the workshops, through the proposal of a set of protocols derived from prior Commission workshops.

This initial effort to establish protocols led to a realization that seems especially relevant to the subject of GO 95 and 128 rule changes. The workshop participants were unable, despite their best efforts, to agree on the meaning of "consensus" for purposes of dealing with proposed rule changes. In part, this was because of the representative roles played by the participants. The CPSD was represented by either one or two persons. Each of the investor-owned electric and telecommunication utilities was represented by from two to six persons (depending on the issue under consideration), and represented labor usually had two or three people - from different locals and the CIO - in attendance. Two of the union representatives were also representatives of the General Order 95/128 Rules Committee, a private organization to which most of the utilities belong. CPSD and several other participants voiced concern that if consensus was defined as a majority vote of the participants, the utilities would always prevail because they brought the most participants. They felt this would be true even if each party was limited to one vote, on the assumption the utilities would usually vote en bloc. On the other hand, many participants expressed concern that if consensus was defined as "unanimity," an individual hold-out could indefinitely stall an otherwise overwhelmingly supported proposal. These concerns may continue to be of concern in future workshops dealing with GO 95 and 128 rule changes. The workshop participants evolved a set of protocols which in large part addresses the concerns regarding "consensus," and (once the participants "got the hang of it") has proved reasonably efficient. The workshop participants recommend that the Commission adopt these protocols as an integral part of the TELRP, for use in future workshops conducted pursuant to that procedure. The protocols should serve equally well whether the workshops are facilitated by a third party facilitator, the ALJ, or one of the workshop participants. Although it is not our intent to stifle innovation in the workshop process, we are concerned that future workshops under TELRP, limited as they are to a maximum of 75 calendar days, not be slowed by having repeatedly to "re-invent" the rules for conducting the workshops.

The "consensus" problem was overcome by substituting several mechanisms - designed to operate sequentially - in place of voting. After the rationale for a proposed rule change ("PRC") has been explained by the proponent of the change, and positive perceptions and concerns are expressed by the other participants, the "levels of agreement "are tested by polling the parties present. Each party (through one designated spokesperson) states its level of agreement according to the following scale:

1	-	I am enthusiastic about this PRC. I am satisfied that this PRC is an expression of the wisdom of the group.

2	-	I find the PRC to be a good choice. It is the best of the options that we have available.

3	-	I can live with the PRC; I am not especially enthusiastic about it.

4	-	I will not block consensus on the PRC.

5	-	I do not agree with the PRC and I feel the need to block it from being agreed upon by the group.

6	-	I feel that we have no clear sense of unity in the group. We need to talk more before agreement can be reached.

These levels of agreement are recorded by the facilitator. If no party gives the PRC a "5" or a "6," the PRC is agreed upon as submitted. However, if it is blocked or held for further discussion, the PRC is either:

(1) Submitted to a smaller working group or committee to refine outside of the workshop process, to be brought back for later consideration;

(2) Assigned to a Multiple Alternatives Process ("MAP") in which one or more parties, individually or in small working groups, return to a later workshop meeting with alternative PRC(s); or

(3) In the case of a level "6," the workshop participants continue to work as a full group to address the parties' concerns and reach agreement.

These options enhance the opportunities for workshop participants to reach agreement through compromise, while assuring that one or more parties that hold strong views in opposition will have an opportunity to put those views before the Commission (in the event an alternative PRC developed through the MAP does not lead to agreement).

These and the other protocols recommended for use in future TELRP workshops are described in the Appendix.

D. Interim Resolution of Rule Interpretation Disputes

One of the most important principles underlying the proposed TELRP is the establishment of a process to obtain timely resolution of disputes regarding the interpretation and enforcement of GO 95 and 128. Even if the TELRP is adopted as proposed, a utility may have to operate under a problematic rule interpretation or enforcement procedure for up to three years before it can propose a clarification or change. The proposed TELRP recommends a meet and confer process for addressing these disputes. It is fundamental that the Commission and its staff be timely engaged in resolving such disputes in a fair, deliberate and coordinated manner.

1. Interim Rule Interpretations at the CPSD Staff Level

When disputes or questions arise regarding the interpretation of GO 95 and 128 rules, they tend to arise in the course of CPSD's periodic compliance audits, field inspections of utility overhead and underground systems, and investigations conducted by CPSD following an accident. When such disputes or questions arise, it is in the interest of the utilities to resolve them quickly in order to avoid delay in carrying out their inspection and maintenance duties, and it is in the interest of the Commission and its staff to obtain a result by which the utilities uniformly comply with the GOs in a timely and appropriate manner. The interests of utility employees and the public are also served by timely and appropriate compliance with the GOs.

Accordingly, the utility and CPSD staff should attempt to meet and confer to resolve the dispute or question through a frank dialog and deliberate consideration of the various points of view relating to the issue. This dialog is initiated when the utility sends a letter to CPSD's Director, with copies to other CPSD personnel involved in the issue, clearly describing the dispute or question and providing documentary support such as photographs, diagrams, schematics, or other material to facilitate the understanding and discussion of the problem. The questions posed by the utility should not involve generic hypotheticals.

The response, which shall be served on the originating utility and shall be posted on the Commission's website shall state CPSD's application of the rule in the context of the dispute presented, and may be received in subsequent CPUC proceedings as evidence of CPSD's position until such time as CPSD changes its defined application of the rule by a subsequent writing. CPSD's response letter issued pursuant to this procedure will not bind the Commission or be interpreted as a delegation of the Commission's decision-making authority; however, the intent of this proposed procedure is that in subsequent Commission deliberations relating to enforcement of GO 95 and 128, the CPSD response letters shall be considered by the Commission and given such weight as the Commission deems appropriate in the specific circumstances.

Appendix 1

Recommended Protocols for TELRP Workshops

1. PURPOSE OF WORKSHOP

The purpose of the workshop in [INSERT RULEMAKING DOCKET NUMBER] is to collaboratively explore the proposed rule changes (PRCs) relating to General Orders 95 and 128 previously filed in this proceeding, and to the extent possible to agree on specific PRCs to be recommended for adoption by the Commission.

2. WORKSHOP REPORT

The final product of the workshop will be a written workshop report that documents the agreed-upon PRCs and -- if necessary -- alternative PRCs. The workshop report will be filed with the -Commission or otherwise made a part of the official record in this proceeding as directed by the assigned Administrative Law Judge (ALJ).

2.1 Each agreed-upon PRC and alternative PRC will include specific text proposed to be added, deleted or modified, and a statement of supporting rationale.

3. WORKSHOP PARTICIPANTS

Workshop "Participant" is defined as any representative of a party to this proceeding who participates in discussing one or more of the PRCs during one or more scheduled workshop meetings. A party may bring as many representatives to participate in the workshop as it deems necessary to address the issues. A primary contact/spokesperson for each party shall be designated for purposes of notices and document distribution.

4. WORKSHOP AGENDA

An agenda for each workshop meeting will be developed by the Participants starting at the beginning of the first meeting, and will be updated through the workshop meetings as agreed by the Participants. The agenda will specify the date, time, location and host /contact person for the meeting and will list the PRCs to be addressed at the meeting.

4.1 To the extent possible, PRCs requiring the presence of Participants with special qualifications or expertise are to be scheduled for discussion on the same or consecutive days.

4.2 The Participants may agree to defer a PRC if, during discussion, it becomes apparent that participants with special qualifications or expertise, not then present, are needed to adequately address the PRC.

4.3 A party represented by a single Participant may request that a PRC of particular interest to them not be addressed on a specific date if they cannot be present on that date. Such request should be made as soon as the party's scheduling constraint becomes known to them, and all reasonable efforts shall be made to accommodate such requests.

5. DISCUSSION PRINCIPLES

5.1 The discussion of PRCs will be governed by the following general principles:

5.1.1 Describe the current situation, the reason for the PRC, and identify all material issues associated with the PRC.

5.1.2 Identify and understand the Participants' respective points of view, interests and desired outcomes relative to the PRC.

5.1.3 Obtain (to the extent feasible) data that Participants believe is necessary to understand the issues and make an informed decision on the PRC.

5.14 Address all interests insofar as possible.

5.2 During meetings, opportunities will be allowed for a brief ongoing evaluation of progress and process ("process checks").

6. DECISION MAKING PROCESS

6.1 Agreement should be sought utilizing the "levels of agreement" process:

6.1.1 Agreement is defined as "all parties present when levels of agreement are called for being at level 4 or above on the levels of agreement scale."

6.1.2 Levels of agreement scale:

Level 1 - I am enthusiastic about this PRC. I am satisfied that this PRC is an expression of the wisdom of the group.

Level 2 - I find the PRC to be a good choice. It is the best of the options that we have available.

Level 3 - I can live with the PRC; I am not especially enthusiastic about it.

Level 4 - I will not block consensus on the PRC.

Level 5 - I do not agree with the PRC and I feel the need to block it from being agreed upon by the group.

Level 6 - I feel that we have no clear sense of unity in the group. We need to talk more before agreement can be reached.

6.1.3 Each party shall state a single level of agreement, regardless of how many Participants it has brought to the workshop meeting.

6.1.4 A "straw vote" to ascertain the level of support for, or opposition to, a PRC may be called for at any time.

6.1.5 Tentative working agreements may be reached on parts of complex PRCs, subject to final agreement on the entire PRC.

6.1.6 If no party gives the PRC a "5" or a "6", the PRC is agreed upon as submitted. However, if it is blocked or held for further discussion, the PRC is either:

6.1.6.1 Submitted to a smaller working group or Committee to refine outside of the workshop process to be brought back for later consideration;

6.1.6.2 Assigned to a Multiple Alternatives Process (MAP) in which one or more parties, individually or in small working groups, return to a later workshop meeting with alternative PRCs; or

6.1.6.3 In the case of a level "6," the Participants continue to work as a full group to address the parties' concerns and reach agreement.

6.1.7 If a PRC is assigned to a MAP but does lead to agreement, the proponent(s) of each MAP alternative may submit their alternative(s), with statement(s) of rationale, for inclusion in the Workshop Report (see section 11, below).

6.2 Parties are responsible to have a Participant at each meeting who has authority to decide on the topics to be addressed in that meeting, and who will seek management input prior to each meeting in order to expedite the work of the workshop.

6.3 Any party that, without prior notice to the other parties, is absent from a meeting at which a PRC is agreed upon, is deemed to have abstained from the determination of levels of agreement, and has waived the opportunity to challenge the PRC or propose an alternative PRC. This protocol may be waived by agreement of the parties at a subsequent meeting in the event the party's absence was due to circumstances beyond its control.

6.4 Agreed-upon PRCs will be placed on a consent agenda, to be addressed at the start of the subsequent meeting, in order to allow parties time to seek final approval of the PRCs by their respective managements, when such approval has been stated by parties to be necessary. Any party may remove any PRC from the consent calendar for further workshop consideration, based on their management's direction.

6.5 Each Participant is responsible to keep his or her organization/constituency group(s) informed of the progress of the workshops and to timely seek advice, comments and authorization as required.

6.6 Participation by Proxy

Parties represented by a single Participant may designate another Participant to serve as their proxy for purposes of expressing levels of agreement, if they are unable to attend a workshop meeting. In order to utilize a proxy, the party must satisfy the following requirements:

6.6.1 The party shall notify the other parties by email or facsimile at least 1 business day prior to the meeting at which they expect to be absent;

6.6.2 The party shall provide clear directions to the proxy regarding any limitations on the proxy's authority, in the event the PRC is modified in the course of discussion; and

6.6.3 The proxy must inform the facilitator and Participants of their role at the beginning of the meeting.

7. COMMUNICATIONS AND PUBLIC NOTICE

7.1 Any or all Participants may meet or conference call among themselves between workshop meetings as desired or necessary to negotiate an advancement of their work.

7.2 Audio and video recording devices are not to be used in meetings for any purpose. Participants are encouraged to explore ideas freely and the only agreements are those explicitly reached.

7.3 A Participant shall be designated to keep the assigned ALJ informed of the dates, times, location and host contacts for upcoming workshop meetings, in time for that information to be posted on the Commission's website and to be periodically issued in rulings as the ALJ deems appropriate.

8. INFORMATION MANAGEMENT

8.1 A meeting summary will be prepared following each working group meeting stating:

8.1.1 All Participants at the meeting, including their e-mail addresses and telephone and facsimile numbers;

8.1.2 PRCs discussed;

8.1.3 Agreements, if any, with supporting rationale; and

8.1.4 MAP proposals, if any.

8.2 The meeting summary will be prepared by the facilitator (see Section 9, below). Meeting summaries will be available the following week and will be emailed or faxed to all Participants. The meeting summary will be reviewed for corrections by the Participants, preferably by email or teleconference between workshop meetings.

8.3 The Facilitator will maintain a file containing copies of all written information distributed by the Participants.

8.3.1 Workshop Participants, and the parties they represent, reserve all rights to preserve the confidentiality of information in their possession, and participation in the workshop shall not be implied or understood to constitute a waiver of such rights.

9. PARTICIPANT ROLES

9.1 The Facilitator

9.1.1 Works on behalf of the Participants under the direction of the participants;

9.1.2 Makes participation easier and encourages participation by all who wish to participate;

9.1.3 Reminds participants of the protocols as necessary;

9.1.4 Suggests strategies to move the discussion along, as appropriate;

9.1.5 Uses a computer as appropriate; and

9.1.6 Carries out such other supportive activities as agreed upon by the Participants or as directed by the ALJ.

9.2 The Secretary or Technographer assists the Facilitator and Participants by taking notes on a computer, flip charts or other media that serve as "workshop memory."

9.3 The Participants:

9.3.1 Listen carefully, ask pertinent questions and educate themselves and others regarding the issues and interests that must be addressed, in a collaborative rather than confrontational manner.

9.3.2 Fully and thoughtfully explore the issues before forming conclusions.

9.3.3 Search for creative solutions that best serve the issues and interests that must be addressed.

10. WORKSHOP ACCESS AND ACCOMMODATIONS

Workshops shall be scheduled in locations that comply with the Americans with Disabilities Act.

(END OF APPENDIX B)

Appendix C

List of Wireless Carriers

⁴ Petitions for modification pursuant to Rule 47 require the petitioner to specify the prior commission decision proposed to be changed. Because of the long and complex history of GO 95, it may be difficult (especially for stakeholders having modest resources and experience) to identify with certainty all of the prior Commission decisions that might have to be changed to accomplish a rule change. This aspect of Rule 47 seems an unnecessary obstacle in the context of proposed changes to GO 95 and 128, and is the primary reason an analogous, though somewhat different, procedure has been proposed as part of the TELRP. ⁵ Interested parties should seek support from other potential parties prior to Day 1 and, if possible, should petition jointly.