4. 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? (See §1802(i).) 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? (See §§1802(i) and 1802.5.) As described in §1802(i), 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.⁴

Should the Commission 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 TURN made to the proceeding.

As discussed above, TURN alleges that its involvement was extensive and included participation in hearings and the various procedural steps in this proceeding. No party opposed TURN's assertions.

TURN set out numerous examples in its request for compensation, and review of D.04-09-063 shows many references to TURN's positions. One significant example is TURN's expert Roycroft's analysis and critique of the various cost models presented by the parties. Roycroft testified that by comparing results from cost models in this proceeding to the results from the cost model used by FCC, this Commission could determine which model should be adopted. In rejecting SBC's model, the Commission agreed with TURN's expert that the model relied too heavily on embedded cost data, rather than forward-looking cost data. The decision specifically relied on TURN's testimony: "We find that taken together, ORA/TURN's analysis using SynMod and JA's own sensitivity analysis varying eight inputs show that HM 5.3 is not structurally biased to produce unrealistically low results. The ORA/TURN analysis also corroborates own findings that it is difficult to change many inputs within the SBC-CA models." (D.04-09-063, at page 107.) The Commission quoted extensively from TURN's testimony and found that "ORA/TURN provided additional insightful criticism that in hindsight we find accurately describes what we have now experienced first-hand" and concluded "with the experience we have gained attempting to modify the SBC-CA models and replicate our won modified work, we concur in the criticisms of JA and ORA/TURN." (D.04-09-063, at page 118.) The Commission also relied on TURN's work in rejecting SBC-CA's amount for "fill factors," which relate to the amount of spare capacity assumed. (D.04-09-063, at page 188.) In addition to the key role played by its expert, TURN points out that this proceeding required an unusual amount of attorney and expert time to resolve procedural issues, monitor the phase setting interim rates, and provide comments on the six different proposed decisions.

We, therefore, conclude that TURN made a substantial contribution as described above. After we have determined the scope of a customer's substantial contribution, we then look at whether the compensation requested is reasonable.