V. Procedural Issue-Rule 77.6

According to the Application, the Draft Alternate Decision of President Peevey ("Draft Alternate"), which was adopted as the Decision, was not circulated for comment for the required 14 days. The rehearing Application states that the Draft Alternate was posted on the internet, and served on the parties, 13 days in advance of the Commission meeting where it was adopted. In its Response, Edison contends that although the Draft Alternate was not served on parties until 13 days prior to Commission action, the Draft Alternate was in fact "posted ... on its [the Commission's] website" for the full 14 days. (Response of Edison, at p. 3.)

Section 311, subdivision (e) gives the Commission authority to adopt rules governing the circulation of alternates, so long as a minimum period of review is provided for. When the Draft Alternate was circulated, this statutory minimum was 10 days. (It was altered to 30 days, effective January 1, 2006.) Rule 77.6, subdivision (e), of the Commission's Rules of Practice and Procedure states that if parties are given less than 14 days to comment on an alternate, the matter will be held for at least one meeting. Strict application of that rule here makes little sense. Parties were allowed at least 13 days to comment on the Draft Alternate. If Edison's contention is correct, parties had electronic access to the Draft Alternate for 14 days but did not receive formal service until 13 days prior to the Commission meeting at which the Draft Alternate was adopted. TURN, in fact, successfully filed Comments on the Draft Alternate, and does not allege that it was unable to make or file comments on any particular issues by the delay of service. Nothing in the Application alleges that any harm resulted from the late service of the Draft alternate.

In this situation, we should exercise our authority to "permit deviations" from the Rules of Practice and Procedure. (Rule 87.) Section 311, subdivision (e) makes it clear that the length of time for review of an alternate is to be established pursuant to the Commission's rules. Allowing a slight deviation from the rule in this case, where no harm has been demonstrated, does not conflict with the statute.