X. Complainants' Request for Compensation

On February 1, 1993, Westcom filed a "Request for Findings of Eligibility for Compensation" in this proceeding. Sunde's name was not included in this request. Oppositions to Westcom's request were filed by Pacific, Teltrex Management Corporation, and Call America.

In D.94-04-082, the Commission addressed Westcom's request for compensation. With respect to Westcom's request that it be deemed eligible for compensation from a common fund of reparations or from the Advocates Trust Fund, the Commission stated "that it is premature at this stage to find that Westcom is eligible for compensation from either of those two sources." The Commission determined that neither of those two sources "require that a person be found eligible for compensation prior to the conclusion of the proceeding." (54 CPUC2d at pp. 261, 265.)

Due to the repeal of former Article 18.7 of the Commission's Rules of Practice and Procedure, which included former Rule 76.54, and the adoption of Article 18.8 of the Rules, the Commission decided not to issue a preliminary ruling pursuant to Pub. Util. Code § 1804(b)(1). However, in D.94-04-082 the Commission stated: "we shall permit Westcom to make a showing of significant financial hardship in accordance with § 1804(c) after a final order or decision has been issued." (54 CPUC2d at p. 261.)

After the time for the filing of an application for rehearing of D.94-04-082 had lapsed, Sunde sent a letter dated November 2, 1994 to the ALJ seeking the issuance of a formal Commission decision on Westcom's eligibility pursuant to Pub. Util. Code § 1804(b)(1). Letter responses to Sunde's letter were submitted by some of the defendants. In an ALJ ruling dated November 23, 1994, the ALJ ruled that Westcom's letter should be treated as a motion and denied Westcom's request that the Commission issue a decision addressing Westcom's request for eligibility.

Sunde then sought to relitigate this issue by filing his Petition with the California Supreme Court in January 1995. Sunde's Petition was summarily denied by the California Supreme Court.

At about the same time that Sunde filed his Petition with the Supreme Court, the complainants submitted their fourth amended complaint on December 28, 1994 adding Sunde's name as a complainant. In addition, on February 16, 1995, Sunde and Westcom submitted an "Amended Request For Findings of Eligibility For Compensation," adding Sunde's name to the request for compensation and substituting the original reference to Article 18.7 of the Rules with references to Article 18.8. On March 24, 1995, an ALJ ruling allowed the filing of the complainants' amended request, and the responses to the amended request. The ruling also referenced the Commission's decision in D.94-04-082, and stated:

"To the extent that the complainants expected a preliminary ruling to issue following the submission of the amended request, such a ruling shall not be issued. Instead, a determination as to whether the complainants are eligible for compensation from a common fund, the Advocates Trust Fund, or Article 18.8 will be addressed at the time a final order in this proceeding is issued, or shortly thereafter."

Under the circumstances and the actions of the complainants, we conclude that Westcom and Sunde are not eligible for compensation in this proceeding for three reasons. First, as we discussed in this decision, the actions and conduct of the complainants amounted to unclean hands and an abuse of the Commission's process, which merit dismissal of the complaint. To award the complainants compensation for conduct which results in dismissal of their complaint and rewards them for this kind of behavior is inconsistent with the Legislature's intent that the intervenor compensation program be administered in a manner that encourages effective and efficient participation. (See Pub. Util. Code § 1801.3(b).)

Second, no common fund has been established as a result of this complaint proceeding. Instead, the complaint is being dismissed. In addition, the Advocates Trust Fund has been fully depleted and the Trust has been dissolved. (See Resolution ALJ-183.)

Third, the complainants do not qualify as a "customer," and they have not made a "substantial contribution" to this decision, as required by the intervenor compensation statutes. The complainants are not representing consumers, customers, or subscribers of the telephone companies, the complainants were not authorized by a customer to represent the customer, and Westcom's articles of incorporation or bylaws does not authorize it to represent the interests of residential customers. (Pub. Util. Code § 1802.) Instead, it is clear from the record that the complainants filed the complaint on their own behalf and for their self-interest. In addition, the complainants have not made a substantial contribution to this decision because we have not adopted any of

their contentions or recommendations. (Ibid.) Instead, we are dismissing the complaint due to the actions and conduct of the complainants.

Accordingly, Westcom and Sunde's request for compensation from a common fund, the Advocates Trust Fund, or from the intervenor compensation program should be denied.