IV. Substantial Contribution
In evaluating whether a customer made a substantial contribution to a proceeding we look at several things. First, did the ALJ (e.g., in a Proposed Decision (PD), see D.04-02-018) 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.6
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.7 This rule is important for TURN here, as we discuss below.
With this guidance in mind, we turn to the contributions TURN claims it made to each of the five subject decisions.
In D.02-10-020, the Commission addressed 144 issues arising from the audit of Verizon conducted by ORA.8 The parties, including TURN, resolved most of the issues in a stipulation that was approved by D.02-10-020 in accordance with Rule 51.1(e).9 Among other things, the stipulation required Verizon to (1) implement new procedures to ensure proper regulatory accounting for affiliate transactions and unregulated activities, and (2) submit restated financial reports reflecting many of the financial adjustments identified in the audit report.
Two sets of issues in ORA's audit report were unresolved. The first set concerned Verizon's relationship with its affiliate responsible for publishing white page and yellow page directories.10 The Commission agreed with TURN that the imputation of the affiliate's excessive directory earnings for ratemaking purposes is consistent with Federal Communications Commission (FCC) regulations. The Commission also agreed with TURN that Pub. Util. Code § 728.2 requires the Commission to consider directory earnings when setting rates for telephone service.11 Finally, the Commission agreed with TURN regarding an investigation of whether revenues from electronic directories should be imputed for ratemaking purposes and directed ORA to examine this issue in its next audit of Verizon.12
The second set of contested issues pertained to what rules should apply to transactions between Verizon and its affiliates. TURN opposed all of Verizon's proposed rules and these rules were rejected by D.02-10-020.13 While D.02-10-020 declined to adopt ORA's proposal to reduce Verizon's rates for failure to comply with existing rules, the decision agreed with TURN that the Commission has the discretion to order such rate reductions.14 The decision also concurred with TURN that Verizon's failure to comply with the Commission's rules placed ratepayers at some risk of harm.15 Additionally, D.02-10-020 agreed with TURN that audits are an integral part of NRF, and that a thorough audit of Verizon (rather than the "focused" audit sought by the utility) should begin for the period 1999-2002.16
In its October 19, 2005, supplement to the request, TURN claimed that it had prevailed on all issues it litigated in connection with D.02-10-020. This is not actually correct. TURN acknowledges that the Commission did not adopt its recommendations to make Verizon's earnings subject to refund, but asserts that it nonetheless "prevailed" because the Commission found it has the discretion to order rate reductions and deferred the refund issue to Phase 3 of this proceeding. Given that the Commission rejected a refund, TURN did not prevail on this issue. TURN's request attributes $32,028.33 to this "ratemaking authority" issue. We disallow this amount.
In sum, we find that, with the exception of time related to the ratemaking authority issue, TURN made a substantial contribution to D.02-10-020, both on the issues covered by the stipulation adopted by the decision and on the disputed issues resolved by the decision.
In D.03-10-088, the Commission evaluated and made findings on the quality of Verizon's and Pacific's service to telephone customers for the period 1990, when NRF became effective, to the time of the hearing in 2002.
TURN claims it is entitled to compensation for all of its service quality hours even though in many instances only the PD, and not the final Commission decision, adopted TURN's position. TURN concedes that "it is not unusual for a commissioner's alternate to result in a dramatically different outcome than set forth in the ALJ's proposed decision." However, TURN notes, "on service quality issues, not only did the Commission reach a very different outcome, but it did so by making very substantial changes to the manner in which the underlying issues were considered and analyzed." TURN continues, "[t]he final decision largely bypassed TURN's analysis (as well as the analysis of the other active parties, including Pacific and Verizon) in favor of a statistical analysis that surprised all of the active parties (and delighted half of them)."
Despite the difference in methodology, TURN asserts that it made a substantial contribution to D.03-10-088. TURN also claims that it is entitled to compensation because the PD embraced a large proportion of its analysis and resulting recommendations.
TURN gives several examples of claims the PD adopted and the Commission rejected. First, with respect to installation issues, TURN alleged that Pacific had allowed its staffing levels to drop to inadequate levels during the NRF period, with adverse consequences for service quality thereafter. The PD found problems with Pacific's installation performance showing its response time for repairs worse in 2000 as compared to 1994.
Second, the PD concluded that Pacific's answer time performance demonstrated problems, and relied on TURN's analysis of raw data obtained from Pacific as support for the conclusion on some of these difficulties.
Third, TURN raised concerns regarding the manner in which Pacific deployed advanced services and the resulting threat that such deployment would create two classes of customers-the "haves" and "have nots"-with disparate levels of service quality. The PD found merit in TURN's concerns, particularly to the extent that Pacific's Digital Subscriber Line (DSL) services may fail to benefit all customers equally. The final decision relied on the Commission's own experience, suggesting that it is geology, rather than socio-economic status, that dictates deployment of advanced services, as it is "the economically exclusive hillside homes in Northern and Southern California where advanced services such as DSL have proved problematic to deploy."17 The final decision also noted that the issue would likely be addressed in R.03-04-003, the broadband rulemaking.
Fourth, TURN's testimony and briefs pointed out that on certain installation measures Verizon had shown a pattern of both worsening and improving performance. Verizon countered that a certain amount of variability of performance was to be expected. The PD disagreed with Verizon's defense and instead concluded that Verizon's installation intervals were problematic. The final decision determined that statistically the variations were insignificant.
On the subject of Verizon's repair performance, TURN presented considerable testimony on Verizon's worsening repair intervals through 2001. Verizon sought to counter that testimony by relying on 2002 repair data. However, the PD agreed with TURN that the more recent data was problematic due to Verizon's attempt to annualize repair data from just the first three months of 2002. The PD echoed TURN's concern with the deterioration in Verizon's repair intervals in 2000 and 2001.
TURN also lists several issues on which the Commission's adopted decision, D.03-10-088, accepted TURN's recommendations in whole or part. In these instances, claims TURN, its work is compensable. First, on the question of accuracy of the carriers' reported service quality results, the Commission agreed with TURN's concerns that Pacific's elimination of billing calls in its Business Office Answer Time (BOAT)18 statistics part-way through the period analyzed made it impossible to compare Pacific's reported BOAT performance over time.19
Second, the Commission agreed with TURN that General Order (GO) 133-B20 does not require tracking of calls to the telephone company met with a busy signal, or calls the caller did not complete (abandoned calls), thus creating the risk of missing a key indicator of poor customer service.21 The Commission ultimately decided that GO 133-B was an inadequate measuring tool and should be amended.
Third, during the course of the proceeding, ALJ Thomas granted TURN's motion to have Pacific continue reporting certain service quality data required by the FCC that initially were reported only for a limited period. Because of the value of the data, the Commission specifically ratified ALJ Thomas' ruling granting TURN's request.22
Fourth, TURN addressed whether NRF provided incentives for poor service quality. TURN acknowledges that only the PD, and not the Alternate Decision the Commission ultimately adopted, agrees with some of TURN's concerns. Nonetheless, TURN points out that D.03-10-088 analyzes the issue of NRF incentives for service quality as opposed to those that existed under the previous, cost of service, scheme of regulation.23 Thus, although the Commission did not adopt TURN's position on the merits, the Commission did accept TURN's premise that it was appropriate to inquire whether NRF provided perverse incentives to the utility regarding service quality.
Fifth, TURN also cited several other Commission decisions in enforcement proceedings to support its claim that customers experienced diminished service from Pacific after NRF was enacted. The Commission agreed with TURN that such information was relevant to the analysis in this proceeding. Further, the Commission acknowledged TURN's assertion that the pace of meritorious complaints against Pacific increased after 1995, and that at minimum NRF did not prevent these problems from developing.24 The final decision found that these complaints did not raise concerns about the success of NRF in the service quality area, but invited parties to further address the matter in Phase 3B.25
On October 19, 2005, TURN submitted a supplement to its compensation request listing the issues on which it did not prevail either in the PD or the adopted Commission decision. These claims total $16,445.92, and are further explained in the following discussion section.
TURN is clearly entitled to compensation for positions the Commission adopted in its final decision. TURN lists five such issues, as noted above.
The more challenging question relates to TURN's advocacy that produced results in the ALJ's PD, but which the Commission did not adopt in its final decision. There is no question that TURN's analysis contributed substantially to the ALJ's PD. We also agree that the approach in the Commission's adopted decision is different from both the PD and all other parties. This difference introduces an important question: If an intervenor such as TURN proceeds in a manner on which all parties-and the ALJ-agree, is the intervenor entitled to compensation, should the Commission ultimately decide to adopt a different approach?
We have long held that contribution to an ALJ's PD (or to a Commissioner's Alternate Decision not adopted by the Commission) is evidence of a substantial contribution even if the Commission does not adopt the PD's recommendations: "The Commission adopted TURN's position only in part, but the Administrative Law Judge's (ALJ's) PD had recommended TURN's position without reservation. In cases where the Commission does not wholly adopt the customer's position, contribution to an ALJ's PD reinforces a substantial contribution to an order or decision."26
The Commission has also held that if TURN's advocacy "clearly furthered the debate, as evidenced by references to it in the PD, even though the final decision rejected TURN's recommendations," the Commission may find a substantial contribution. For example, in D.96-08-023, the Commission found TURN eligible for all time on issues adopted either by the ALJ or the Commission, where TURN's contribution "furthered the debate":
Further, TURN's positions on the treatment of hazardous wastes in revenue allocation and the level of cost-based interruptible credits were adopted in the ALJ's proposed decision (PD), only to be ultimately rejected by the full Commission. TURN's unique testimony on these issues clearly furthered the debate, as evidenced by references to it in the PD, even though the final decision rejected TURN's recommendations. Moreover, these issues represent a relatively small component of TURN's extensive participation in this proceeding, which covered virtually all marginal cost, revenue allocation, and (for residential and small commercial) rate design issues. As we have confirmed in the past:
"In cases where the Commission does not wholly adopt the customer's position, contribution to an ALJ's proposed decision reinforces a substantial contribution to an order or decision."27
The Commission only denied compensation related to recommendations adopted neither in the PD or the final decision, but awarded compensation where the PD adopted the intervenor's positions.28
Similarly, in D.96-09-024, the Commission found TURN eligible for compensation on issues where only the ALJ or the Commissioner sponsoring an Alternate Decision adopted TURN's positions, and the Commission ultimately rejected those positions: "This reinforcement of TURN's substantial contribution is also applicable in the instant case, since on some issues where TURN's position was ultimately rejected by the Commission, this position was adopted either in the ALJ's proposed decision or the [Commissioner's] Alternate."29
Thus, Commission precedent clearly supports awarding TURN compensation related to positions adopted by the PD even if the Commission rejects those positions. While there is one case suggesting that the degree of divergence between the two versions has bearing on this conclusion,30 the other cases cited above do not make this distinction. While D.96-08-023 noted that the issues on which the PD and the Commission's decision "represent a relatively small component of TURN's extensive participation in this proceeding,"31 the Commission only rejected compensation for time spent on issues where TURN contributed neither to the PD nor the Commission's decision. We already disallow this time in a separate discussion below.
Moreover, in granting TURN compensation for advocacy that contributed to the ALJ's PD, the Commission in D.96-08-023 cited with approval the general principle that "in cases where the Commission does not wholly adopt the customer's position, contribution to an ALJ's proposed decision reinforces a substantial contribution to an order or decision." Finally, nothing in the Commission's findings, conclusions, or order in D.96-08-023 limited an intervenor's award for contributions to a PD only to cases where the PD differs in only minor ways from the Commission decision. Thus, D.96-08-023 does not establish a general principle disallowing full recovery except where the PD and Commission decision differ only in minor ways. Given the unique circumstances of this case, as described herein, TURN should receive compensation for all effort on the service quality issue.
The legislative intent of the intervenor compensation statute supports awarding TURN compensation where it contributed to the PD, the Commission decision, or both. Section 1801.3(b) requires that the provisions of the statute "be administered in a manner that encourages the effective and efficient participation of all groups that have a stake in the public utility regulation process." If an intervenor knows that its compensation award is at risk in the event the Commission proceeds with an approach that differs from that taken at and after hearing, it may choose not to participate at all. Here, the ALJ's PD followed the parties' briefing outline and the parties' analytical approach to the case. The decision the Commission ultimately adopted was based on a statistical analysis the Commission conducted on its own after hearings and briefings were over.
Further, the change between the adopted Commission decision and the ALJ's approach was not attributable to TURN's conduct. All parties who filed briefs on the service quality issue-including Pacific and Verizon-followed the same briefing outline as TURN. Each party discussed and agreed upon the briefing outline beforehand. The ALJ used the same outline in the PD. Thus, all parties proceeded with a similar understanding of how to analyze the evidence.
Of course it is true that individual Commissioners and the Commission as a whole may choose lines of reasoning and analytical perspectives that are partly or entirely unanticipated by the parties. This reality of Commission decision making is one reason why the Commission has generally recognized substantial contribution on the basis of adoption of an intervenor's position in a PD or Commissioner's Alternate Decision, regardless of whether the PD or Alternate is ultimately adopted.
Here, neither TURN nor any of the other parties could have anticipated when making their presentations that the Commission would adopt a different approach. Indeed, in D.04-07-036, the Commission granted partial rehearing of a portion of D.03-10-088, the decision for which TURN seeks compensation here, because the latter decision relied on new evidence and analysis presented after hearings and briefing were over.32 The Commission noted in granting rehearing that, "[t]he proposed alternate decision included results of statistical analyses performed by Commission staff on data that was not introduced into the evidentiary record during the hearing." Noting that in D.03-10-088 we had accepted four new items of evidence into the record without holding evidentiary hearings, we concluded that, "After reconsideration, we agree with applicants that evidentiary hearings are appropriate in this case for the four new items of evidence . . . ."33 Thus, even the Commission agreed that TURN did not have an opportunity to address the Commission's statistical approach until after D.03-10-088 was issued.
In summary, TURN could not have anticipated the Commission's change in approach, and should not be penalized for following the roadmap set out for it during and after hearing. To deny TURN compensation under these special circumstances would discourage intervenor participation, contrary to the express legislative intent.
(3) Intervenor's Efforts Persuade Neither ALJ Nor Commission
In its October 19, 2005, supplement, TURN listed items on which it did not persuade the ALJ, the Assigned Commissioner, or the Commission itself. We disallow compensation for those items, as follows.
Issue |
Amount |
Verizon's TRSAT improved after Pacific-SBC merger decision |
$3,654.65 |
Verizon's BOAT affected by understaffing |
$3,654.65 |
Pacific refused pole test & treat funds to PG&E --cost cutting |
$5,481.9734 |
Incentive to increase revenues led to cutback in free services |
$3,654.65 |
Total disallowance |
$16,445.92 |
In the supplement, TURN claims that it is inappropriate to disallow compensation for the foregoing items. It cites earlier compensation awards in which the Commission granted compensation even where TURN did not prevail because the Commission's deliberations were enhanced by TURN's arguments and analysis.35 TURN therefore claims that it should recover compensation for such time here.
We agree that we have required TURN to present a more granular request for compensation here than we may have in other cases. In its October 19, 2005, supplement, for example, TURN added 11 pages of detailed discussion of sub-issues in each NRF decision to the more than 50 pages of discussion it had already submitted. Nothing in this decision should be construed to require TURN in the future to break down its contribution to a Commission decision into minute sub-issues.
However, unique circumstances were present here. As noted in detail above, the Commission changed direction significantly between the time the ALJs issued their draft decisions and the Commission finalized its work on the decisions. Especially in the area of Pacific's service quality, the PD and final decisions were highly distinguishable. Under these circumstances, we find it was correct for the ALJ to seek supplementation. Moreover, we do not find that TURN should be compensated for issues on which it clearly did not prevail.
Decision 04-02-063 addressed four of 72 issues arising from an audit of Pacific that was overseen by the Commission's Telecommunications Division. These four issues are (1) pensions; (2) post-retirement benefits other than pensions (PBOPs); (3) write-down of plant assets; and (4) income taxes. The remaining 68 issues were addressed in D.04-09-061. TURN addressed the pensions, PBOPs, and plant write-down issues, but not income taxes.
With respect to pensions, TURN contended that the transfer of surplus pension assets to Pacific was inconsistent with Commission precedent and unjustly enriched Pacific by $41 million. The Commission agreed, citing with favor TURN's arguments in explaining the resolution of this issue.36
TURN addressed two PBOP issues. The first concerned Pacific's write-off of its $400 million PBOP regulatory asset in 1998. TURN argued that the write-off exceeded what was allowed by Commission precedent and accounting standards. TURN also questioned the propriety of the write-off in light of Pacific's failure to disclose in 1998 its intent to write off the entire PBOP regulatory asset if the Commission adopted certain courses of action advocated by Pacific.37 The ALJ's PD agreed with TURN, but the Assigned Commissioner's alternate PD adopted by the Commission accepted Pacific's contentions.
The second PBOP issue concerned Pacific's withdrawal of $180 million from the Voluntary Employee Benefit Association (VEBA) Trust No. 1 in December 1999 to reimburse itself for active employees' health care costs that Pacific paid earlier in 1999. The audit concluded that the withdrawal violated D.92-12-015 and, as a result, Pacific should refund $136 million (the intrastate regulated portion of the $180 million) to ratepayers. TURN supported the audit recommendation with arguments about (1) the adverse effect the withdrawal had on ratepayers, and (2) the consistency of the recommendation with D.92-12-015 and D.91-07-006.38 The Commission agreed with TURN's reasoning, but instead of a refund to ratepayers, required Pacific to return $136 million, plus interest, to the VEBA 1 trust.39
Finally, with respect to the plant write-down, TURN supported the audit recommendation that it was inappropriate for Pacific to write down $4.8 billion of plant assets over a six-year period beginning in 1999. TURN argued that Pacific was not authorized by D.98-10-026 to implement the write-down.40 The Commission disagreed, and held that D.98-10-026 did provide Pacific with authority to implement the write-down.41 Thus, TURN did not prevail on this issue. While the Commission agreed with TURN that should an earnings sharing mechanism be reinstated in the future, it would be appropriate to reconsider Pacific's authority under D.98-10-026 to implement plant write-downs, this is at best deferral of the issue.42 In its October 19, 2005, supplement, TURN attributed $22,012.32 to this "depreciation reserve deficiency" issue, and we disallow this amount.
In sum, we find that TURN made a substantial contribution to D.04-02-063 as described above. We disallow $22,012.32 for TURN's work where it did not prevail.
In D.04-07-036, the Commission granted an application for rehearing filed by TURN and ORA regarding certain statistical analysis evidence the Assigned Commissioner admitted into the record after the hearings were concluded. TURN and ORA generally opposed setting aside submission to add such material to the record. TURN argued that if submission were set aside, the Commission should also allow submission of other material, including a statistical analysis covering a different period. The Commission set aside submission and allowed the material in the record requested by the Assigned Commissioner, but not the material TURN requested.
TURN joined with ORA in seeking rehearing on the treatment of this post-hearing evidence. In D.04-07-036, the Commission granted rehearing on several points, including the need for hearings on the four specific items the Assigned Commissioner sought to add to the record, and the opportunity for TURN to offer a different statistical analysis to compare to the analysis performed in preparing the Commissioner's Alternate Decision.
Given our grant of TURN's application for rehearing, we find that TURN made a substantial contribution to D.04-07-036.
In D.04-09-061, the Commission addressed the remaining 68 issues (51 contested) raised in the audit of Pacific's financial results for the period 1997-99. Of the contested issues, the ALJ's PD sustained the audit on 48 and reversed the audit on three. TURN's participation focused on a subset of the 51 contested issues. The PD found in TURN's favor on a majority of the subset issues, the initial Alternate Decision did so on some, and the final decision adopted a smaller number of TURN's recommendations. However, in many instances the Commission reached TURN's proposed result, but did so based on a different analysis (while acknowledging and discussing TURN's approach). In some instances, the Commission discussed TURN's analysis, but came out the other way. And in many instances, either the PD or the original Alternate Decision adopted TURN's approach. In all of these cases, we find TURN eligible for compensation, as discussed below.
Where the final decision adopted TURN's position, TURN is clearly entitled to compensation. For example, the audit questioned the allocation from SBC (Pacific's parent company) to Pacific of certain legal fees having no apparent bearing on regulated activities. The Commission agreed that these expenses should be disallowed based largely on TURN's arguments regarding the company's failure to meet its own standard.43
In other instances, the final decision adopted TURN's proposed outcome, but used different reasoning. In these situations, TURN's reasoning complemented or supplemented the Commission's analysis. For example, the Commission denied Pacific's request to recover the full cost of the audit from its customers, estimated at over $2 million. This was the same outcome TURN advocated, but the Commission used different reasoning. TURN focused on how audits are a part of doing business for a company such as Pacific, and argued that this made the associated costs ineligible for exogenous cost recovery. The Commission denied recovery based largely on the utility's failure to cooperate sufficiently with the audit.44
With regard to the contingent liability issue, the Commission adopted TURN's proposed outcome by denying Pacific recovery, but rejected TURN's analysis. The auditors recommended a downward expense adjustment for contingent liabilities associated with anticipated expenses related to lawsuits and regulatory proceedings, basing their recommendation largely on Pacific's refusal to disclose its reasoning behind the accruals due to the utility's concerns regarding the attorney-client privilege. The PD adopted TURN's claims. While the final decision ultimately found that the privilege applied, it still reduced the contingent liability accruals as TURN had requested since Pacific's failure to provide the requested information left the Commission unable to verify the accuracy of the claimed amounts.45
Similarly, a key issue was whether audit adjustments that would not affect revenue sharing when viewed in isolation were "material" for purposes of the audit. Both the PD and Alternate Decision adopted the principle advocated by TURN that when revenue sharing is in effect, a reduction in the amount of net revenues shared with ratepayers constitutes a form of economic harm. Applying that principle, the PD and the Alternate Decision agreed with TURN that the cumulative impact of a number of small adjustments made each of those adjustments "material" even if it might not have been if viewed in isolation. The final decision largely eliminated all discussion on this issue, but retained the principle when it left to ORA the question of the materiality threshold scope for the next audit.46
As is the case with D.03-10-088, TURN also claims it is entitled to compensation because the PD and the original version of the Alternate Decision accepted TURN's analysis and recommendations. For example, TURN focused on the appropriateness of regulatory asset treatment for two categories of costs-local number portability (LNP) and local competition implementation costs. The PD accepted TURN's analysis of whether and when Pacific should have established a regulatory asset. While the final decision opted for Pacific's approach on LNP, it adopted TURN's position on a related issue-jurisdictional separation. Similarly, with regard to several other issues-cash working capital, time reporting, and transfer of Pacific's customer database to affiliates-the PD largely tracked the evidence TURN developed in hearings, but the final decision disagreed.
In its supplement dated October 19, 2005, TURN listed the following issues on which it did not prevail in D.04-09-061:
Issue |
TURN pleadings |
Amount |
Affiliate Transactions - ASI |
OB 37-38, RB 31-33 |
$5,142.02 |
Recovery of Audit Costs |
OB 43-44, RB 37-38 |
$4,113.61 |
Total disallowance |
$9,255.63 | |
We disallow recovery of these amounts.
For the reasons set forth above with regard to D.03-10-088, we find that TURN contributed to D.04-09-061 in all but a few instances itemized above. The decision frequently adopts TURN's position or approves TURN's analysis. Where it does not adopt TURN's position, TURN's comprehensive participation in the hearings assisted the Commission in developing the record or framing the issues, and thus contributed to the PD and to a lesser extent the final decision. Overall, we find that TURN made a substantial contribution to D.04-09-061. For the reasons described in connection with D.03-10-088, we disallow recovery for the issues on which TURN did not prevail, as noted above. These items total $9,255.63.
6 D.98-04-059, 79 CPUC 2d 628, 653 (1998).
7 See D.03-12-019, discussing D.89-03-063 (31 CPUC 2d 402 (1989)) (awarding San Luis Obispo Mothers for Peace and Rochelle Becker compensation in the Diablo Canyon Rate Case because their arguments, although ultimately unsuccessful, forced the utility to thoroughly document the safety issues involved); D.03-12-035 (awarding compensation where Commission did not adopt intervenor's position, but where intervenor's participation was reflected in alternate decisions).
8 D.02-10-020, mimeo., p. 6.
9 Id., mimeo., pp. 6, 7 and 13. D.02-10-020 adopted the stipulation except on procedural issues. Specifically, D.02-10-020 moved the issue of service quality monitoring reports to Phase 3 of the proceeding, rather than Phase 2 as suggested in the stipulation.
10 D.02-10-020, mimeo., p. 28.
11 Id. at 18-19 and Conclusion of Law (COL) 8.
12 Id. at 30-31.
13 Id. at 34-35.
14 Id. at 51.
15 Id. at 53 and COL 27.
16 Id. at 54-58 and COL 41.
17 Id. at 162.
18 BOAT results are an important indication of service quality, because they measure how long it takes customers to reach a service representative when seeking telephone service.
19 D.03-10-088, mimeo., pp. 48-50.
20 GO 133-B tracks several measures of telephone company service quality.
21 D.03-10-088, mimeo., p. 18.
22 Id. at 121.
23 Id. at 177-180.
24 Id. at 152-58.
25 The Commission has since decided not to pursue Phase 3B (D.06-05-024), but instead to examine its regulation of the telecommunications industry in another proceeding, R.05-04-005.
26 D.92-08-030, mimeo., p. 4, 45 CPUC 2d 273, 1992 Cal. PUC LEXIS 555, at *4.
27 D.96-08-023, mimeo., p. 4, 67 CPUC 2d 286, 1996 Cal. PUC LEXIS 843, at *5, citing D.95-05-003, mimeo., p. 6 and D.92-08-030, mimeo., p. 4.
28 1996 Cal. PUC LEXIS 843, at *6.
29 D.96-09-024, mimeo., p. 19, 67 CPUC 2d 678, 1996 Cal. PUC LEXIS 891, at *19; see also D.99-11-006, mimeo., pp. 9-10, 1999 Cal. PUC LEXIS 657, at *14 (an intervenor may make a substantial contribution when an ALJ's proposed decision adopts the party's position, but the Commission declines to adopt the party's position in full in its final decision; citing D.99-04-004 and D.96-08-023). Even where the Commission does not consider an issue the ALJ's proposed decision adopts, rendering the issue moot, the Commission has awarded compensation due to the contribution to the ALJ's decision (or a Commissioner's alternate decision). D.01-06-063, mimeo., pp. 6-7, 2001 Cal. PUC LEXIS 610, at *8.
30 See D.96-08-023, discussed on the previous page.
31 1996 Cal. PUC LEXIS 843, at *5.
32 We discuss D.04-07-036 in more detail below.
33 D.04-07-036, mimeo., p. 7, 2004 Cal. PUC LEXIS 337, at *12-13.
34 None of the decisions addressed this issue, and we therefore disallow compensation for it.
35 TURN cites D.03-04-011, mimeo., p. 16, and D.02-06-070, 2002 Cal. PUC LEXIS 375, at *29-31.
36 D.04-02-063, mimeo., pp. 23-27 and COLs 11 and 12.
37 Id. at 38-40.
38 Id. at 60-61.
39 Id. at 64-66.
40 Id. at 87-89.
41 Id. at 91.
42 Id. at 95.
43 Id. at 91.
44 Id. at 135.
45 Id. at 22.
46 D.04-09-061, mimeo., p. 132.
