X. Appeals and Motion to Set Aside Submission

The Presiding Officer's Decision (POD) in this case was mailed on February 20, 2007. On March 22, 2007, PG&E, CPSD and SSJID each filed an appeal. On April 6, 2007, PG&E, CPSD and TURN each filed a response to the various appeals.

PG&E asserts that the POD legally errs by holding PG&E's shareholders responsible for the costs of the refunds without citing a Commission precedent, tariff rule, or Code section as legal foundation for doing so. To the contrary, the POD identifies Section 734 as the legal authority, discusses the policy rationale supporting its implementation of that authority, and explains why PG&E's proffered authority to the contrary is not on point.

PG&E argues that, because shareholder funding of refunds creates an incentive for PG&E to comply with its tariffs, shareholder funding is therefore a fine that must be analyzed under applicable Commission precedent. The POD already considers and appropriately rejects PG&E's argument that, if they provide an incentive for the utility to comply with the law, utility refunds must be considered and analyzed as penalties or fines.

PG&E and CPSD both argue that the POD errs by finding, on the one hand, that shareholder funding of refunds is necessary in order to create an incentive for utilities to comply with their tariffs, while finding, on the other hand, that a penalty is not necessary to deter future violations of Rule 17.1. (CPSD makes the argument in support of the imposition of a penalty, while PG&E makes the argument in support of excusing shareholders from funding refunds.) Both CPSD and PG&E confuse refunds with penalties. The POD appropriately distinguishes between the two and applies the appropriate legal analysis to each.

PG&E argues the POD is inequitable because it punishes PG&E for implementing CorDaptix which, as the POD acknowledges, unavoidably caused an increase in the number of delayed and estimated bills. Both the POD and the Commission reject PG&E's argument.

CPSD argues that the POD legally errs in applying a statute of limitations to this enforcement action. The POD considers and rejects CPSD's legal arguments, but the Commission's resolution of the issue differs, as discussed in Section XI.

CPSD argues that the POD legally errs by giving insufficient weight to the facts that exacerbate the wrongdoing, thereby concluding that no penalty is warranted. CPSD's argument does not identify any legal error. The Commission has broad discretion in administering penalties, and the POD does not abuse this discretion.

CPSD argues that the POD legally errs by holding that the lack of intentional conduct "completely mitigates" the need for penalties. CPSD misconstrues the POD, which identifies PG&E's lack of intentional conduct as one of several facts that mitigate the wrongdoing and are weighed in assessing whether or not penalties are appropriate in this case.

CPSD argues that the POD incorrectly states that PG&E has made reasonable efforts to cease the violations because PG&E did not cease the violations until the Executive Director ordered it to do so. These facts are not contradictory. CPSD argues that there is no record support for the POD's statement that PG&E has made reasonable efforts to refund past illegal charges, but muses that the POD may be referring to refunds issued after the Executive Director's October 12, 2004 letter (which facts are contained in the record). Indeed, the POD explicitly refers to these refunds and their context as the basis for this statement.

CPSD argues that the POD errs by finding that the advice given by a Commission decision has no greater legal significance than the advice given by a CAB representative. The POD does not make this suggestion, and CPSD's argument rests on its unwarranted misconstruction of the POD.

CPSD acknowledges that the Commission has discretion in determining whether to order interest payments on refunds, but argues that PG&E should pay interest and that the POD legally errs in misapplying Zacky Farms and TURN v. Pacific Bell. The POD already considers and appropriately rejects CPSD's arguments.

SSJID argues that the POD errs by failing to find that the undisputed record shows that PG&E did not violate Rule 9 by failing to regularly read SSJID's meters. The POD determines that, although the undisputed record shows that PG&E did not regularly read SSJID's meters, it is inconclusive with respect to whether the missed meter reads were due to factors within PG&E's control and, therefore, in violation of Rule 9. The Commission reaches a different result, as noted in Section XI.

SSJID moves to set aside submission of the record to take evidence that PG&E disconnected electric service to one of SSJID's flood gates because PG&E's billing system erroneously did not show a customer of record for the meter. SSJID argues that evidence of this incident is material to the Commission's decision in this proceeding because it demonstrates that PG&E's meter reading and billing practices continue to be deficient and warrant a penalty. The POD would deny SSJID's motion, on the grounds that the evidence that SSJID proposes to offer is irrelevant to PG&E's practice of backbilling beyond Rule 17.1 time limits, which is the focus of this decision. Furthermore, the POD determines that even assuming that this incident is proved to be a violation of Rule 9, it does not prove PG&E's prior missed reads of SSJID's meters, or any other missed meter reads, to be Rule 9 violations. The POD determines that reopening the record is not warranted under these circumstances. The Commission reverses the POD's treatment of these issues