5. The Reasonableness of Requested Compensation

TURN requests compensation of $62,126.75 as follows:

Advocate's Fees

Paul Stein

Thomas J. Long

1997 16.50 hours @ $250/hour = $ 4,125.00

1998 39.00 hours @ $260/hour = $10,140.00

Consultant's Fees

Gayatri M. Schilberg

1999 27 hours @ $110/hour = $ 2,970.00

Expenses

Latino Issues/Greenlining request compensation of $94,466 as follows:

Advocate's Fees

Susan Brown 217.05 hours @ $275/hour = $ 59,414

Robert Gnaizda 21.85 hours @ $375/hour = $ 8,194

Chris Witteman 40.1 hours @ $250/hour = $ 10,025

Expert's Fees

John Gamboa 2.2 hours @ $250/hour = $ 550

Jose Hernandez 139.5 hours @ $105/hour = $14,648

Expenses

Latino Issues/Greenlining TOTAL = $94,466

5.1 Overall Benefits of Participation

In D.98-04-059, the Commission adopted a requirement that a customer must demonstrate that its participation was "productive," as that term is used in § 1801.3, where the Legislature gave the Commission guidance on program administration. (See D.98-04-059, mimeo. at 31-33, and Finding of Fact 42). In that decision we discuss the requirement that participation must be productive in the sense that the costs of participation should bear a reasonable relationship to the benefits realized through such participation. Customers are directed to demonstrate productivity by assigning a reasonable dollar value to the benefits of their participation to ratepayers. This exercise assists us in determining the reasonableness of the request and in avoiding unproductive participation.

TURN stated that its contributions were not only substantial but also distinct from the issues and arguments raised by other intervenors. TURN also stated that the benefits to ratepayers of its participation exceeded the costs it claimed. We agree. This proceeding included a variety of consumer protection issues, including the drafting of new rules in response to recent legislation as well as the revision of policies that had become out-of-date. TURN's legal expertise, as well as practical knowledge of consumer interests, assisted the Commission in arriving at its conclusions.

Latino Issues/Greenlining stated that without their participation, the Commission would not have received direct evidence from language minority customers about the effect of the local disconnection policy on them, or have had low-income consumers' perspective on the need for education about their rights. We acknowledge Latino Issues/Greenlining's unique role in this proceeding in advancing the interests of its client groups.

Quantifying the benefits of participation is often difficult in rulemakings such as this one, so we must rely on more qualitative standards in such proceedings. Here, given the significance of the rules and policies we adopted, and their impact on residential customers, we are satisfied that the compensation we award today is for productive participation, within the meaning of the statute.

5.2 Hours Claimed

TURN documented the claimed hours by presenting a daily breakdown of hours for each advocate and consultant with a brief description of each activity. The hourly breakdown presented by TURN reasonably supports its claim for total hours.

Latino Issues/Greenlining presented a similar daily breakdown of hours for each advocate and expert with a brief description of each activity. In most cases, the hourly breakdown presented reasonably supports the claimed hours.

The hours allocated to preparation of the request for intervenor compensation fees, however, are unreasonable. The request presented by Latino Issues/Greenlining showed one total number of hours for each advocate or expert multiplied by an hourly fee. This breakdown is inadequate for three reasons. First, the hours were not broken down by years. The Commission's longstanding practice is to apply the annual hourly rate approved for a particular advocate or expert for work performed in a particular calendar year. An aggregate total for a multi-year proceeding, such as this one, is improper. To obtain a breakdown of hours by years requires our staff to do work that should have been done by the claimant. Second, the annual hourly rates applied here by Latino Issues/Greenlining previously had been rejected by this Commission. Again, to properly calculate the award our staff had to perform work that should have been done by the claimant. Third, the hours attributed to preparing this request were not separately tabulated and charged at half the authorized hourly rate. Our staff performed this task, which was properly Latino Issues/Greenlining's responsibility. For these three reasons, all time allocated to preparing the intervenor compensation request6 has been removed from Latino Issues/Greenlining's original tabulation of hours, and we will not award any compensation for this time.

5.3 Hourly Rates

TURN proposes new hourly rates of $190 and $200 for Stein (for 1999 and 2000). TURN provides market rates and other information, previously submitted, to justify the request. The last approved hourly rate for Stein was $170 for 1998, adopted in D.98-08-016. Since 1998, Stein has represented TURN in a number of energy and telecommunications proceedings before the Commission. Based upon the information TURN has provided, it is reasonable to increase Stein's rates to the level requested by TURN.

The hourly rates for Long, $250/hour in 1997 and $260/hour for 1998, were previously approved by the Commission in D.98-09-032 (for 1997) and D.99-07-045 (for 1998).

TURN comments that the hourly rate for Schilberg, its consulting economist, was approved by the Commission in D.00-05-006 for work performed in the energy field, and that the same rate should be used here.

We find TURN's requested hourly rates to be reasonable and consistent with our past treatment of attorney and expert fees for comparable work.

For work performed in 1997 and 1998, Latino Issues/Greenlining uses hourly rates other than those that this Commission has previously approved for their attorneys and experts in these timeframes. Instead, for work performed in 1997 and 1998, Latino Issues/Greenlining seeks compensation at rates they propose the Commission adopt for work performed in 1999. This request is troubling because it expressly disregards prior Commission decisions under which a rate adopted for the work of a given person in a particular year is to be used in all decisions for that person's work done in that same year. Such disregard is blatant because Latino Issues/Greenlining acknowledges, in footnote 31 of its request, past hourly rates for work performed in 1997 and 1998 by reference to specific Commission decisions and then declares that these are "rates erroneously adopted by the Commission in the past." Latino Issues/Greenlining knows or should know that the proper avenue for addressing legal error is to file an application for rehearing, rather than to engage in such collateral attack on prior Commission decisions.

The compensation request of Latino Issues/Greenlining is also deficient in that it does not break down the number of hours worked by year. As indicated above, Latino Issues/Greenlining billed all hours at their proposed rates for 1999. From the detailed records provided, however, we have recalculated the number of hours worked by year. When applicable, we also use hourly rates adopted in prior Commission decisions. For Witteman, we use the same hourly rates as for TURN's Stein, given their comparable experience and skill level. We follow D.00-04-011 and award Hernandez $75 an hour. For work performed in 1999 we will use $250 as the hourly rate for Brown and $270 for Gnaizda. For work performed in 2000, we will increase the hourly rates for Brown and Gnaizda by $10 each to $260 and $280. We do so reluctantly given the express disregard of prior Commission decisions by senior attorneys Brown and Gnaizda. These increases are made in light of market rates paid to other attorneys. As corrected, Latino Issues/Greenlining's hourly rates are reasonable.

5.4 Other Costs

"Other costs" typically include copying, postage, and fax, phone or internet usage. TURN and Latino Issues/Greenlining have documented these costs adequately. They are substantial but still reasonable given the size of the service list and the length of this proceeding.

5 Preparation of compensation request at one half usual rate. 6 Susan Brown attributed 31 billed hours to the fee request. These hours have been removed from total hours allowed in Section 7 below.

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