5. Reasonableness of Requested Compensation

TURN requests $48,255.21 for its participation in this proceeding, as follows:

Attorney Fees

Robert Finkelstein 70.0 hours @ $265 (1999) $ 18,550.00

0.5 hours @ $132.50(comp.) $ 66.25

0.75 hours @ $280 (2000) $ 210.00

43.75 hours @ $395 (2004) $ 17,281.25

8.5 hours @ 197.50 (comp.) $ 1,678.75

Subtotal $ 37,786.25

Expert Witness Costs - JBS Energy, Inc.

William Marcus 18.0 hours @ $150 $ 2,700.00

Jeff Nahigian 53.5 hours @ $95 $ 5,082.50

Gayatri Schilberg 15.38 hours @ $110 $ 1,691.80

JBS Expenses $ 10.50

Subtotal $ 9,484.80

Other Reasonable Costs

Photocopying expense $ 586.80

Postage/FedEx costs $ 53.22

LEXIS Research costs $ 344.14

Subtotal $ 984.16

TOTAL $ 48,255.21

The components of this request must constitute reasonable fees and costs of the customer's preparation for and participation in a proceeding that resulted in a substantial contribution. Thus, only those fees and costs associated with the customer's work that the Commission concludes made a substantial contribution are reasonable and eligible for compensation.

To assist us in determining the reasonableness of the requested compensation, D.98-04-059 directed customers to demonstrate productivity by assigning a reasonable dollar value to the benefits of their participation to ratepayers. The costs of a customer's participation should bear a reasonable relationship to the benefits realized through their participation. This showing assists us in determining the overall reasonableness of the request.

In this proceeding TURN's work activities all addressed a single overriding issue, whether the disputed expenditures met the standards for recovery under Section 368(e). TURN provided the following quantification:

"This proceeding is of the type for which it is possible to specifically quantify the results of TURN's participation. While the exact amount of benefits will depend on the outcome of the pole test and treat cost reimbursement and the amount of cost recovery achieved in the CEMA application called for in the decision, the reduction in the authorized cost recovery directly attributable to TURN's efforts is at least approximately $4.2 million.¹⁰ The total amount requested for intervenor compensation at this time is less than 2% of this figure. TURN submits that the Commission should have no hesitation finding our participation "productive" given that the benefits are more than 50 times the amount spent to achieve those benefits." (TURN Request: p. 6.)

Thus, we may find that TURN's efforts have been productive.

Next, we assess whether the hours claimed for the customer's efforts that resulted in substantial contributions to Commission decisions are reasonable.

TURN documented its claimed hours by presenting a daily breakdown of the hours of its attorney and consultants, accompanied by a brief description of each activity.¹¹ The hourly breakdown reasonably supports the claim for total hours. Since we found that TURN's efforts made a substantial contribution to the final decision as well as the ALJ proposed decision and Brown alternate decision, we need not exclude anything from TURN's award compensation.

Finally, in determining compensation, we take into consideration the market rates for similar services from comparably qualified persons.

TURN separated the hours associated with preparation of this compensation request and requests compensation at half the usual hourly rate for this time. TURN requests an hourly rate of $265 for work performed by Finkelstein in 1999, $280 for work performed in 2000, and $395 for work performed in 2004. For the 1999 and 2000 hour rates, each figure is the hourly rate that the Commission has previously approved for work in that year.¹² For the hours that Finkelstein devoted to this proceeding in 2004, TURN proposes to increase the approved 2003 rate of $365 by 8%, consistent with Resolution ALJ-184, issued at the Commission's August 19, 2004 meeting.¹³ We find these rates reasonable.

TURN requests hourly rates of $150, $110, and $95 for the work performed by JBS Energy firm members Marcus, Schilberg, and Nahigian, respectively, during 1999. The Commission has previously approved these rates for these firm members for their work in other Commission proceedings during 1999.¹⁴

The itemized direct expenses submitted by TURN include costs for photocopying, postage, and research and total $984.16. The cost breakdown included with the request shows the miscellaneous expenses to be commensurate with the work performed. We find these costs reasonable.

¹⁰ As footnoted by TURN: "This figure includes $499,295 for automatic meter reading costs, $929,000 for vehicles used for metering, $2.06 million for electric industry restructuring costs (all from the decision) and $711,000 (from PG&E's rebuttal testimony)."

¹¹ Appendices to the Request.

¹² See, D.00-02-038 (in A.98-05-004), p. 16 for the 1999 rate, and D.00-11-002 (in A.99-01-016), pp. 6-7 for the 2000 rate.

¹³ The Commission approved an hourly rate of $365 for Finkelstein's 2003 work in D.03-08-041 (in R.92-03-050), p. 7. An 8% increase to Finkelstein's 2003 hourly rate of $365 yields an hourly rate of $394.20. TURN rounded that figure to the nearest $5 increment.

¹⁴ The Commission approved an hourly rate of $150 for Marcus D.00-02-008 (in A.97-06-0121 - Edison OOR sharing mechanism) and D.00-05-006 (in A.99-03-020 - Edison mid-term PBR review). Schilberg's and Nahigian's 1999 rates were also approved in D.00-05-006. TURN is also using the 1999 rate for the small amount of time JBS employees devoted to this proceeding in 2000 or 2004.