5. Substantial Contribution to Resolution of Issues

A party may make a substantial contribution to a decision in one of several ways.¹ It may offer a factual or legal contention upon which the Commission relied in making a decision,² or it may advance a specific policy or procedural recommendation that the Administrative Law Judge (ALJ) or Commission adopted.³ A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.⁴

TURN believes it has substantially contributed to D.99-11-051, D.00-03-042, and D.00-11-042 in eight areas. First, TURN supported updating the costs of the services at issue in this proceeding. Second, TURN opposed Pacific's proposed ceiling price of $1.10 for DA. Third, TURN opposed Pacific's requested tariff price for DA and primary rationale that a 46% markup over total service long run incremental cost (TSLRIC) was necessary. Fourth, TURN pointed out Pacific's methodological error in its TSLRIC cost estimates for both BLV and EI. Fifth, TURN supported a TSLRIC markup limited to between 13 and 22% for BLV and EI. Sixth, TURN contended that Pacific failed to show that BLV and EI are subject to price-constraining competition. Seventh, TURN prevailed on its motion to make rates subject to refund while the Commission considered TURN's application for rehearing. Eighth, the rehearing decision modified the earlier decision in response to TURN's arguments.

TURN reduces its claim for compensation to D.99-11-051 and D.00-03-042 by 10%, because it was not successful with respect to certain issues. TURN reduces its claim for compensation to D.00-11-042 by 50%, because it had limited success in its application for rehearing. TURN's proposed reductions apply only to its attorneys' time, not to its consultants' time.

Pacific states TURN's request should be denied or, at a minimum, substantially reduced. Pacific states TURN's positions were that 1) Pacific should be precluded entirely by NRF rules from proceeding with its application; 2) the price of DA service should remain at $0.25; 3) the price ceiling of DA service should remain at $0.25; 4) the costs of DA should be re-examined; 5) any revenues received by Pacific should be rebalanced against other services; and 6) the matter should be reheard. Pacific states the Commission rejected all but TURN's position on the price ceiling issue. Pacific also notes that the issues TURN identifies as issues where TURN made a substantial contribution are ancillary issues for which compensation should be limited. Pacific proposes that TURN not receive compensation for the drafting, filing and mailing of a late-filed pleading. Pacific also wants the Commission to offset any award by the amount of the fundraising TURN collected from its members and the public in connection with this proceeding. Pacific opposes TURN's compensation claim for the work of its consultants, because those consultants worked primarily on costing issues. Pacific also opposes the increase in hourly rates for those consultants, because TURN provides no industry comparisons to justify the increases.

TURN disagrees with Pacific's characterization of TURN's major issues. TURN also disagrees with Pacific's recategorization of TURN's issues as ancillary. TURN concurs with Pacific that its award should be reduced by $390.04 (2 hours for Paul Stein and $50.04 for postage and copying) for the preparation of the motion for acceptance of a late-filed pleading. TURN notes that Pacific fails to cite to the intervenor compensation statute or a prior Commission decision to support the requested offset of any award. TURN disagrees that its consultants only worked on a re-examination of Pacific's cost data. TURN states the requested hourly rate increase for its consultants is to cover the impact of inflation on the hourly rates of witnesses who are familiar to the Commission.

We agree that TURN made substantial contributions to D.99-11-051. However, as Pacific notes, TURN did not prevail on all of the issues it advanced. Pacific incorrectly characterizes TURN's contribution as predominantly on ancillary issues. TURN's participation did impact our decision on DA, BLV and EI issues. TURN's concern about Pacific's cost studies prompted Pacific to conduct a re-look, which we considered in reaching our decision. TURN did not prevail on all of the issues it advanced concerning DA, including its opposition to the reduction in call allowances. We also rejected TURN's arguments concerning revenue neutrality and rate re-balancing.

TURN also substantially contributed to D.00-03-042, which we issued in conjunction with TURN's application for rehearing. TURN prevailed on its motion to make rates subject to refund pending disposition of its application for rehearing. TURN substantially contributed to D.00-11-042. TURN admits it had limited success in its application for rehearing. In fact, TURN did not prevail on any issue it raised in the application for rehearing. Instead, TURN's application prompted us to modify, clarify or add conclusions to support our decision. It is in this sense that TURN substantially contributed to the decision.

We find that TURN substantially contributed to D.99-11-051, D.00-03-042, and D.00-11-042. We concur with TURN and Pacific that TURN's claim should be reduced. The specific reductions we adopt are discussed below in Section 6.2. We also discuss TURN's proposed hourly rates for its attorneys and consultants in Section 6.3.