VII. Discussion

The question presented in this case is whether PG&E violated any law, order, or rule of the Commission as defined in Pub. Util. Code § 1702. We find a number of such violations.

PG&E misreads and misapplies its tariffs in attempting to use the provisions of Tariff Rule 17 in this case. As discussed above, the record is clear that PG&E's meter at MRCH was not malfunctioning or defective. Thus, Rule 17 is not applicable to this case.

Rule 17.2 applies as PG&E is here alleging that MRCH used PG&E's service without compensation for reasons other than a defective or malfunctioning meter. That rule requires that on July 22, 1996, when PG&E determined that unauthorized use was occurring by MRCH, it shall promptly conduct an investigation, collect and preserve evidence in the matter, test the meter, obtain connected load information, advise the customer being billed of the utility claim, and give the customer an opportunity to respond.

PG&E violated Rule 17.2 in that, while it made its own investigation without the knowledge of the customer, it failed to observe any other of the requirements of the rule. These violations resulted in PG&E:

a. Presenting no estimate of its claimed unauthorized use based upon connected load data.

b. Failing to account in its estimate of underbilling for probable intermittent registration of use during the period at issue.

c. Depriving complainant of its right to respond to PG&E's claim by discarding the physical evidence which would have proved or disproved complainant's theory of the case as to when, if ever, PG&E's meter connections were properly in place.

PG&E's actions in this case result in the shifting of the burden of producing evidence to the utility to support the basis for the backbilling to the customer and to support the reasonableness of its estimate of the amount due.

With respect to the basis for backbilling, PG&E offers the uncorroborated testimony of its meter technician that PG&E's adapter or wires were found broken or disconnected. The physical evidence required by Rule 17.2 to be preserved was not preserved. Accordingly, the burden of proof has not been met.

As to the reasonableness of its estimate of the amount due, PG&E offers estimates based upon the customer's billing history alone. An estimate of usage based upon connected load, as specified in Rule 17.2, was not made. Intermittent registration of usage was not considered. PG&E has not satisfied its burden of proof. Given PG&E's procedural irregularities and failure to establish a proper basis for backbilling, the complaint should be granted.