XI. Assignment of Proceeding

Michael R. Peevey is the Assigned Commissioner and Janet A. Econome is the assigned ALJ in this proceeding.

Findings of Fact

1. When the WMDVBE program was established, the Commission emphasized that the permitted exclusions should continue so long as they are truly needed, and required the utilities to justify them annually.

2. Continuing exclusions will not assist in our dual goals of eliminating them, or in standardizing the WMDVBE reports.

3. We clarify the proposed § 9.1.9 so that utilities understand they should retain all documents or data they rely on in preparing their WMDVBE reports.

4. Clarifying the length of time a utility should retain documents or data relied upon in preparing the WMDVBE reports and, generally, conforming the time limit to the utilities' various document retention policies is reasonable. However, at a minimum, utilities should retain this information for three years.

5. In order to achieve greater uniformity in WMDVBE reporting, it is essential for the utilities to report using the same categories with agreed-upon definitions.

Conclusions of Law

1. The amendments to GO 156 as set forth in Appendix A should be adopted.

2. CPID should hold a workshop commencing no later than 90 days from the mailing of this decision, or as further directed by the Assigned Commissioner or ALJ upon the request of CPID. The purpose of this workshop is to develop uniform reporting categories for all utilities to employ in their WMDVBE reports, and, if appropriate, additional industry-specific reporting categories. Additionally, the workshop should develop a detailed definition of each of the categories.

3. No later than 30 days after the conclusion of the workshop, or as further directed by the Assigned Commissioner or ALJ upon the request of CPID, CPID should deliver a workshop report to the Commission President and Executive Director, and should serve this report on all Commissioners, the Chief ALJ, the ALJ assigned to this proceeding, and the workshop participants.

4. CPID should monitor the annual WMDVBE reports filed pursuant to GO 156 for 2003, and forward a list of utilities who do not comply with GO 156 to the Executive Director for the Commission to evaluate whether to institute an enforcement proceeding against these utilities.

5. Section 8283 subjects all electric, gas, and telephone utilities with gross annual revenues exceeding $25,000,000 and their Commission-regulated subsidiaries and affiliates to GO 156 without exception.

6. This decision should be effective immediately in order to amend GO 156 without further delay.

ORDER

IT IS ORDERED that:

1. General Order (GO) 156 is amended as set forth in Appendix A.

2. The Commission's Communications and Public Information Division (CPID) will hold a workshop commencing no later than 90 days from the mailing of this decision, or as further directed by the Assigned Commissioner or Administrative Law Judge (ALJ) upon the request of CPID for the purposes set forth in this decision.

3. No later than 30 days after the conclusion of the workshop, or as further directed by the Assigned Commissioner or ALJ upon the request of CPID, CPID will deliver a workshop report to the Commission President and Executive Director, and will serve this report on all Commissioners, the Chief ALJ, the ALJ assigned to this proceeding, and the workshop participants.

4. CPID will monitor the annual women, minority, and disabled business enterprises (WMDVBE) reports filed pursuant to GO 156 for 2003, and forward a list of utilities who do not comply with GO 156 to the Executive Director for the Commission to evaluate whether to institute an enforcement proceeding against these utilities.

5. The motions of the utilities set forth in Appendix for an extension of time to file their reports in response to this rulemaking are granted.

6. This proceeding is closed.

This order is effective today.

Dated _____________________, at San Francisco, California.

1. Proposed Amendments to General Order (GO) 156, § 8.5 [eliminating the "excluded category" for WMDVBE reporting]. Other Rules affected by this change are GO 156, §§ 1.3.14; 6.3.3; 8.8, 8.10.4, 9.1.7, 9.1.9, and 10.1.4 as set forth below.

Existing Rule, GO 156, § 8.5

A utility may create an "excluded category" of products or services where it is clearly evident that WMDVBEs do not provide a specific product or service, or that sole source procurement is the only available procurement method. The utility shall bear the burden of demonstrating the unavailability of WMDVBEs capable of supplying such products or services. Because there may in the future be WMDVBEs capable of supplying products or services in an excluded category, the utility must justify in its annual report the continued existence of is excluded category. Excluded categories must be noted in the utility's annual report to the Commission on WMDVBE program progress and future plans.

GO 156, § 8.5 as amended and adopted by this decision

A utility may no longer create an "excluded category" of products and services for compliance with this General Order. However, for each major category of products and services where the minimum long-term goals required by Section 8.2 are not met, the utility shall include a comprehensive discussion and detailed description of any efforts made to find or recruit WMDVBE suppliers of products or services in areas where WMDVBE suppliers are currently unavailable, or where sole source procurement is currently the only available procurement method. The utility may also explain in detail in its annual report how its ability to meet its WMDVBE goals are affected because WMDVBEs capable of supplying certain products and services are unavailable, or because sole source procurement is the only available procurement method. In this explanatory section, the utility may also include data with exclusions pursuant to former Section 8.5, if such data is necessary to more fully explain why it has not been able to eliminate exclusions, provided that the utility's report must contain the data without exclusions in the first instance.

* * * * * * *

Existing Rule, GO 156, § 1.3.14

"Excluded category" means a category of products or services which may be removed from the dollar base used to establish goals, pursuant to Section 8.5 of this General Order, because of the established unavailability of WMDVBEs capable of supplying those products or services.

GO 156, Rule 1.3.14, as amended and adopted by this decision

Deleted per Decision ___________ [the final decision issued in this rulemaking.]

* * * * * * *

Existing Rule, GO 156, § 6.3.3

The subcontracting program need not be applied to the procurement of products manufactured for general consumption, such as paper, pens, and the like, or to the procurement of products and services in excluded categories.

GO 156, § 6.3.3, as amended and adopted by this decision

The subcontracting program need not be applied to the procurement of products manufactured for general consumption, such as paper, pens, and the like.

* * * * * * *

Existing Rule, GO 156, § 8.8

Overall program goals shall be expressed as a percentage of total dollars awarded to outside vendors in all categories of products and services purchased by a utility other than products and services which fall within an excluded category established by the utility pursuant to Section 8.5, or which are included in a fuel procurement base established pursuant to Section 8.10.

GO 156, § 8.8, as amended and adopted by this decision

Overall program goals shall be expressed as a percentage of total dollars awarded to outside vendors in all categories of products and services purchased by a utility other than products and services which are included in a fuel procurement base established pursuant to Section 8.10.

* * * * * * *

Existing Rule, GO 156, § 8.10.4

Utilities may exclude purchases of fuel other than domestic onshore natural gas if such fuel qualifies for an exclusion under Section 8.5 and if the utility plans for and reports on progress in increasing the procurement of such fuels from WMDVBEs.

GO 156, § 8.10.4, as amended and adopted by this decision

Delete per Decision _______________ [the final decision issued in this rulemaking.]

* * * * * * *

Existing Rule, GO 156, § 9.1.7

A summary of purchases and/or contracts for products and services in excluded categories.

GO 156, § 9.1.7, as amended and adopted by this decision

Delete per Decision _______________ [the final decision issued in this rulemaking.]

* * * * * * *

Existing Rule, GO 156, § 9.1.9

See Proposal, part 2 below.

GO 156, § 9.1.9, as amended and adopted by this decision

See text for § 9.1.9 below.

* * * * * * *

Existing Rule, GO 156, § 10.1.4

Plans for seeking and or recruiting WMDVBE suppliers of products or services in any "excluded category" of products or services which has been removed from the procurement dollar base used to set goals because of the established unavailability of WMDVBE suppliers.

GO 156, § 10.1.4, as amended and adopted by this decision

Plans for seeking and or recruiting WMDVBE suppliers of products or services where WMDVBE suppliers are currently unavailable.

* * * * * * *

2. Proposed Amendments to General Order (GO) 156, § 9 [regarding elements to include in the utilities annual report]

Existing Rule, GO 156, § 9.1.2

A summary of WMDVBE purchases and/or contracts, with breakdowns by ethnicity, product and service categories compared with total utility contract dollars awarded to outside vendors in those categories.

GO 156, § 9.1.2, as amended and adopted by this decision

[No amendment to the existing § 9.1.2 at this time, per the discussion in this decision.]

* * * * * * *

Existing Rule, GO 156, § 9.1.9

A justification for the continued existence of any "excluded category" of products or services which has been removed from the procurement dollar base used to set goals because of the established unavailability of WMDVBE suppliers. Such justification must include a description of any efforts made to find and or recruit WMDVBE suppliers of products or services in the excluded category.

GO 156, § 9.1.9, as amended and adopted by this decision

Utilities shall retain all documents and data they rely on in preparing their WMDVBE annual report for the longer of either three years or in conformance with the utilities' individual document retention policies, and shall provide these documents and data to the Commission upon request.

(END OF APPENDIX A)

LIST OF RESPONDENTS TO THE RULEMAKING

Report Pursuant to Rulemaking Filed

AB Cellular Holding, L.L.C. Yes¹²

Allegiance Telecom of California, Inc. Yes

AT&T Communications of California, Inc. Yes

AT&T Broadband, Inc. Yes (as Comcast)

AT&T Wireless Services of California, Inc. Yes

Bakersfield Cellular L.L.C. Yes

Bay Area Cellular Telephone Company Yes

Brooks Fiber Comms. of San Jose, Inc. No

Cable & Wireless USA, Inc. Yes

Cagal Cellular Communications Corp. Yes

Cellco Partnership No

Choice Communications No

Cingular Wireless Yes

Citizens Telecommunications Co. of California Yes

Comcast Phone of California, LLC Yes

Cox California Telecom, L.L.C. Yes

Cox Communications PCS, L.P. No

Fresno MSA Ltd. Partnership No

Global Crossing Telecommunications No

GTE Mobilnet of California No

Lodi Gas Storage, L.L.C. No¹³

Los Angeles SMSA Limited Partnership No

MCI Metro Access Transmission Services No

MCI Worldcom, Inc. Yes

Metropolitan Fiber Systems of California, Inc. No

Mpower Communications Corp. No

Napa Cellular Telephone Company Yes

Nationwide Cellular Svc. Inc. No

Nextel of California, Inc. Yes

Nosva, L.P. No

Omnipoint Communications, Inc. Yes¹⁴

PacifiCorp Yes

Pacific Gas and Electric Company Yes

Pac-West Telecommunications, Inc. No

Qwest Communications Corporation No

Roseville Telephone Company Yes

SBC/California Yes

SBC Advanced Solutions, Inc. Yes

Sacramento Valley Ltd. Partnership No

Salinas Cellular Telephone Company Yes

San Diego Gas & Electric Company Yes

Santa Barbara Cellular Yes

Sierra Pacific Power Company Yes

Southern California Edison Company Yes

Southern California Gas Company Yes

Southwest Gas Corporation Yes

Sprint Communications Company, L.P. Yes

Sprint Telephony PCS, L.P. Yes

Sprint Spectrum L.P. as agent for WirelessCo L.P. Yes

Talk America, Inc. No

TCG Los Angeles No

U.S. Cellular No

Vartec Telecom, Inc. No

Verizon California, Inc. Yes

Verizon Wireless, L.L.C. Yes¹⁵

Visalia Cellular Telephone Company Yes

Wild Goose Storage, Inc. No¹⁶

XO California, Inc. Yes

(END OF APPENDIX B)

¹³ Lodi Gas Storage filed reply comments to the rulemaking.