3. Burden of Proof

The briefs for ORA and Southwest discuss the Commission's standard regarding burden of proof in a ratemaking proceeding. ORA argues that Southwest has the burden of proof to demonstrate by clear and convincing evidence that Southwest is entitled to the rate increase it is seeking. In support of its position, ORA cites D.92496,⁴ and D.83-05-036⁵ that explain the Commission's standard for burden of proof. ORA also references the Commission's recent Pacific Gas and Electric (PG&E) general rate decision, that explains that clear and convincing evidence is "proof by evidence that is clear, explicit and unequivocal; that is so clear as to leave no substantial doubt; or that is sufficiently strong to demand the unhesitating assent of every reasonable mind." (D.00-02-046, pp. 36-37.)

Southwest does not dispute ORA's position, and agrees that the burden of proof is its responsibility. However, Southwest argues that a clarification is necessary to explain the difference between the ultimate burden of proof, and the burden of going forward to produce evidence from a party presenting a counterpoint. In support of its position, Southwest points out that D.00-02-046, also cites D.87-12-067,⁶ a general rate increase proceeding for Pacific Bell Company, in which, the Commission states:

[W]here other parties propose a result different from that asserted by the utility, they have the burden of going forward to produce evidence, distinct from the ultimate burden of proof. The burden of going forward to produce evidence relates to raising a reasonable doubt as to the utility's position and presenting evidence explaining the counterpoint position. Where this counterpoint causes the Commission to entertain a reasonable doubt regarding the utility's position, and the utility does not overcome this doubt, the utility has not met its ultimate burden of proof. (Pacific Bell, D.97-12-067, 27 CPUC 2d 1, 22.)

Southwest contends it has met its ultimate burden of proof when it presented evidence on its expenses; but, when ORA estimated expenses, ORA did not produce evidence sufficient to cause the Commission to entertain a reasonable doubt regarding Southwest's position. Even if reasonable doubt had been raised by ORA's evidence, Southwest asserts that the doubt was overcome through Southwest's rebuttal presentation on expenses.

3.1. Discussion

We conclude that the burden of proof clearly rests with Southwest. Although a counterpoint may be raised by another party, Southwest must first justify the reasonableness of its position. As we stated in D.00-02-046, "To meet the burden of presenting clear and convincing evidence of the need for an increase the applicant must produce evidence having the greatest probative value."⁷ As ORA points out, it is Southwest's direct showing that must provide the clear and convincing evidence. Without establishing that basis, Southwest will not have met its burden of proof. As we discuss herein, we have considered the evidence from this perspective, and reached conclusions regarding factual matters. Where applicable, we have then used those findings of fact in reaching conclusions on the reasonableness of each issue in Southwest's application.