II. Procedural Background
The Commission adopted an OIR concerning Broadband Over Power Line Deployment by Electric Utilities in California on September 8, 2005. Pacific Gas and Electric Company (PG&E), Southern California Edison Company (SCE), and San Diego Gas & Electric Company (SDG&E) were identified as Respondents. Parties were ordered to file opening comments on the issues identified in the OIR by October 6, 2005 and reply comments by October 17, 2005. The Commission also preliminarily determined that there was no need for evidentiary hearings in this proceeding. Parties that believed evidentiary hearings were required had to file a motion requesting such a hearing by October 6, 2005.
On September 29, 2005, The Utility Reform Network (TURN) filed a motion requesting that the deadline for comments be extended by at least four weeks, and that the deadline for requesting evidentiary hearings be changed from concurrently with initial comments to concurrently with reply comments. An Administrative Law Judge's ruling granted these requests and extended the deadline for opening comments to November 3, 2005, and extended the deadline for reply comments to November 15, 2005. The deadline for requesting evidentiary hearings was moved to November 15, 2005.
Opening comments were received on November 3, 2005. The parties that filed comments in this proceeding are Ambient Corporation, CCTA, the California ISP Association (CISPA), Californians for Renewable Energy (CARE), the City of Cerritos, the City and County of San Francisco, Current, CTIA-The Wireless Association (CTIA), Disability Rights Advocates , Greenlining, PG&E, SDG&E, SCE, TURN, Time Warner Telecom of California, the United States Department of Defense and All Other Federal Executive Agencies and the Utility Consumers' Action Network (UCAN).
PG&E, SCE, California Cable and Telecommunications Association (CCTA) and Current Communications (Current) filed a joint motion requesting a 20-day extension of time to file reply comments. TURN supported the joint motion, and SDG&E opposed the motion. The administrative law judge (ALJ) extended the deadline for filing reply comments and requests for evidentiary hearings to November 22, 2005.
Parties filed reply comments on November 22, 2005. Californians for Renewable Energy (CARE), Disability Rights Advocates, the Division of Ratepayer Advocates (DRA) (then known as the Office of Ratepayer Advocates), the Greenlining Institute (Greenlining) and TURN filed motions requesting evidentiary hearings.
On November 21, 2005 the ALJ issued a Notice of a Pre-Hearing Conference to be held on December 8, 2005 to determine the parties, positions of the parties, issues, and other procedural matters.
One important procedural issue is whether evidentiary hearings are necessary in this proceeding. Pub. Util. Code § 1701.1(a) provides that the Commission, "consistent with due process, public policy and statutory requirements, shall determine whether a proceeding requires a hearing. After reviewing the issues relevant to this decision, we hold that evidentiary hearings are not needed in this proceeding. This conclusion is supported by the ALJ and Assigned Commissioner.
Our decision not to hold evidentiary hearings is consistent with our decision in In Re Competition of Local Exchange Service (1995) 61 CPUC2d 597, 601. In that decision, the Commission addressed the issue of whether and when due process considerations require evidentiary hearings:
Due process is the federal and California constitutional guarantee that a person will have notice and an opportunity to be heard before being deprived of certain protected interests by the government. Courts have interpreted due process as requiring certain types of hearing procedures to be used before taking specific actions.
The California Supreme Court has laid down a simple rule regarding the application of due process. According to the Court, if a proceeding is quasi-legislative, as opposed to quasi-judicial, there are no vested interests being adjudicated, and therefore, there is no due process right to a hearing. (Citing Consumers Lobby Against Monopolies v. Public Utilities Commission (1979) 25 Cal.3d 891, 901; Wood v. Public Utilities Commission (1971) 4 Cal.3d 288, 292.)
Pursuant to this analysis, the Commission in In Re Competition of Local Exchange Service decided that evidentiary hearings were not required, because the proceeding at issue was quasi-legislative. Similarly, this proceeding is not a quasi-judicial matter which requires a hearing. We do not part from our preliminary categorization, and maintain that this proceeding is quasi-legislative proceeding. No vested interests of any party are being adjudicated. Also, no party other than TURN challenged the Commission's preliminary categorization.19
Furthermore, the record provides no persuasive reason to depart from our preliminary conclusion that there is no need for evidentiary hearings. The issues in this proceeding, for the most part, involve policy and legal conclusions that have been addressed in briefs. Also no party has demonstrated a disputed material issue of fact that would affect our deliberations. (See Prehearing Conference (PHC) transcript, at 15-16.)
19 TURN objected to a preliminary determination exclusively deeming this proceeding as quasi-legislative, suggesting instead a bifurcated proceeding in which policy issues would be deemed quasi-legislative in a first phase of the proceeding and that fee issues (if any) be deemed adjudicative in a second phase of the proceeding. Our decision today does not set fees, instead making them subject to negotiation between BPL providers and utilities. We decide related § 851 issues on a policy basis. Accordingly, we decline to adopted TURN's suggestion.
