STATE OF CALIFORNIA GRAY DAVIS, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

File No.: C.00-07-054

February 26, 2001

TO: PARTIES OF RECORD IN CASE 00-07-054

The draft decision of Administrative Law Judge (ALJ) Walker, mailed to parties on February 23, 2001, contained a typographical error by which two sentences were transposed to the wrong paragraph.

Attached are corrected pages 7 and 8 of the draft decision, which should be substituted for those pages in the mailed draft.

Because of this error, the date for comments on the draft decision, pursuant to Article 19 of the Commission's Rules of Practice and Procedure, shall be 20 days from the date of mailing of this notice.

/s/ LYNN T. CAREW

Lynn T. Carew, Chief

Administrative Law Judge

LTC:tcg

Attachment

Pub. Util. Code § 454 states in pertinent part:

"[N]o public utility shall change any rate or so alter any classification, contract, practice, or rule as to result in any new rate except upon a showing before the commission and a finding by the commission that the new rate is justified." (Emphasis added.)

More specifically, General Order (G.O.) 96-A provides that:

"The tariff schedules of a utility may not be changed whereby any rate or charge is increased, or any condition or classification changed so as to result in an increase, or any change made which will result in a lesser service or more restrictive conditions at the same rate or charge, until a showing has been made before the Commission and a finding by the Commission that such increase is justified." (G.O. 96-A, § VI; emphasis added.)

SCE insists that its change in policy is consistent with the language of Rule 20. Certainly, when the tariff language is considered as a whole--including the Rule 20.B.3 provision specifically addressing removal of overhead facilities--that interpretation appears valid. When determining whether there is ambiguity in a tariff, we are required to consider tariff language as a whole. (Re Southern California Utility Power Pool (1995) 60 CPUC2d 462, 471.) On the other hand, Rule 20.B.2.c does not address pole removal costs and, given the Commission's intent in D.73078 to encourage conversion to underground facilities, it was not unreasonable for SCE for 30 years to assume that it should bear the removal costs. It is settled law that an ambiguity in a tariff must be construed against the utility and in favor of the customer. (Order Denying Rehearing (1992) 45 CPUC2d 645.)

The issue here, however, is not whether SCE's pole removal practice conforms to its tariffs. The issue is whether the change in that practice required prior Commission approval. We conclude that it did. To conclude otherwise

would allow a utility, in practical effect, to increase its charges without Commission authorization. This would contravene Pub. Util. Code § 454, G.O. 96-A, and the rule of construction just cited that a tariff must be construed in favor of the customer.

SCE argues that seeking approval of a change in practice without a change in tariff language would be tantamount to seeking an advisory opinion. The Commission generally does not issue advisory opinions. (Re San Diego Gas and Electric Company (1991) 42 CPUC2d 9.) Moreover, SCE states that if it filed an advice letter every time it changed a practice, the Commission would be inundated with filings.

We believe those contentions overstate the effect of our decision today. Our order is confined to the facts of this case. It finds that Barratt American has stated a valid complaint under G.O. 96-A. SCE should have sought Commission approval before changing a practice that had been in place for 30 years and that eliminated a substantial credit to applicants for underground conversion. Rather than seek an advisory opinion, SCE could have sought a change in tariff language to make its new practice clear and put conversion customers on notice that they no longer would get credit for costs of pole removal.

Accordingly, we find for complainant and require that SCE refund to Barratt American the $33,700 that SCE had assessed for pole removal.

The scope of this proceeding is set forth in the complaint and answer; by agreement of the parties, a hearing is not needed. Our order today confirms that ALJ Walker is the presiding officer.

7. Comments on Draft Decision

The draft decision of ALJ Walker in this matter was mailed to the parties in accordance with Section 311(g)(1) of the Public Utilities Code and Rule 77.7 of the