2. Eligibility

To be eligible for compensation, a participant in a formal Commission proceeding, such as this one, must establish that it is a "customer" and that participation without compensation would pose a significant financial hardship.

2.1. Customer Status

Section 1802(b) defines the term "customer" as:

"any participant representing consumers, customers, or subscribers of any electrical, gas, telephone, telegraph, or water corporation that is subject to the jurisdiction of the commission; any representative who has been authorized by a customer; or any representative of a group or organization authorized pursuant to its articles of incorporation or bylaws to represent the interests of residential customers..."

Addressing this eligibility requirement, the Commission has indicated that a participant should explain how it meets the definition of customer and, if it is a group or organization, should provide a copy of its articles or bylaws, noting where in the document the authorization to represent the interest of residential ratepayers can be found. Further, a group or organization should indicate what percentage of its membership are residential ratepayers. (See Decision 98-04-059, slip op., pp. 83 and 88.) The Commission has stated that if the current articles or by-laws have already been filed, the group or organization need only make a specific reference to such filing.

UCAN is a non-profit consumer advocacy organization that represents the interests of residential and small commercial customers of California's utility companies before this Commission. UCAN appended a copy of its articles of incorporation to the NOI it filed in Rulemaking (R.) 98-12-015 and subsequently, in that proceeding and in numerous other proceedings, has been found to represent residential customers within the terms of the 1802(b). As there had been no change in UCAN's status, I find that UCAN meets the statutory definition of "customer" for the purpose of 1802(b).

2.2. Significant Financial Hardship

The second eligibility requirement is significant financial hardship, and with respect to a group or organization, § 1802(g) defines the term to mean: "... the economic interest of the individual members of the group or organization is small in comparison to the costs of effective participation in the proceeding."

Under § 1804(a)(2)(B), this showing may be made in the NOI, or alternatively, deferred until the request for compensation is filed. Under § 1804(b)(1), a finding of significant financial hardship creates a rebuttable presumption of eligibility for compensation in other Commission proceedings commencing within one year of the date of the finding.

The April 8, 2002 ALJ ruling in C.02-01-007determined UCAN had made a showing of significant financial hardship. Since this proceeding was commenced within one year of that determination, the rebuttable presumption of eligibility applies here. Cingular challenges this presumption for reasons described below and then concedes that its challenge actually does not affect UCAN's eligibility for compensation, but rather other issues (e.g. unrealistic expectation for compensation under § 1804(b)(2)) that can be addressed in the ruling on the NOI. The basis of Cingular's challenge is that UCAN has filed a class action against Cingular in Superior Court in San Diego County that contains allegations similar to those raised in this investigation. UCAN is the lead plaintiff as well as one of plaintiff's attorneys in that matter and seeks both monetary relief and attorneys' fees. Thus, Cingular argues that should UCAN prevail in this investigation and in the Superior Court proceeding, it could essentially recover twice for substantially the same work.

As Cingular admits, it has not established facts which rebut the presumption that UCAN's financial hardship showing should apply here--rather, Cingular's response goes to the recoverability of UCAN's costs, should UCAN ultimately be found to have made a substantial contribution to this proceeding. UCAN is eligible to file for an award of intervenor compensation at the conclusion of this proceeding. Any award is contingent upon a future showing that UCAN has made a substantial contribution, as required by statute.

UCAN will also need to show that it has avoided unnecessarily duplicating the effort and resources of the Consumer Protection and Safety Division, the staff division the Commission has charged to prosecute this investigation, or of the other intervenor in this proceeding, The Utility Reform Network (TURN). UCAN should ensure that its record keeping segregates the litigation costs of this investigation from the class action and that any costs that might be charged to either proceeding (or both) are reasonably apportioned between them.