3. Requirements for Awards from ATF

The rules governing administration of the ATF and the criteria for granting awards from the ATF are set forth in the "Declaration of Trust" (Declaration) dated October 11, 1982. Prior to execution, this document was approved by the Commission in D.82-05-009 and D.82-08-059. The language of the executed Declaration was subsequently modified in D.92-03-090.

The Declaration, Section 1.2, provides that the ATF is created to defray expenses related to litigation of consumer interests in "quasi-judicial complaint cases." The instant complaint falls within this category. Because this threshold requirement is met, the Request will be evaluated to determine if it meets the criteria for an award.

The criteria to be considered in determining eligibility for an award are set forth in the Declaration, Sections 1.3 and 1.4. Section 1.3 provides that an award may be granted only where the private party has made a "direct, primary, and substantial contribution" to the result of the case. Fees will be awarded where (1) complainants have generated a common fund that is not adequate to meet reasonable attorney or expert witness fees; (2) a substantial benefit has been conferred upon a party or members of an ascertainable class, but no means are available for charging those who benefited with the cost of obtaining the benefit; or (3) where complainants have acted as private attorney general in vindicating an important principle of statutory or constitutional law, but no other means or fund is available for award of fees.

Section 1.4 provides an award will be based upon consideration of four factors: (1) the societal importance of the public policy vindicated; (2) the necessity for private enforcement and the magnitude of the burden on the complainant; (3) the number of people standing to benefit from the decision; and (4) the magnitude of the party's own economic interest in the litigation. Fee recovery is allowed even if a party has an economic interest in the proceeding if the Commission finds good cause for an award.

3.1 Contribution to Resolution of Case

The Declaration, Section 1.3, provides that attorneys' fees may be awarded only where it is clearly and convincingly demonstrated that the private party has made a direct, primary, and substantial contribution to the result of the case. Complainants argue that as a result of their participation, the Commission stated conclusions of law in D.00-04-029 that clarify General Order (GO) 95, and that this clarification benefits all ratepayers. They further maintain that their participation resulted in the Commission's clarification of the standard and procedures to be utilized by an electric utility when contemplating the removal of utility infrastructure serving private property. Complainants provide citations to their testimony and positions that are reflected in the Commission's discussion in D.00-04-029. Upon review of the decision, we concur with Complainants that their participation made a direct, primary, and substantial contribution to the decision. Without Complainants' initiation of the complaint case, the need to review and correct SDG&E's implementation of various rules contained in GO 95 would not have come to our attention. This fact, combined with the specific arguments raised by Complainants, constitute a substantial contribution to our final decision.

3.2 No Means of Charging Costs of
Obtaining Benefit to Benefited Class

Section 1.3 provides three ways to demonstrate eligibility for an award. Complainants meet the second of these, which reads as follows: "Fees will be awarded from the ATF where a substantial benefit has been conferred upon a party or members of an ascertainable class, but no means are available for charging those benefited with the cost of obtaining the benefit..." As a result of Complainants' contributions in this proceeding, the Commission issued an order that applies and enforces GO 95 and rules contained therein. The Commission's order benefits all electric retepayers who have an interest in uninterrupted electric service. D.00-04-029 relates to the issue of when a utility may deem power lines to be abandoned by a customer, so that the utility may remove the power lines. The decision also clarifies that SDG&E Tariff Rule 15.I.1 does not confer upon SDG&E unfettered discretion to permanently abandon service to lines.

The wrongful removal of utility infrastructure serving Complainants' property illustrates the importance of enforcing the procedures that an electric utility should follow prior to removing infrastructure. It is important for electric utilities to understand the procedures that must be followed, and the requirements of GO 95. It is also important for Commission staff to understand the same procedures and rules. D.00-04-029 serves to clarify these issues for both utilities and staff. This is a benefit that has been conferred upon an ascertainable class consisting of electric utility consumers. There is no means available for charging this class of beneficiaries with the cost of Complainants' litigation expenses.¹

3.3 Section 1.4 Requirements

The Declaration, Section 1.4 provides that an award will be based upon consideration of four factors. The first factor is the strength or societal importance of the public policy vindicated. In this case we apply and enforce the rules found in GO 95 pertaining to the obligation of an electric utility to maintain utility infrastructure in place unless certain procedures are followed to establish that utility infrastructure has in effect been abandoned. The importance of clarifying these procedures and rules is demonstrated by the facts of this case, where SDG&E wrongfully removed utility infrastructure serving Complainants. The public policy interest raised makes this case one in which compensation from the ATF is justified.

The second factor to be considered is the necessity of private enforcement and the magnitude of the burden on the Complainant. In this case private enforcement, initiated by Complainants, was necessary to bring to the attention of the Commission the fact that SDG&E erroneously interpreted its obligations under GO 95 and SDG&E Tariff Rule 15.I.1. We find the burden on Complainants of bearing the cost of litigation to be substantial and meritorious of reimbursement. While D.00-04-029 requires SDG&E to restore the electric line to Complainants' property, the decision does not make Complainants whole because they are required to bear the cost of litigation. Accordingly, an award of litigation costs from the ATF is appropriate.

The third factor to be considered is the number of people standing to benefit from the decision. The beneficiaries of this decision are all electric utility customers. The broad interest in the issues addressed by D.00-04-029 make it a case in which an award from the ATF is appropriate.

The final factor to be considered is the magnitude of a party's own interest in the litigation. An economic interest in the litigation is not a bar to an award, if the Commission finds good cause for granting an award. In this proceeding Complainants had no expectation of obtaining any economic advantage. The complaint was brought to require SDG&E to restore access to utility electric service. Complainants prevailed and we ordered SDG&E to restore lines to Complainants' property. However, unless an award from the ATF is granted, Complainants are not made whole; rather, they experience an economic disadvantage in the amount of their litigation costs. It is appropriate to grant an award of litigation expenses.