VII. Comments on Draft Decision

The Draft Decision on intervenor compensation was mailed to the parties, and Greenlining/LIF and La Raza filed comments. La Raza took issue only with the determination that 20 hours of expert time is reasonable for the Hargadon testimony, rather than the 70 hours requested. La Raza re-iterated its previously stated justification for 70 hours of time and pointed out that Haragon's testimony was 24 pages in total. We find that 20 hours of expert time is reasonable for the portions of the testimony that "assisted the Commission in the making of its order or decision," § 1802(h), and decline to modify the draft decision.

Greenlining/LIF argued that the Commission erred by finding that La Raza had made a substantial contribution to the proceeding, and that the Commission arbitrarily used different standards to evaluate the two intervenors' efforts in the proceeding. Greenlining/LIF comments at 2 and 9. La Raza sought compensation under the theory that although the Commission did not adopt La Raza's recommendations, La Raza's presentation was useful to the Commission in making its order or decision. In contrast, Greenlining contended that the Commission adopted its proposals. In today's decision, we apply the applicable standards and determine that La Raza made a substantial contribution and that Greenlining did not show that it met that statutory requirement.¹⁰

Under § 1802(h), a party may make a substantial contribution to a decision by presenting evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total. The Commission has construed this statutory provision to authorize an award of compensation even when the position advanced by the intervenor is rejected, where extraordinary circumstances justify the award. For example, in D.89-03-063, we awarded San Luis Obispo Mothers For Peace and Rochelle Becker compensation in the Diablo Canyon rate case because their arguments, while ultimately not adopted by us, forced the utility to thoroughly document the safety issues involved. We said that we may find that an intervenor has made a substantial contribution even in the absence of the adoption of any of the intervenor's recommendations but only in cases where a strong public policy exists to encourage intervenor participation because of factors not present in the usual Commission proceeding. These factors must include (1) an extraordinarily complex proceeding, and (2) a case of unusual importance. As stated in today's decision, we determine that La Raza has shown that its efforts meet this standard, and that it has made a substantial contribution.

Greenlining/LIF seeks compensation, however, under the theory that the Commission "implicitly and explicitly adopted" its positions, and that it "advanced additional positions endorsed by other parties thereby materially contributing to the analysis underlying the adopted decision," Comments on Draft Decision at p.1. Where the Commission adopted positions advocated by several parties, Greenlining/LIF must show that its presentation "materially supplement[ed], complement[ed], or contribute[d] to the presentation of another party." § 1802.5. We have previously determined that an intervenor need not make a unique contribution to meet this standard, but the "customer's presentation must substantially assist the Commission in making its order or decision." D.01-11-047, mimeo, at p. 9. In its Comments on the Draft Decision, Greenlining/LIF correctly restates the standard as requiring that the requesting party show that its position is (1) distinguishable from others, and (2) uniquely persuasive.¹¹

To show that it met the requirements of the second standard, Greenlining/LIF stated that it "recommended, and the Commission adopted" facilitating internet access through the ULTS program, and that the "Commission adopted Greenlining/LIF's suggestion that a higher CTF discount for CBO's would increase participation in the CTF program." Greenlining/LIF's Request at pages 4 and 6. As discussed above, however, the Commission did not adopt Greenlining/LIF's dial up internet access subsidy¹² as part of the ULTS program, and instead opted to keep ULTS basic telephone service rates as affordable as possible by rejecting any subsidy for internet access. In its comments on the intervenor compensation draft decision, Greenlining/LIF argues that it advocated for "protection" of the ULTS fund, and that the Commission adopted this contention. Greenlining/LIF's recommendation for a ULTS subsidy for dial-up internet access¹³ included additional "customer protections . . . to prevent marketing abuses" but these new protections were in the context of adding "high end technologies to the ULTS program." OIR Comments at page 10. Because the Commission did not adopt any type of ULTS subsidy, Greenlining/LIF's recommendation for these additional customer protections was neither considered nor adopted by the Commission. Also discussed above is the basis for our conclusion that one sentence in Greenlining/LIF's reply comments on the draft Broadband decision did not "materially supplement, complement, or contribute to the presentation of another party." Where an intervenor has not demonstrated a substantial contribution to the decision, § 1803 requires that we decline to make an award of compensation.

In sum, Greenlining/LIF has not shown that the draft decision erred in its conclusion that Greenlining/LIF had not met the standard for demonstrating that it made a substantial contribution. In response to Greelining/LIF's comments on the draft decision, however, we have made several modifications to the discussion to clarify the rationale supporting our conclusions.