4. Substantial Contribution to Resolution of Issues
A party may make a substantial contribution to a decision in one of several ways.2 It may offer a factual or legal contention upon which the Commission relied in making a decision,3 or it may advance a specific policy or procedural recommendation that the Administrative Law Judge or Commission adopted.4 A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt a party's position in total.5
TURN notes, correctly, that the subject matter of D.01-02-041 is extremely limited. The major substantive issues of this proceeding, of which there were a great many, were resolved in several prior decisions. The issue being addressed by D.01-02-041 was whether error had been committed in the prior decision in which the Commission reassigned the NRF audit responsibility from ORA to the Telecommunications Division. TURN contends that the prior decision in which the reassignment was made, D.00-02-047, was largely based on findings and conclusions associated with the purported appearance of bias on the part of ORA. TURN notes that TURN and ORA filed a joint application for rehearing of D.00-02-047, arguing in large part that there was inadequate record evidence in support of the appearance of bias findings and conclusions. TURN contends the Commission agreed with those arguments and, as a result, vacated D.00-02-047. (TURN Request at 3.)
TURN states that the risk of such language regarding bias remaining in a Commission decision was that other parties in other proceedings in the future might cite such a decision to discredit ORA. They contend that although the issue of which Commission unit was doing the audit remained unchanged by the grant of rehearing and vacation of D.00-02-047, the removal of the language discussing an appearance of bias associated with ORA was of substantial benefit. (Id. at 3-4.)
Pacific Bell challenges TURN's assertion of substantial benefit. Pacific Bell says that in making changes to D.00-02-047, "[t]he Rehearing Decision specifically rejected the ORA/TURN `due process' argument, and it did not discuss at all the ORA/TURN `evidentiary record' argument" (i.e., the absence of an evidentiary record for the finding of an appearance of bias). (Pacific Bell Response at 2.)
As TURN notes in its Reply to the Pacific Bell Response, Pacific Bell is in error. On the first page of D.01-02-041 we stated: "The Commission concludes that there was no due process violation, but that ORA's and TURN's argument has merit with respect to the legal adequacy of the record evidence described in D.00-02-047 regarding an appearance of bias." Thus, the decision expressly relied on one of TURN's arguments, and we concur that TURN made a substantial contribution to D.01-02-041.
Pacific Bell also takes issue with two other aspects of the TURN Request, both of which go to the size of the request.
First, Pacific Bell contends that even if the ORA/TURN application for rehearing made a contribution to the rehearing decision, there is no evidence that TURN added anything to the effort. Pacific Bell notes the TURN acknowledgement that there was substantial overlap of TURN with the work of ORA and suggests that the application for rehearing was drafted by ORA and TURN merely joined in. (Pacific Bell Response at 2.)
TURN responds by noting that they acknowledged overlap with ORA but that Pacific Bell neglected TURN's verified assertion that reasonable steps were taken to avoid duplication and, where there was some degree of overlap, the work of ORA and TURN served to complement each other. As TURN correctly points out, § 1802.5 permits such related work. It states: "Participation by a customer that materially supplements, complements, or contributes to the presentation of another party, including the commission staff, may be fully eligible for compensation if the participation makes a substantial contribution to a commission order or decision, consistent with Section 1801.3."
Finally, Pacific Bell contends that the claimed hours are excessive in that they include work in a time period that preceded the efforts related to the application for rehearing of D.01-02-041. (Pacific Bell Response at 2.)
TURN replies that it should be permitted to claim compensation on the efforts leading up to the decision on which rehearing was sought. TURN contends that its efforts in dealing with the consideration of Pacific Bell's petition for modification leading up to D.00-02-047 focused primarily on the "appearance of bias" language that appeared in the Alternate Decision of Commissioner Duque. TURN states that if that language had not been adopted and that standard not set, they would not have sought rehearing of D.00-02-047 and would instead have pursued their compensation request for those efforts immediately following the issuance of D.00-02-047.
TURN's request for work related to D.00-02-047 is timely. Pursuant to § 1804(c) a request for an award of compensation must be filed within 60 days "[f]ollowing issuance of a final order or decision by the commission in the hearing or proceeding. . . . " Pursuant to Rule 76.72 of the Commission' Rules of Practice and Procedure: "If an application for rehearing challenges a decision on an issue on which the customer believes it made a substantial contribution, the "final order or decision" on that issue means the order or decision denying rehearing on that issue, the order or decision that resolves that issue after rehearing, or the order or decision closing the proceeding." The logic of this requirement is obvious since, absent resolution of any application for rehearing filed within the otherwise applicable 60-day period, it would be inconclusive as to whether a substantial contribution would be demonstrable or sustainable.
2 Section 1802(h).
3 Id.
4 Id.
5 The Commission has provided compensation even when the position advanced by the intervenor is rejected. D.89-03-063 (awarding San Luis Obispo Mothers For Peace and Rochelle Becker compensation in Diablo Canyon Rate Case because their arguments, while ultimately unsuccessful, forced the utility to thoroughly document the safety issues involved).
