Background

By D.00-02-047 the responsibility for undertaking the audit of Pacific Bell Telephone Company (Pacific Bell) as part of monitoring activities under the new regulatory framework (NRF) established by D.89-10-031 was transferred from ORA to the Commission's Telecommunications Division. ORA and The Utility Reform Network (TURN) sought rehearing of D.00-02-04 based on claims of due process denial and the record basis for discussion in that decision of an appearance of bias involving the selected consultants.

In D.01-02-041, the Commission concluded there was no due process denial, but granted rehearing with respect to the issue of the legal adequacy of the record evidence described in D.00-02-047 regarding an appearance of bias. We vacated D.00-02-047 to better reflect the reasons for the transfer of audit responsibility. In addition, in the interest of clarifying ORA's on-going role in the NRF audit process, language was placed in the rehearing decision stating that ORA's discovery rights when the audit is produced would be as expansive as those of any other party. Specifically the decision stated:

"It is important to note, furthermore, that our transferring of the Pacific Bell audit responsibility to the Telecommunications Division does not mean that ORA no longer has the right to inspect or review Pacific Bell account data or other information. Pursuant to section 309.5, ORA has the duty to represent customer interests in Commission proceedings. Therefore, when the Pacific Bell audit information and results are submitted in the NRF proceedings, ORA shall have discovery rights, as do other parties to the proceeding. It may also rely on Section 309.5(e), which provides:

`The division may compel the production or disclosure of any information it deems necessary to perform its duties from entities regulated by the commission provided that any objections to any request for information shall be decided by the assigned commissioner or by the president of the commission if there is no assigned commissioner.'

In addition, the transfer of the audit responsibility does not relieve Pacific Bell of its obligation to fully answer any and all data requests received from all Commission staff, and to provide answers on a timely basis." (D.01-02-047, at 5-6.)

On March 1, 2001, ORA filed a petition for modification of D.01-02-047 (Petition) to "modify language so as to resolve what could be construed as an internal inconsistency within the decision, so that ORA's discovery rights in this matter are clearly set forth, consistent with statute." (ORA Petition at 1.) ORA also filed a motion requesting a shortening of time for the filing of responses to the Petition.

On March 5, 2001, Administrative Law Judge Weismehl issued a ruling shortening the time for responses. Timely responses to the ORA petition were filed by Pacific Bell and TURN.

TURN supports the ORA petition and urges the Commission to grant ORA's Petition to ensure there is no confusion as to the discovery rights of ORA.

Pacific Bell objects to the ORA petition and accompanying motion on both procedural and substantive grounds.

Pacific Bell first objects to the motion of ORA requesting a shortening of time to respond to the Petition. Pacific Bell states, correctly, that ORA cited an erroneous provision, Rule 43, as its authority for a petition for modification and that its request for an order shortening time "was not accompanied by any declarations or affidavits establishing any basis for deviating from the Commission's rules." (Pacific Bell's Objections to and Response to the ORA's Petition to Modify D.01-02-041, hereafter Pacific Bell's Response.) Whatever the source for the citation error, it does not represent a substantive failure since the rules concerning the filing of a petition for modification, as contained in Rule 47, were complied with in the ORA Petition filing.

Rule 47(f) states:

"Responses to petitions for modification must be filed and served within 30 days of the date that the petition was served, unless the administrative law judge sets a different date."

In this specific situation, ORA requested the shortening of time by a separate motion (as required by Rule 2.1). Our rules with regard to motion practice provide that "[n]othing in this rule prevents the Commission or the administrative law judge from ruling on a motion before responses or replies are filed." (Rule 45 (h).) In spite of the unfortunate amount of time that has elapsed in bringing the audit we ordered in June 1994, seven years ago, to completion, the Commission does not wish to have any further delays surrounding this audit or any other activity related to it. The Administrative Law Judge was correct in considering this matter of importance and granting the motion shortening time without waiting for responses.

Pacific Bell also objects to the substance of the ORA Petition, contending ORA is attempting to create an ambiguity where none exists. Pacific Bell contends § 309.5 directs ORA to carry out its customer representation role in "proceedings" and, seemingly, not before such proceedings are initiated. (Pacific Bell Response at 3-5.) Pacific Bell also contends that ORA is endeavoring to conduct a second audit, contrary to the Commission's intent in transferring the audit responsibility to the Telecommunications Division. (Id. at 5.)