Conclusion

For the reasons discussed in the body of this decision, D.01-02-041 should be modified by revising the language on pages 5 and 6 of the printed version of the decision as follows:


"The Commission has decided, therefore, that it would be more efficient and a better deployment of resources to have the Telecommunications Division oversee the Pacific Bell audit that is to be submitted in the next NRF review proceeding. We shall, accordingly, vacate D.00-02-047, but we shall also affirm our order transferring oversight of the audit from ORA to the Telecommunications Division. The present decision shall serve to issue the order as well as respond to ORA's and TURN's joint application for rehearing.


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 314, "...each officer and person employed by the commission may, at any time, inspect the accounts, books, papers and documents of any public utility. Section 314(b) makes this applicable to affiliates or holding companies of any public utility with respect to transactions between the affiliates, holding company and the utility that might adversely affect the interests of the ratepayers of the utility. ORA staff members remain fully employees of the Commission. Additionally, 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 proceeding, ORA shall have discovery rights, as do other parties to the proceeding. It may also rely on Section 309.5(e), which provides:


Thus, 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."

Comments on Draft Decision

The draft decision of ALJ Weismehl in this matter was mailed to the parties in accordance with Section 311(g)(1) of the Public Utilities Code and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ___________, and reply comments were filed on ________________.

Findings of Fact

1. ORA's erroneous reference to Rule 43 rather than Rule 47, the current rule governing petitions for modification, 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.

2. The Commission may have allowed an erroneous inference to be made that ORA's on-going broad discovery rights, as both a statutory organization and a unit of the Commission's staff, were diminished in some fashion and did not commence until the audit was completed and became the subject of review in a formal proceeding.

3. The Commission does not seek to have two formal audits of Pacific Bell; the formal audit responsibility has been given to the Telecommunications Division.

4. ORA is a unit of the Commission staff.

5. ORA staff members are Commission staff members as that term is used in § 314.

6. ORA is the unit of the Commission staff designated in § 309.5 to represent customer interests in Commission proceedings.

7. Procedures exist to address any challenges to information requests made to public utilities by the Commission staff in general or ORA in particular.

Conclusions of Law

1. Rule 45(h) permits the Commission or an administrative law judge to rule on a motion before responses or replies are filed.

2. The assignment of the formal Pacific Bell audit responsibility to the Telecommunications Division does not serve to limit the authority for ORA to obtain all information necessary to carry out its responsibilities as a unit of the Commission's staff and as the organization designated with the responsibilities set out in § 309.5.

3. ORA's rights to obtain information from utilities pursuant to §§ 314 and 309.5 do not require the existence of a related proceeding and may be exercised at any time for any purpose related to its scope of work.

4. No hearing should be required pursuant to § 1708 since the matters determined are all matters of law on which the parties have had an adequate opportunity to present their positions.

5. D.01-02-041 should be modified as described in this decision.

ORDER

IT IS ORDERED that:

1. The Petition for Modification filed by the Commission's Office of Ratepayer Advocates on March 1, 2001 is granted and the language in Decision 01-02-041 is changed at pages 5 and 6 of the printed version of the decision as follows, with underscoring indicating additions and strikeout indicating deletions:


"The Commission has decided, therefore, that it would be more efficient and a better deployment of resources to have the Telecommunications Division oversee the Pacific Bell audit that is to be submitted in the next NRF review proceeding. We shall, accordingly, vacate D.00-02-047, but we shall also affirm our order transferring oversight of the audit from ORA to the Telecommunications Division. The present decision shall serve to issue the order as well as respond to ORA's and TURN's joint application for rehearing.


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 314, "...each officer and person employed by the commission may, at any time, inspect the accounts, books, papers and documents of any public utility. Section 314(b) makes this applicable to affiliates or holding companies of any public utility with respect to transactions between the affiliates, holding company and the utility that might adversely affect the interests of the ratepayers of the utility. ORA staff members remain fully employees of the Commission. Additionally, 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 proceeding, ORA shall have discovery rights, as do other parties to the proceeding. It may also rely on Section 309.5(e), which provides:


Thus, 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."

2. This proceeding is closed.

This order is effective today.

Dated , at San Francisco, California.

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