Scoping Memo

Rule 6(c)(2) of our Rules of Practice and Procedure provides that a rulemaking order "shall preliminarily determine the category and need for hearing, and shall attach a preliminary scooping memo." This rulemaking is preliminarily determined to be quasi-legislative, as that term is defined in Rule 5(d). We anticipate that hearings will not be required and herein solicit comments on whether we should amend GO 77-K to make the following changes:

1. Amend the compensation levels that trigger reporting under the GO and establish an automatic annual change based on the GDPPI.

2. Exempt CLECs/NDIECs from the requirements of GO 77.

3. Determine whether information on employees' names and compensation levels should be subject to Pub. Util. Code § 583.

The proposed timetable for this proceeding will be as follows:

Interested parties notify Process September 5, 2003

Office requesting to be on Service List

Assigned ALJ issues ruling September 22, 2003

to establish Service List

Opening Comments October 7, 2003

Reply Comments October 22, 2003

Proposed decision January 22, 2004

The assigned ALJ may issue rulings to adjust the timetable as necessary during the course of the proceeding.

Any person who objects to the preliminary categorization of this rulemaking, the need for hearing, or to the preliminary schedule, may file a motion with their objections within 30 days of the issuance of this order.

Pursuant to Rules 7(a) and 7(d), ex parte communications are permitted in this proceeding without any restrictions or reporting requirements.

Comments on Revised Draft Decision

The revised draft decision (RDD) of the ALJ in this matter was mailed to the parties to Petition 02-12-039 in accordance with Section 311(g)(1) of the Public Utilities Code and Rule 77.7 of the Rules of Practice and Procedure. In addition, a letter was sent to all CLECs/NDIECs, telling them about the proposed modifications to GO 77, and inviting their participation in this proceeding. The letter told CLECs/NDIECs that they could obtain a copy of this DD on the Commission's website or by contacting the Commission's Central Files. Comments were filed on August 7-8, 2003, and reply comments were filed on August 12-13, 2003. We have taken those comments into account, as appropriate, in finalizing this order.

In its comments on the RDD, Greenlining/LIF takes issue with the requirement to serve its comments on CLECs/NDIECs, citing as a reason the costs of mailing comments to 1,200 entities. According to Greenlining/LIF requiring service on the 1,200 CLECs/NDIECs is burdensome and expensive, and contrary to the Commission's stated position of encouraging the effective and efficient participation of small entities. In its comments, PG&E agreed with Greenlining/LIF that it is unduly burdensome to require such extensive service and indicated that it had inadvertently overlooked the requirement to serve CLECs/NDIECs when it filed its own comments. PG&E questioned whether the Commission necessarily intended for all commenting parties to incur those costs. PG&E supports Greenlining/LIF in seeking clarification as to whether the Commission intended hard copy service on all CLEC/NDIEC respondents.

The Chief ALJ's cover letter stated quite clearly: "Comments must also be served on all certificated Competitive Local Exchange Carriers (CLECs) and all certificated Nondominant Interexchange Carriers (NDIECs)." The letter referred to a list of CLECs/NDIECs on the Commission's website. The assigned ALJ anticipated that all certificated CLECs/NDIECs on the list would be served with parties' comments. Since the decision proposes to exempt CLECs/NDIECs from GO 77 requirements, those carriers have a right to notice and an opportunity to be heard. We need to balance that requirement against the costs incurred by other parties. We did indeed intend that CLECs/NDIECs be served with other parties' comments. The Chief ALJ ordered that they be served because they potentially have an interest in the rulemaking. In spite of the failure of Greenlining/LIF and PG&E to serve their comments, we received comments from CALTEL and Competitive Carriers and a second group of Competitive Carriers, and from KMC Telecom V Inc. that address the issues that affect those carriers so we believe that the due process needs of CLECs/NDIECs have been met. Therefore, we will not order that Greenlining/LIF and PG&E serve their comments after the fact.

We recognize that a huge service list can be burdensome, and in an effort to mitigate the costs in the future, we will order the Telecommunications Division to develop an electronic list of carriers to use in future proceedings.