COM/MP1/avs Mailed 7/13/2007

Decision 07-07-007 July 12, 2007

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Rulemaking on the Commission’s Own Motion for the Purpose of Considering Policies and Guidelines Regarding the Allocation of Gains from Sales of Energy, Telecommunications, and Water Utility Assets.

Rulemaking 04-09-003(Filed September 2,

2004)

OPINION GRANTING INTERVENOR COMPENSATIONTO THE UTILITY REFORM NETWORK FOR SUBSTANTIAL

CONTRIBUTIONS TO DECISION (D.) 06-05-041 AND D.06-12-043

This decision grants the request of The Utility Reform Network (TURN) for $40,701.13 in compensation for its claimed contribution to D.06-05-041 and D.06-12-043. We make minor changes to the requested amount to account for errors in the claimed hourly rates for one of TURN’s attorneys and its expert.1

BackgroundThe Commission opened this proceeding to develop gain on sale2

rules applicable to the water, energy and telecommunications industries. In D.06-05-041, the Commission adopted such rules, and in D.06-12-043, it addressed applications for rehearing of D.06-05-041. TURN, working jointly with the Commission’s Division of Ratepayer Advocates (DRA), participated actively in the proceeding,

1 TURN requested $40,786.13.2 Essentially, the utility realizes a gain when it sells property for more than it paid for the property.

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submitting detailed briefs and comments on the proposed decisions and alternates to the decisions. While a few issues remain, D.06-05-041 resolved most of the issues presented in Rulemaking (R.) 04-09-003.

In its initial request for compensation, TURN noted that DRA had taken the “laboring oar” in litigating the issues in the case. Therefore, by ruling dated March 28, 2007, the assigned Administrative Law Judge (ALJ) asked TURN for more information about its claimed hours on the case:

TURN states that DRA took the “laboring oar” on most of their joint submissions, but claims compensation for 138 hours of attorney time and 3.75 hours of expert consultant time. TURN does not provide information that permits us to assess whether its costs were reasonable.

…TURN makes no showing that DRA reasonably required TURN’s participation or expertise in order to adequately advocate its own recommendations on the specified issues. TURN makes no showing that it provided a different perspective than DRA’s, or that its efforts influenced DRA to alter its predisposed position.On April 13, 2007, TURN supplemented its request to answer

the ALJ’s questions. We address its request for compensation, and the supplement, below.Requirements on Awards of Compensation

The intervenor compensation program, enacted in Pub. Util. Code §§ 1801-1812, requires California jurisdictional utilities to pay the reasonable costs of an intervenor’s participation if the intervenor makes a substantial contribution to the Commission’s proceedings. The statute provides that the utility may adjust its rates to collect the

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amount awarded from its ratepayers. (Subsequent statutory references are to the Public Utilities Code unless otherwise indicated.)

All of the following procedures and criteria must be satisfied for an intervenor to obtain a compensation award:

1. The intervenor must satisfy certain procedural requirements including the filing of a sufficient notice of intent (NOI) to claim compensation within 30 days of the prehearing conference (PHC), or in special circumstances at other appropriate times that we specify. (§ 1804(a).)

2. The intervenor must be a customer or a participant representing consumers, customers, or subscribers of a utility subject to our jurisdiction. (§ 1802(b).)

3. The intervenor should file and serve a request for a compensation award within 60 days of our final order or decision in a hearing or proceeding. (§ 1804(c).)

4. The intervenor must demonstrate “significant financial hardship.” (§§ 1802(g), 1804(b)(1).)

5. The intervenor’s presentation must have made a “substantial contribution” to the proceeding, through the adoption, in whole or in part, of the intervenor’s contention or recommendations by a Commission order or decision. (§§ 1802(i), 1803(a).)

6. The claimed fees and costs are reasonable (§ 1801), necessary for and related to the substantial contribution (D.98-04-059), comparable to the market rates paid to others with comparable training and experience (§ 1806), and productive (D.98-04-059).

For discussion here, the procedural issues in Items 1-4 above are combined, followed by separate discussions on Items 5-6.

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Procedural IssuesNo prehearing conference (PHC) in this matter was held.

Ordinarily, a party is required to file a notice of intent to claim intervenor compensation after a PHC. If no PHC conference is held, the intervenor must show in its request for intervenor compensation that it meets the requirements of the intervenor compensation statute. TURN has done so in its request.

Section 1802(b)(1) defines a “customer as A) a participant representing consumers, customers or subscribers of a utility; B) a representative who has been authorized by a customer; or C) a representative of a group or organization authorized pursuant to it articles of incorporation or bylaws to represent the interests of residential or small business customers.”

In this case, TURN is a customer as defined in paragraph C because TURN is a group authorized pursuant to its articles of organization and bylaws to represent and advocate the interests of residential and small commercial customers of electrical, gas, water and telephone utilities in California.

TURN asserts that it meets the financial hardship condition of the intervenor compensation statute through a rebuttable presumption of eligibility, pursuant to § 1804(b)(1), because TURN met this requirement in another proceeding within one year of the commencement of this proceeding (ALJ ruling dated July 27, 2004 in Rulemaking (R.) 04-04-003). TURN therefore qualifies for a ruling of eligibility for compensation on the merits of this pleading and through the rebuttable presumption created by R.04-04-003.

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TURN filed its request for compensation on February 16, 2007, within 60 days of D.06-12-043 being issued.3 In view of the above, we find that TURN has satisfied all the procedural requirements necessary to make its request for compensation in this proceeding.Substantial Contribution

In evaluating whether a customer made a substantial contribution to a proceeding we look at several things. First, did the Commission adopt one or more of the factual or legal contentions, or specific policy or procedural recommendations put forward by the customer? (See § 1802(i).) Second, if the customer’s contentions or recommendations paralleled those of another party, did the customer’s participation materially supplement, complement, or contribute to the presentation of the other party or to the development of a fuller record that assisted the Commission in making its decision? (See §§ 1801.3(f) and 1802.5.) As described in § 1802(i), the assessment of whether the customer made a substantial contribution requires the exercise of judgment.

In assessing whether the customer meets this standard, the Commission typically reviews the record, composed in part of pleadings of the customer and, in litigated matters, the hearing transcripts, and compares it to the findings, conclusions, and orders in the decision to which the customer asserts it contributed. It is then a matter of judgment as to whether the customer’s presentation substantially assisted the Commission.4

Should the Commission not adopt any of the customer’s recommendations, compensation may be awarded if, in the judgment of the Commission, the customer’s participation substantially

3 No party opposes the request.4 D.98-04-059, 79 CPUC2d 628, 653 (1998).

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contributed to the decision or order. For example, if a customer provided a unique perspective that enriched the Commission’s deliberations and the record, the Commission could find that the customer made a substantial contribution. With this guidance in mind, we turn to the claimed contributions TURN made to the proceeding.

TURN claims the following contributions (or lack thereof) to the decisions at issue (as shown in its original compensation request and its April 13, 2007 supplement):

TURN submitted the following pleadings jointly with DRA: joint opening comments on November 3, 2004, joint reply comments on December 8, 2004, joint comments on the Brown Proposed Decision on January 5, 2006, joint comments on the Chong Alternate Proposed Decision (APD) filed April 17, 2006, and joint reply comments on the Chong APD filed on April 24, 2006. TURN states that much of the initial drafting work on these pleadings was done by DRA, but that its work focused on the issues of 1) the theoretical underpinnings of the allocation of the gain on sale between shareholders and ratepayers, 2) the proper allocation for both depreciable and non-depreciable property, and 3) the need for overturning the allocation established in the Redding II case.

TURN also analyzed tax treatment of abandoned plant and major asset exclusion.

TURN did not contribute to the work concerning specific issues related to water utilities.

In its initial showing, TURN outlined the contributions it made jointly with DRA or joint contributions by “ratepayer

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representatives.”5 In virtually every citation to a contribution, TURN cited the joint work of TURN/DRA. It was therefore not possible to determine which work was TURN’s, leading the ALJ to request supplemental information. TURN’s April 13, 2007 response to that request for supplementation contains contentions that we must address before turning to specifics.

TURN states that itnotes the somewhat mixed signals the Commission is sending on the subject of intervenors cooperating with DRA in proceedings where the staff’s positions are likely to overlap at least somewhat with those of intervenors. In other forums the Commission has strongly encouraged such coordination, even to the point of presenting joint witnesses and cross examination of utility witnesses. But if the result of such successful coordination, such as we achieved in the instant proceeding, is an additional requirement of more detailed accounting detailed accounting of the exact nature of TURN’s contribution to the joint pleadings and analysis and an accounting of the total time spent by both TURN and DRA, it is likely that the Commission will see less such efforts.TURN’s concern is misplaced, and ignores the requirements the

intervenor compensation statute places on all intervenors to justify their requests. A party that jointly works with another must show that its own contributions were substantial. TURN did not do this. Its entire compensation request talked about work done by TURN and DRA, and never sorted out the different issues the parties focused on or work they did. TURN and all intervenors must always show that 5 For example, TURN stated, “The contribution of ratepayer advocates is evidenced most explicitly in the section discussing the theoretical justification for allocating gain to ratepayers”; “The Commission soundly rejected the arguments of the utilities, which were rebutted by TURN and DRA, that property ownership entitles the utilities the gain on sale”; “the Commission decided to allocate 100% of the gain/loss from depreciable property sale to ratepayers, a position espoused by TURN and DRA in our comments.” (Emphasis added.)

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their own time and efforts made a substantial contribution, regardless of whether they work alone or with others.

Further, given that DRA is charged by statute to raise ratepayer issues,6 it is not always clear that the additional contribution by a ratepayer representative eligible for intervenor compensation adds value. We recognize that there may be many proceedings where the issues are substantial and division of the workload is most efficient. We also agree that sometimes the force of joint comments may be greater than those contributed by a sole party.

Thus, we reject TURN’s claim that we are discouraging joint action by parties. We encourage it where it makes sense. However, again, intervenors must comply with the statutory requirements and demonstrate substantial contribution.

With these points made, we turn to TURN’s specific claims in the April 13, 2007 supplement. TURN states that it took the lead in drafting the sections concerning tax issues, exceptional cases and abandoned plant; and that it conducted research and formulated the key policy positions concerning the “theoretical underpinnings” of gain on sale allocation, risk theory and allocation of non-depreciable property.

TURN also states that its attorneys and consultants expended the following time on the following specific tasks, and we discuss our decision on each item below:

Mr. Nusbaum spent 31.5 hours conducting research on behalf of TURN and DRA on the history of gain on sale policy in energy and telecom; the distinctions between depreciable and non-depreciable property; the application of gain on sale policies in other states; the economic theory underlying gain on sale allocation; and the

6 See, Pub. Util. Code § 309.5(a).

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Redding II decision. Mr. Nusbaum read over 400 pages of law review articles and utility economics articles concerning these issues and prepared a memo summarizing the research to support joint strategy and positions.

Discussion: This issue was central to the Commission’s decision, and TURN should be compensated for its time.

Mr. Nusbaum spent 14.25 hours on the issue of whether Incumbent Local Exchange Carriers (ILECs) should be permitted to be removed from the proceeding. He researched the current application of gain on sale policies to New Regulatory Framework (NRF) carriers; developed a joint strategy with DRA; and reviewed and edited this section of draft pleadings.

Discussion: The Commission dismissed ILECs from the proceeding. However, it was appropriate for TURN to address the issue as the ILECs made detailed filings on the issue.

Mr. Nusbaum spent 8.5 hours in 2004 in meetings and conference calls to discuss and develop joint positions, as well as in reading and analyzing the pleadings of other parties. Mr. Nusbaum spent 11.75 hours in 2006 preparing for and attending ex parte meetings in which TURN actively advocated on the issue of allocation of the gain on sale of non-depreciable property, and working on comments concerning the alternate proposed decision (analyzing the alternate proposed decision, reviewing and editing comments on the alternate, reviewing the comments of other parties on the alternate proposed decision).

Discussion: This time is reasonable and directly contributed to the outcome of the case. Thus, it is compensable.

Mr. Nusbaum spent approximately 18.25 hours (15 in 2004 and 3.25 in 2006) reviewing and

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editing drafts of joint pleadings and joint comments on proposed decisions.

Discussion: This time is reasonable and directly contributed to the outcome of the case. Thus, it is compensable.

Mr. Nusbaum devoted 1.5 hours to the application for rehearing.

Discussion: This very modest effort is appropriate. Mr. Hawiger spent approximately 14.5 hours

drafting sections of pleadings addressing tax issues and exceptional cases that should not be treated by a general gain on sale rule, including treatment of abandoned plant.

Discussion: The Commission rejected TURN’s abandoned plant claim, but it was appropriate to raise it, and TURN should be compensated for its time. The tax issue was important to the Commission’s final determinations as well.

Mr. Hawiger spent approximately 5 hours in meetings with DRA addressing policy issues, primarily the issue of risk and the allocation of gain on sale on nondepreciable property.

Discussion: The risk and allocation issues were central to the Commission’s decision. Thus, this time is compensable.

Mr. Hawiger spent approximately 11 hours reviewing and editing joint pleadings and 3.5 hours reading the pleadings submitted by other parties.

Discussion: Reviewing pleadings, without more, might not be evidence of a substantial contribution, but given that this review led to important work in the substantive areas the Commission did address, this time was appropriately spent.

Mr. Hawiger spent 17 hours on the compensation request, which was billed at half the normal hourly rate.

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Discussion: Time spent on a reasonable compensation request is compensable at half the hourly rate, as TURN claims here.

Expert Consulting Hours TURN requests compensation for a total of 7.25

hours of time for Mr. William Marcus. Mr. Marcus provided expert advice and drafted pleadings concerning the specific issue of tax treatment of gain on sale proceeds, potential need for exceptional treatment for certain transactions and the historic treatment of abandoned plant.

Discussion: This very modest number of hours is appropriately compensable given that the Commission addressed both the tax and abandoned plant issues and needed various points of view to reach its prescribed outcome.Reasonableness of Requested Compensation

TURN requests $40,786.13 for its participation in this proceeding for work performed in 2004 and 2006, as follows:

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Table 1: Attorney Expense Summary

ATTORNEY Substantive CompensationTotal Hours

Percent Total

     Issue Work   Related      

Claimed

Compensation

Billing Hourly Hours Hours Hours Hours

Period RateExpende

dClaime

dExpende

dClaime

dExpende

dClaime

dMarcel Hawiger 2004 $270 24.00 24.00 24.00 24.00

100.00% $6,480.00

2005 $270 4.75 4.75 4.75 4.75100.00

% $1,282.502006 $280 5.75 5.75 17.00 8.50 22.75 14.25 62.64% $3,990.00

Robert Finkelstein 2004 $395 0.50 0.50 0.50 0.50

100.00% $197.50

Michel Florio 2004 $470 2.50 2.50 2.50 2.50100.00

% $1,175.00

Bill Nusbaum 2004 $365 69.25 69.25 69.25 69.25100.00

% $25,276.25

  2006 $380 17.00 17.00 17.00 17.00100.00

% $6,460.00TOTAL 116.75 108.25 92.72% $38,381.25

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Table 2: Consulting Fee Summary

Expert

Time Period

Hourly Rate

Hours

Total Expenses

William Marcus 2004 195 6.087 $1,185.60

2005 No time billed8 0  2006 210 1.17 $245.70TOTAL 7.25 $1,431.30

Table 3: Direct Expenses

EXPENSE CATEGORY AMOUNTLexis Research $966.24FedEx, Fax and Phone $7.34TOTAL $973.58

$38,381.251,431.30

973.58TOTAL REQUEST $40,786.13

In general, the components of this request must constitute reasonable fees and costs for the customer’s preparation for and participation in a proceeding that resulted in a substantial contribution. The issues we consider to determine reasonableness are discussed below.

7 Adjusted in accordance with Supplemental Information Concerning TURN’s Request for Compensation, Appendix C, filed April 13, 2007.8 In its filing entitled Supplemental Information Concerning TURN’s Request for Compensation, Appendix C, filed April 13, 2007, TURN indicates that Marcus billed no time in 2005. This is a change from its original request.

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Hours and Costs Related to and Necessaryfor Substantial Contribution

We first assess whether the hours claimed for the customer’s efforts that resulted in substantial contributions to Commission decisions are reasonable by determining to what degree the hours and costs are related to the work performed and necessary for the substantial contribution.

We discuss the specifics of TURN’s efforts above, and find that TURN has demonstrated its substantial contribution and justified the time it spent on the proceeding. Especially in its supplement, TURN documented its efforts by presenting a daily breakdown of its hours, accompanied by a brief description of each activity. The hourly breakdown reasonably supports the claim for total hours. Since we find that TURN’s efforts made a substantial contribution to D.06-05-041 and D.06-12-043, even where we did not wholly adopt TURN’s recommendations, we need not exclude from TURN’s award compensation for certain issues.Hourly Rates

We next take into consideration whether the claimed fees and costs are comparable to the market rates paid to experts and advocates having comparable training and experience and offering similar services.

TURN seeks the following hourly rates for its attorneys, and cites, where available, cases that have already adopted those rates. (For William Nusbaum’s 2006 work, TURN requests a rate of $380.00 adopted in D.06-11-009. However, that decision approved a rate of $375.00 – not $380.00 – for Nusbaum’s work in 2006 and we adjust

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TURN’s award accordingly.) Where the Commission has already adopted a rate, we approve it again here, as follows:

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Table 4: TURN Hourly Rates

Attorney 2004 Rate 2005 Rate 2006 RateMarcel Hawiger

$270D.05-04-031

$270D.06-04-029

$280D.06-10-018, p.

39Michel P. Florio

$470D.05-01-029

No time billed in this

year

No time billed in this year

Robert Finkelstein

$395D.05-04-014,

p. 7

No time billed in this

year

No time billed in this year

William Nusbaum

$365D.05-04-014,

p. 7

No time billed in this

year

$3759

D.06-11-009, p. 31

9 Adjusted from $380 claimed in error.

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The Commission has already approved the 2004 and 2006 billing rates for TURN’s expert William Marcus, as follows, and we approve them again here.10

ExpertTime

PeriodHourly Rate

Hours

Total Expenses

William Marcus 2004 195

6.0811 $1,185.60

2005 No time billed12 0  2006 210 1.17 $245.70TOTAL 7.25 $1,431.30

ProductivityD.98-04-059 directed customers to demonstrate productivity by

assigning a reasonable dollar value to the benefits of their participation to ratepayers. The costs of a customer’s participation should bear a reasonable relationship to the benefits realized through their participation. This showing assists us in determining the overall reasonableness of the request.

TURN states that the benefits of its participation in this proceeding cannot be readily quantified as the proceeding addressed only policy going forward. However, we quantified this effort in connection with Aglet Consumer Alliance’s (Aglet) request for compensation in this proceeding.

the most apparent benefit [of D.06-05-041] is ratepayer retention of one half [now 67% in accordance with D.06-12-043] of gains on sale of real property. The Commission rejected utility requests that shareholder keep all such gains. The dollar value

10 D.06-04-029, p. 9, issued on April 13, 2006 in A.04-07-044.11 Adjusted in accordance with Supplemental Information Concerning TURN’s Request for Compensation, Appendix C, filed April 13, 2007.12 According to Supplemental Information Concerning TURN’s Request for Compensation, Appendix C, filed April 13, 2007.

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to ratepayers of this outcome is uncertain, but it could reach millions of dollars in the event a utility sells a single parcel of real property. If one gives Aglet even a small share of the credit for this outcome, the ratepayer benefits of Aglet’s participation in this proceeding will substantially exceed Aglet’s costs. Ratepayers will also gain intangible benefits from the setting of reasonable dollar limits for the adopted rules, and from Aglet’s contributions regarding assets that move in and out of rate base.For the same reasons, we find that TURN‘s participation in this

proceeding was productive. Overall, the benefits of TURN’s contributions to D.06-05-041 and D.06-12-043 justify compensation in the amount requested.Direct Expenses

The itemized direct expenses submitted by TURN include costs for Lexis research and phone bills, and total $ 973.58. The cost breakdown included with the request shows the miscellaneous expenses to be commensurate with the work performed. We find these costs reasonable.

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AwardAs set forth in the tables below, we award TURN $40,701.13:

$ 38,296.2513 Attorney time billed to case$1,431.30 Expert witness time billed to case

$ 973.58 Costs$ 40,701.13 Total award

This rulemaking proceeding affected a broad array of utilities. As such, we find it appropriate to authorize payment of the compensation award from the Commission’s intervenor compensation program fund, as described in D.00-01-020.

Consistent with previous Commission decisions, we order that interest be paid on the award amount (at the rate earned on prime, three-month commercial paper, as reported in Federal Reserve Statistical Release H.15) commencing on May 2, 2007, the 75th day after TURN filed its compensation request, and continuing until full payment of the award is made.

We remind all intervenors that Commission staff may audit their records related to the award and that intervenors must make and retain adequate accounting and other documentation to support all claims for intervenor compensation. TURN’s records should identify specific issues for which it requested compensation, the actual time spent by each employee or consultant, the applicable hourly rate, fees paid to consultants, and any other costs for which compensation was claimed.

13 This reduction to the requested amount reflects the fact that our precedent awards Nussbaum $375 for work in 2005, rather than the $380 TURN claims.

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Waiver of Comment PeriodThis is an intervenor compensation matter. Accordingly, as

provided by Rule 14.6(c)(6) of our Rules of Practice and Procedure, we waive the otherwise applicable 30-day comment period for this decision.Assignment of Proceeding

Michael R. Peevey is the assigned Commissioner and Sarah R. Thomas is the assigned Administrative Law Judge in this proceeding.Findings of Fact1. TURN has satisfied all the procedural requirements necessary to claim compensation in this proceeding.2. TURN made a substantial contribution to D.06-05-041 and D.06-12-043 as described herein.3. TURN requested hourly rates that are reasonable when compared to the market rates for persons with similar training and experience.4. TURN requested related expenses that are reasonable and commensurate with the work performed.5. The total reasonable compensation is $ 40,701.13.6. This proceeding affected a broad array of utilities.7. The appendix to this opinion summarizes today’s award.Conclusions of Law1. TURN has fulfilled the requirements of Pub. Util. Code §§ 1801-1812, which govern awards of intervenor compensation, and is entitled to intervenor compensation for its claimed compensation incurred in making substantial contributions to D.06-05-041 and D.06-12-043.

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2. TURN should be awarded $ 40,701.13 for its contribution to D.06-05-041 and D.06-12-043.3. Consistent with Rule 14.6(c)(6), the comment period for this compensation decision should be waived.4. Today’s award should be paid from the Commission’s intervenor compensation program fund.5. This order should be effective today so that TURN may be compensated without further delay.

O R D E R

IT IS ORDERED that:1. The Utility Reform Network (TURN) is awarded $ 40,701.13 as compensation for its substantial contributions to Decision (D.) 06-05-041 and D.06-12-043.2. Within 30 days of the effective date of this decision, TURN’s award shall be paid from the Commission’s intervenor compensation program fund, as described in D.00-01-020. Payment of the award shall include interest at the rate earned on prime, three-month commercial paper as reported in Federal Reserve Statistical Release H.15, beginning May 2, 2007, the 75th day after the filing date of TURN’s request for compensation, and continuing until full payment is made.

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3. The comment period for today’s decision shall be waived.This order is effective today.Dated July 12, 2007, at San Francisco, California.

MICHAEL R. PEEVEY PresidentDIAN M. GRUENEICHJOHN A. BOHNRACHELLE B. CHONGTIMOTHY ALAN SIMON Commissioners

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APPENDIXCompensation Decision Summary Information

Compensation Decision: D0707007

Modifies Decision?No

Contribution Decision(s): D0605041 and D0612043 Proceeding(s): R0409003Author: ALJ ThomasPayer(s): Intervenor Compensation Program Fund

Intervenor Information

Intervenor Claim Date

Amount Requeste

dAmount Awarded

Multiplier?

Reason Change/

DisallowanceThe Utility Reform Network

June 20, 2006

$40,786.13

$40,701.13

No Failure to justify hourly rate

Advocate Information

First Name

Last Name Type

Intervenor

Hourly Fee

Requested

Year Hourly Fee

RequestedHourly Fee

AdoptedMarcel Hawiger Attorne

yTURN $270 2004 $270

Marcel Hawiger Attorney

TURN $270 2005 $270

Marcel Hawiger Attorney

TURN $280 2006 $280

Michel Florio Attorney

TURN $470 2004 $470

Robert Finkelstein

Attorney

TURN $395 2004 $395

William Nusbaum Attorney

TURN $365 2004 $365

William Nusbaum Attorney

TURN $380 2006 $375

William Marcus Expert TURN $195 2004 $195

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William Marcus Expert TURN $210 2006 $210

(END OF APPENDIX)

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