BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 201
                                                                  Page  1

          Date of Hearing:  July 9, 2001

                    ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
                              Roderick D. Wright, Chair
                     SB 201 (Speier) - As Amended:  July 5, 2001

           SENATE VOTE  :  27-10
           
          SUBJECT  :  Public Utilities Commission:  division to represent  
          interest of customers and subscribers.

           SUMMARY  :  This bill deletes the repeal of the provisions in the  
          Public Utilities Code (PU Code) that provide for an independent  
          division within the California Public Utilities Commission  
          (CPUC) chartered with representing public utility consumers in  
          commission proceedings.  Specifically,  this bill  :   

          1)Removes the January 1, 2002 sunset date in Section 309.5 of  
            the PU Code and retains the independent Office of Ratepayer  
            Advocates (ORA) beyond that date.

          2)Provides that the Director of ORA, an appointee of the  
            Governor subject to Senate confirmation, shall be paid a  
            salary equal to that of the five appointed CPUC commissioners.

          3)Transfers one million eight hundred fifty thousand dollars  
            ($1,850,000) from CPUC Reimbursement Account in the General  
            Fund to CPUC Ratepayer Advocate Account for expenditure in  
            2001-02 fiscal year for enhancement of consumer and ratepayer  
            advocacy before CPUC. 

           EXISTING LAW  :  Provides for an independent consumer  
          representative within CPUC consisting of and chartered with:

          1)a director appointed by the governor;

          2)assignment of personnel to the division sufficient to ensure  
            that customer and subscriber interests are fairly represented  
            in all significant proceedings; 

          3)separation of advocacy personnel from any advisory role to any  
            decision maker on the same case or proceeding;

          4)discovery rights inclusive of the division's ability to compel  
            the production or disclosure of any information it deems  








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            necessary to perform its duties from entities regulated by the  
            commission, with a resolution process in place for any  
            objections to such requests by an assigned commissioner, or in  
            the absence of a proceeding, by the president of CPUC;

          5)a separate budget allocation from that of CPUC to be utilized  
            exclusively by the division in the performance of its duties.

           FISCAL EFFECT  :  This bill requires an additional one million  
          eight hundred fifty thousand dollars in the 2001-02 fiscal year  
          budget for staff augmentation.

           COMMENTS  :   

           Current Role of ORA and History of Section 309.5 Creating the  
          Division.
            
           The Office of Ratepayer Advocates was created by statute in 1996  
          and became independent from
          CPUC in January of 1997.  Up to that time a division existed  
          within CPUC representing consumer interests, and the division's  
          budget and personnel were determined by CPUC.  It was determined  
          that a conflict was apparent by having consumer interests  
          represented by a division of a state agency where there was no  
          independence.  Section 309.5 of the PU Code provided for ORA's  
          independence, its separate budget allocation and for the  
          presumption that staffing should be adequate to fairly represent  
          consumer interests in CPUC proceedings.  The enabling language  
          also provided ORA with significant discovery rights before CPUC,  
          but with a check and balance provision in the event that an  
          entity regulated by CPUC objected to providing responses to  
          discovery requests.  In proceedings with an assigned  
          commissioner, objections to ORA discovery requests are to be  
          decided by the assigned commissioner.  Where no proceeding is  
          yet open or prior to assignment of a commissioner, such  
          objections will be resolved by the president of CPUC according  
          to the existing statute.

          Since 1997 ORA participated in proceedings opened by CPUC, by  
          other parties, and in cases initiated by ORA itself.  CPUC has  
          upheld that "ORA shall have discovery rights, as do other  
          parties to the proceeding.  It may also rely on Section 309.5  
          (e)?" (Decision (D.) 01-02-041).  Section 309.5 (e) is the  
          portion of the PU Code which provides ORA broader rights to  
          compel production or disclosure of "any information it deems  








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          necessary to perform its duties", subject to review of any  
          objections by an assigned commissioner or president of CPUC.   
          Finally, Section 309.5 carried a sunset date of January 1, 2002  
          unless extended by statute.  This bill seeks to repeal the  
          sunset and enhance ORA staffing.  There is no opposition to this  
          bill.

           ORA Today.
           
          In its support letter, California State Employees Association  
          (CSEA) expresses its concern "with the gradual phasing out of  
          the Office of Ratepayer Advocates", citing that "Several years  
          ago this office took the brunt of severe budget cuts and has  
          never fully recovered."  CSEA's letter is particularly cogent,  
          as absent this legislation, independent consumer representation  
          disappears at CPUC just as the specter of competition is proving  
          to be a failure in the energy markets and to be virtually  
          non-existent in the local telecommunications market in this  
          state.  Many states actively pursue market abuse prevention and  
          service quality assurances through special consumer advocacy  
          agencies and California would be left far behind most other  
          states regarding utility consumer advocacy without ORA's  
          existence.  In Illinois recent legislation created hundreds of  
          new positions and a special unit of the Attorney General's  
          office specifically to handle telecommunications consumer  
          protection areas (energy consumer protection advocacy already  
          existed there) in the rate de-regulated environment.  

          Market changes in California in gas, electricity and  
          telecommunications have created complex situations for  
          consumers.  There has been a dramatic rise in consumer  
          complaints about market abuse, poor service quality and lack of  
          competition for basic services in the telecommunications area.   
          ORA contributed significantly to a market abuse complaint case  
          raised in 1998 by Utility Consumer Action Network (UCAN), and in  
          the presiding officer's decision in that case (C. 98-04-004),  
          the areas specifically addressed by ORA testimony were upheld.   
          Subsequently, ORA filed two complaints on its own after initial  
          investigation, one dealing with a Prompted Repeat Dialing  
          Service and one dealing with long repair intervals for basic  
          residential telephone service.  In both of these two latter  
          cases, ORA had to independently conduct discovery over initial  
          objections of a regulated utility. 

          CPUC is an administrative agency that formerly handled utility  








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          matters largely through evidentiary rate cases vested with  
          determining both rate levels and service areas.  With rate  
          regulation extremely relaxed for energy and telecommunications  
          markets, the largest areas of concern include market abuse and  
          service quality.  The energy market is dysfunctional by anyone's  
          measure at this stage, and ORA participated in numerous rate and  
          other proceedings for both gas and electric service in recent  
          years, contributing significantly to the outcomes of many cases.  
           On the telecommunications side, in the Prompted Repeat Dialing  
          case ORA intervened after a service was authorized through an  
          informal process at CPUC and a rate increase was granted.  In  
          the course of reviewing internal utility documents, ORA  
          determined and brought forth in the evidentiary proceeding that  
          much of this information had not been disclosed to CPUC in the  
          informal process, including information that demonstrated  
          violation of various PU Code sections.  Absent ORA's existing  
          discovery rights, these violations might never have come to  
          light, despite widespread consumer complaint about the service,  
          including during the period the service was subject to an  
          informal market trial.  Virtually all residential and most small  
          commercial consumers in California are still faced with a  
          monopoly providing them with their basic telephone service and  
          with only one utility offering them gas or electric service.   
          The types of market abuse and service neglect these market  
          structures can facilitate render independent consumer  
          representation a desirable necessity in CPUC proceedings.

           SB 201 and ORA Tomorrow.
           
          While ORA advocates in other ways, it is largely vested with a  
          responsibility to adequately and fairly represent utility  
          consumer interests in evidentiary proceedings.  This bill  
          ensures ORA's continued ability to perform such advocacy by  
          eliminating the sunset provision.  This bill seeks to clarify  
          the legislative intent behind Section 309.5 by eliminating  
          language that has been interpreted by some entities to limit  
          ORA's role to open CPUC proceedings.  Since CPUC has upheld  
          ORA's ability to file complaints and initiate proceedings in  
          various decisions and orders, this change is intended to clarify  
          the statute to prevent further misinterpretation.  This  
          clarification is similar to that proposed in AB X2 57 (Wiggins)  
          for Section 11652 of the PU Code relating to municipal utility  
          district voting requirements, which was also subject to numerous  
          interpretations.  It is sometimes claimed that ORA's ability to  
          open a proceeding can competitively disadvantage one competitor  








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          versus another, but that is actually a function of whether or  
          not both entities are regulated.  Especially in the complex  
          telecommunications market, the term "competitor" is sometimes  
          misused to describe unregulated market participants with  
          virtually no market share in the regulated market.  ORA's  
          discovery rights extend only to utilities regulated by CPUC.  

          Sempra Energy, in its opposition letter, cites to the deletion  
          of "in commission proceedings" in describing ORA's advocacy role  
          in Section 309.5 of the PU Code, as a concern that ORA may  
          advocate independent of the Commission before other regulatory  
          bodies, such as Federal Energy Regulatory Commission (FERC) and  
          Federal Communications Commission (FCC).  Currently, ORA does  
          not participate in proceedings before these federal regulatory  
          agencies and currently ORA cannot appeal CPUC decisions in the  
          courts.  The author's intent with the language change was to  
          clarify ORA's discovery rights, whether or not a CPUC proceeding  
          was open, not to expand ORA's role into the federal arena beyond  
          its current participation.   

          In addition to clarifying the existing role of ORA and repealing  
          the sunset of the statute providing ORA's charter, this bill  
          also seeks to augment staffing in ORA and to provide that the  
          director's salary is commensurate with those of the five CPUC  
          commissioners.  These last two provisions go to ORA's ability to  
          fairly represent consumer interests.  ORA's staff today is  
          significantly smaller than the former internal CPUC division  
          that represented consumer interests.  ORA's ability to obtain  
          and retain adequate, skilled staff to represent consumer  
          interests on such complex matters as utility costing,  
          ratemaking, market abuse and service quality will be better  
          enabled by the additional staffing this bill's funding would  
          provide.  Also, since ORA is an independent office with its  
          director appointed by the Governor subject to Senate approval  
          just as CPUC commissioners are appointed, it is reasonable that  
          ORA's director should have a commensurate salary.  ORA addresses  
          all utility areas CPUC addresses, with the exception of  
          transportation matters, and its director must have significant  
          technical expertise in addition to managerial skills to  
          effectively lead the office.

           Staff recommends:

           ORA performs a necessary consumer advocacy role unique by virtue  
          of its independence and its position as a state office.  The  








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          change in regulatory focus from rate-setting to market-based  
          regulation has demonstrated a need to prevent market abuse and  
          deteriorated service quality.  ORA is uniquely positioned beyond  
          the interests of consumer groups with stated constituencies and  
          private funding requirements as an independent state office.   
          The continuation of ORA's role will provide a much needed  
          benefit to hard hit utility consumers in this state and the  
          staff augmentation provided for this in bill will best serve  
          those long term consumer interests.

          The author may wish to clarify that deleting the "in commission  
          proceedings" provision from Section 309.5, it is not intended to  
          enable ORA to participate in proceedings before other regulatory  
          bodies or the courts, except to the extent ORA is a party to a  
          proceeding appealed or otherwise brought before the additional  
          body as the result of a CPUC proceeding.  

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Office of Ratepayer Advocates (ORA)
          The Utility Reform Network (TURN)
          Utility Consumer Action Network (UCAN)
          California State Employees Association (CSEA)
           
            Opposition 
           
          Sempra Energy (unless amended)


           Analysis Prepared by :    Kelly Boyd / U. & C. / (916) 319-2083