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 SB 201 Page 2 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 SB 201 Page 3 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 SB 201 Page 4 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 SB 201 Page 5 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 SB 201 Page 6 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