L/mal Date of IssuanceDecember 5, 2017

Decision 17-11-038 November 30, 2017

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Investigation on the Commission’s Own Motion Into the Planned Purchase and Acquisition by AT&T Inc. of T-Mobile USA, Inc., and its Effect on California Ratepayers and the California Economy

Investigation 11-06-009(Filed on June 9, 2011)

ORDER MODIFYING DECISION (D.) 17-04-007 AND DENYING REHEARING OF D.17-04-007, AS MODIFIED

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2011, AT&T Inc. (“AT&T”) and Deutsche Telekom AG (T-Mobile

USA, Inc.’s parent company “T-Mobile”) filed applications with the Federal

Communications Commission (“FCC”) seeking FCC consent to transfer control of the

licenses and authorizations held by T-Mobile USA, Inc. (“T-Mobile”) and its subsidiaries

to AT&T.

On June 9, 2011, the Commission issued an Order Instituting Investigation

(I.)11-06-009 (or “OII”) into the proposed acquisition by AT&T1 of all the issued and

outstanding shares of capital stock of T-Mobile,2 which is the direct and/or beneficial

owner of California telecommunications utility T-Mobile West Corporation.

(I.11-06-009, p. 1.)3 The OII named New Cingular Wireless PCS, LLC (“New

1 AT&T is the parent and/or beneficial owners (through various intermediary corporations) of California telecommunications utilities Pacific Bell d/b/a AT&T California, and New Cingular Wireless PCS, LLC.2 T-Mobile USA, Inc. is a fully-owned subsidiary (through multiple intermediate corporations) of Deutsche Telekom AG, an Aktiengesellschaft organized under the laws of the Federal Republic of Germany (Seller).

3 The Commission expressed its concern about this proposed acquisition, commonly referred to as a merger, “because the two companies, through their California subsidiaries, would have a combined total of approximately 20 million California wireless telephone and data customers,

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Cingular”) along with its affiliated wireless entities,4 and T-Mobile West Corporation as

Respondents.

The purpose of the OII was to investigate, gather, and analyze information

relevant to the proposed merger to determine whether the merger would have adverse

effects on competition and customer service in California, and if so, whether mitigation

measures were warranted as a condition of regulatory approval. (I.11-06-009, p. 3)5

Because the Commission expected the FCC to complete its analysis of the merger before

year-end 2011, the Commission set an expedited schedule for parties to conduct

discovery, review documents provided by the merger proponents, attend workshops, and

file comments in order to complete its merger analysis before the end of 2011.6

(I.11-06-009, p. 24.) 7 The OII stated the Commission’s intent to “complete this inquiry in

a manner sufficiently timely to provide comment to the FCC” before the FCC review

closed. (I.11-06-009, p. 16.)

Of importance, the OII invited other parties, including intervenors, to participate in

the OII proceeding. (I.11-06-009, p. 24.) 8 Several parties representing consumer groups

participated in the proceeding including The Utility Reform Network (“TURN”) and the

and over 47% of the California wireless market. (I.11-06-009, p. 1.) Further, the Commission noted that the merger could “have left the affiliates of California’s two largest incumbent local exchange carriers (“ILECs”), AT&T California and Verizon California Inc., with over 77% of the California wireless telephone market (voice and data), an increase from their current 65% share. (I.11-06-009, pp. 1-2.)4 AT&T Mobility Wireless Operations Holdings Inc. (U3021C), Santa Barbara Cellular Systems, Ltd. (U3015C) and AT&T Mobility Wireless Operations Holdings, LLC (U3014C).5 The OII pointed out that in addition to controlling the largest wireless carriers in California, the ILECs and their wireline affiliates also control most of the “backhaul” or “special access” facilities (between the cell tower and the local exchange carrier’s central office or other switching location) on which wireless telecommunications services, including those provided by the other wireless competitors (Sprint/Nextel, MetroPCS, and Cricket, for example) depend. Hence, if the merger was completed, there would have been a smaller pool of independent backhaul purchasers, with potentially less buying power. The OII specified that it would examine merger-specific effects on competition and service, including backhaul and special access. (I.11-06-009, pp. 1-2. 6 See OII Schedule, I.11-06-009, pp. 16-17.7 See also I.11-06-009, p. 25 [Ordering Paragraph 4], and p. 27 [Ordering Paragraph 18].8 See also I.11-06-009, p. 25 [Ordering Paragraph 4], and p. 27 [Ordering Paragraph 18].

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Center for Accessible Technology (“CforAT”). As required in the OII and consistent

with subsequent rulings, the Respondents filed with the Commission, on an ongoing

basis, all information provided to the FCC in support of their merger application. All

parties, including the intervenors, were provided with several opportunities to provide

information and analysis on the proposed merger in response to the OII’s questions, data

requests contained in the OII,9 and in response to subsequent rulings.10

In addition, parties filed opening comments on the issues described in the OII on

July 6, 2011, and most parties also provided factual showings through declarations

attached to their opening comments, as authorized in the OII. Parties’ reply comments

and accompanying factual declarations required in the OII were filed on August 29, 2011.

Parties filed additional information, comments, and briefs consistent with ALJ rulings

issued on July 19, 2011, August 11, 2011, and November 16, 2011.11

The parties spent considerable time developing a record related to respondents’

products, services, pricing, outreach, facilities, and other issues upon which the

Commission could base its comments to the FCC. In order to participate effectively in

the OII, the parties spent a considerable amount of time reviewing the vast amounts of

data and documents filed by the merger proponents throughout the summer and fall of

2011. For example, TURN and its expert witness expended a significant amount of time

and a great deal of effort analyzing and understanding the merger proponents’ complex

economic and engineering computer models submitted to the FCC in support of their

transaction. 12 Several parties, including TURN, Greenlining, DRA, and others provided

panel members for the Commission’s workshops in July 2011, and these and many other

9 I.11-06-009, Appendices A and B. 10 See Order Instituting Investigation on the Commission’s Own Motion Into the Planned Purchase and Acquisition by AT&T Inc. of T-Mobile USA, Inc., and its Effect on California Ratepayers and the California Economy – Decision Dismissing Complaint [D.12-08-025] (2017), at p. 5.All citations to Commission decisions are to the official pdf versions which are available on the Commission’s website at: http://docs.cpuc.ca.gov/DecisionsSearchForm.aspx.11 D.12-08-025, at p. 7.12 D.12-08-025, at p. 10.

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parties, including CforAT, attended and participated in those workshops, for example by

submitting questions for panel members.13 In total, the parties made more than 250

filings in the proceeding, including detailed analysis of data provided by the merger

proponents and others, in order to inform their responses to the merger proposal and

respond to Commission requests.

On August 31, 2011, the Department of Justice filed an antitrust lawsuit in the

U.S. District Court for the District of Columbia, to prevent AT&T from acquiring

T-Mobile.

On December 21, 2011, AT&T and T-Mobile filed a motion to dismiss the OII as

moot stating that AT&T had agreed with Deutsche Telekom AG to end its bid to acquire

T-Mobile. Therefore, respondents asserted there was no longer any reason for the OII to

remain open.14

On August 23, 2012, the Commission issued D.12-08-025 granting respondents’

motion to dismiss the investigation as moot.15 In D.12-08-025, the Commission affirmed

all rulings by the assigned ALJ and Commissioner, including those made by electronic

mail, and denied all motions filed in the proceeding not previously ruled upon.16 Of

importance, the Commission stated that it had the authority to make decisions, even after

a particular issue becomes moot, based upon the Commission’s independent obligation to

enforce the law regardless of whether an outside complainant brings forward a claim.17

13 D.12-08-025, at p. 10. 14 D.12-08-025, at pp. 8-9. 15 D.12-08-025, at p. 1.16 D.12-08-025 [Ordering Paragraph 3] p.16; see also D.12-08-025, p. 11. 17 D.12-08-025, at p. 9.

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The Commission acknowledged the work done by the parties to the proceeding18 and

stated that requests for intervenor compensation were appropriate.19

On July 11, 2016, both TURN and CforAT each filed timely claims for intervenor

compensation. Thereafter, in D.13-05-031, the Commission awarded TURN

$255,944.03 for making a substantial contribution to the OII proceeding and D.12-08-

025.20 In D.14-06-026, the Commission awarded CforAT $20,246.82 for making a

substantial contribution to the OII proceeding and D.12-08-025.21

New Cingular timely applied for rehearing on both decisions alleging that neither

TURN nor CforAT could have made a substantial contribution to D.12-08-025, as

defined in Public Utilities Code section 1802(i),22 because the decision did not adopt any

of the intervenors’ contentions or recommendations in a final decision on the merits.

On December 18, 2014, the Commission denied the rehearing applications in

D.14-12-085 (“Rehearing Decision”). The Commission found that there was a conflict

between the legislative intent set forth in section 1801.3(b), which states that the

intervenor compensation statutes should be “administrated in a manner that encourages

the effective and efficient participation of all groups that have a stake in the public utility

18 D.12-08-025 discusses the extensive “work and effort by the parties to review the merger proponent’s transaction…” (D.12-08-025, at p. 9.) These efforts included: reviewing respondents’ voluminous FCC filings which were also required to be filed at the Commission on an ongoing basis; reviewing relevant portions of other parties’ FCC filings, which the other parties had the option of filing with the Commission; providing information and analysis on the proposed merger in response to various questions in the OII and subsequent rulings; participating in many workshops with panel presentations, reviewing the merger proponents’ response to extensive data requests and filing comments on the issues presented. (Id. at pp. 5-7.) “Most parties also provided factual showings through declarations attached to their opening comments, as authorized in the OII.” (Id. at pp. 7 & 15 [Finding of Facts (“FOF”) 6 and 7].) 19 In this case, the Commission initiated the examination of the proposed merger as part of our responsibility to protect California customers. The former merger proponents moved to dismiss this proceeding after approximately six months of concentrated effort to evaluate the proposed transaction, undertaken in good faith by Commission staff and parties participating in this proceeding. Given the advanced stage of the proceeding at the time the respondents abandoned the proposed transaction and requested dismissal, it is reasonable for the Commission to acknowledge the work done by parties to this proceeding, and to explicitly state that requests for intervenor compensation are appropriate. (D.12-08-025, at pp. 9-10.)20 TURN requested $257,376.26, but was awarded $255,944.03 after disallowances.21 CforAT requested 23,014.17, but was awarded $20,286.42 after disallowances.22 Subsequent section references are to the Public Utilities Code, unless otherwise noted.

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regulation process,” and section 1802(i), which defines substantial contribution. Hence,

the Commission harmonized the conflicting statutes in a manner that accommodated the

unusual circumstances of no decision on the merits, apparently not envisioned by the

Legislature, thereby advancing the underlying purpose of the intervenor compensation

program.

New Cingular then petitioned for writ of review of both decisions at the California

Court of Appeal, First Appellate District, Division Four. Relying on section 1802(i),

New Cingular argued that because D.12-08-025 was not on the merits and did not adopt

any contention or recommendation of TURN and/or CforAT, the Commission was

foreclosed from awarding intervenor compensation. In its Answer, the Commission

argued that it lawfully looked to the language of the intervenor compensation statutes,

ascertained the legislative intent, and harmonized a conflict between section 1801.3(b)23

and section 1802(i) in order to avoid an absurd result that would be contrary to the

legislative intent.

On April 19, 2016, the Court of Appeal issued its decision in New Cingular

Wireless PCS, LLC et al., v. Public Utilities Commission (2016) 246 Cal.App.4th 784

(“New Cingular Wireless”). In the decision, the Court agreed with the Commission’s

analysis of the intervenor compensation statutes stating that “[f]or many decades, the

CPUC has taken the position it has discretion to award intervenor compensation in

proceedings that end without a decision on the merits, and the awards to TURN and

CforAT here are consistent with that long-standing position. More importantly, the

awards are consistent with the text of Article 5 and with our reading of legislative intent.”

(New Cingular Wireless, supra, 246 Cal.App.4th at p. 821.) The Court also found that the

record contained ample support for the awards to TURN and CforAT. (Ibid.)

However, the Court disagreed with the Commission’s legal rationale in Rehearing

Decision (D.14-12-085) that there was a conflict between section 1802(i) and section

1801.3(b) that needed to be harmonized. Not only did the Court find this rationale to be 23 Section 1801.3 (b): The provisions of this article shall be administered in a manner that encourages the effective and efficient participation of all groups that have a stake in the public utility regulation process.

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inconsistent with the Commission’s rationale in prior decisions that awarded intervenor

compensation when a proceeding ends without a decision on the merits, but unnecessary

stating “the Legislature not only agreed with the CPUC’s view that intervenor

compensation may be awarded on a discretionary basis in cases that resolve short of the

merits, but more than that, delegated to the CPUC the authority to “fill in the gaps” in

Article 5 in the course of administering it based on express policy guidance in the

statute.” (New Cingular Wireless, supra, 246 Cal.App.4th at pp. 816-817.) Hence, the

Court vacated both intervenor compensation decisions (D.13-05-031 and D.14-06-026),

and the Rehearing Decision (D.14-12-085), without prejudice, to reinstatement of the

awards, in the same or different amounts, on grounds consistent with its opinion. (Id., at

p. 821.)

On June 10, 2016, the Commission ruled that TURN and CforAT should re-file

their claims for intervenor compensation in light of New Cingular Wireless. Pursuant to

this ruling, TURN and CforAT re-filed their claims on July 11, 2016 requesting the same

amounts that were awarded in the vacated decisions.

On July 26, 2016, AT&T filed its response alleging “TURN and CforAT

inappropriately seek an award of all their costs, while the Court’s decision makes clear

they may recover at most those costs related to their preparation or presentation of some

position or contention that was adopted or affirmed by the Commission in its final

decision.”24

On August 2, 2016, TURN and CforAT filed a reply to AT&T’s response

asserting that AT&T’s position is indistinguishable from its prior argument that the Court

of Appeal rejected; namely, that intervenors could not meet the “substantial contribution”

requirement in a proceeding that is not resolved on the merits.25

On April 12, 2017, the Commission issued D.17-04-007 (Decision on Remand

Granting Compensation to TURN and CforAT for Substantial Contributions to D.12-08-

24 AT&T’s Response to the Refiled Requests for Intervenor Compensation of TURN and Cfor AT (7/26/16), p. 2.25 TURN and CforAT’s Reply to Response of AT&T to Refiled Requests for Intervenor Compensation (8/2/16), p. 6.

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025). D.17-04-007 (or “Decision”) reconsidered the claims in light of the whole record

of I.11-06-009, the remand from Court of Appeal, and the post-remand filings of TURN,

CforAT, and New Cingular. In D.17-04-007, the Commission conformed its legal

rationale to that of prior decisions, awarded the same amounts of compensation awarded

to TURN and CforAT as the vacated decisions, and explained how these awards follow

logically from the letter and the spirit of the governing statutes and Commission

precedent, as well as the guidance provided in New Cingular Wireless” (D.17-04-007, p.

5.)

On May 12, 2017, AT&T filed an application for rehearing of D.17-04-007

alleging that the Decision commits legal error by (1) not complying with section 1802(i)

and the Court’s New Cingular Wireless decision, which AT&T alleges makes clear that

the Commission can award intervenor compensation only for the costs of preparing and

presenting contentions or recommendations that were adopted in an order or decision;

(2) D.17-04-007 impermissibly ignores the statutory language and the Court’s ruling;

(3) the Allen/Warner and MCI decisions do not support the Decision; and (4) that “unique

circumstances” are not sufficient to award intervenor compensation. On May 30, 2017,

TURN and CforAT filed a joint response to AT&T’s rehearing application.

II. DISCUSSIONA. AT&T’s Misinterprets the Court of Appeal’s Holding In New Cingular

Wireless And Much Of The Discussion In Support Of That HoldingIn its rehearing application, AT&T alleges that the Commission committed legal

error in D.17-04-007 by failing to follow the requirements of section 1802(i)26 and the

26 Former section 1802(i) is now section 1802(j). (Amended by Stats. 2016, Ch. 808, Sec. 9. (SB 512) Effective January 1, 2017.) For consistency with the Court of Appeal and parties’ references to former section 1802(i), we will continue to refer to section 1802(i) in this analysis. The amendments did not make substantive changes to the language. Section 1802 (j) states as follows:  

Substantial contribution” means that, in the judgment of the commission, the customer’s presentation has substantially assisted the commission in the making of its order or decision because the order or decision has adopted in whole or in part one or more factual contentions, legal contentions, or specific policy or procedural recommendations presented by the customer. Where the customer’s participation has resulted in a substantial

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Court of Appeal’s decision in New Cingular Wireless. AT&T argues that the Court’s

decision holds “there remains an irreducible statutory requirement that some Commission

“order or decision” adopt the intervenor’s contentions or recommendations in whole or

part.” (Rhg. App., pp. 2-3 citing to New Cingular Wireless, supra, 246 Cal.App.4th at p.

819). AT&T also argues that having adopted some procedural recommendation of the

intervenor, “the Commission may award compensation only for the reasonable costs an

intervenor incurred in preparing or presenting whatever contentions or recommendations

the Commission actually adopted in some order or decision.” (Rhg. App., pp. 3 & 7.)

AT&T asserts that “[t]he Court emphasized this point as the key issue for remand,

explaining that Section 1802 (i) “plainly limits[s] the awardable compensation to ‘all

reasonable advocate fees, reasonable expert fees, and other reasonable costs incurred by

the customer in preparing or presenting that contention or recommendation.” (Rhg. App.,

pp. 2-3, citing to New Cingular Wireless, supra, 246 Cal.App.4th at pp. 820-821.)27

As discussed below, AT&T’s overly literal and narrow interpretation of the

Court’s decision is wrong. First, AT&T’s arguments ignore the Court’s broader

discussion, including, but not limited to, the Court’s analysis of the Legislature’s intent

for the Commission to award intervenor compensation on a discretionary basis in cases

that resolve short of a decision on the merits, to fill in the gaps in Article 5 in the course

of administering it based on express policy guidance in the statute, and case by case

contribution, even if the decision adopts that customer’s contention or recommendations only in part, the commission may award the customer compensation for all reasonable advocate’s fees, reasonable expert fees, and other reasonable costs incurred by the customer in preparing or presenting that contention or recommendation.

27 As discussed in Section II.C of the analysis below, the Court did not remand the orders due to lack of ample support in the record for the compensation awards to TURN and CforAT - the Court remanded the orders because it found that “[the Commission’s] reasoning departed materially from the rationale we see in the long line of prior [Commission] decisions awarding intervenor compensation in cases resolved without a decision on the merits, which tends to undermine one of the key factors calling for deference in this case—the longevity and enduring consistency of the agency interpretive position under review.” (New Cingular Wireless, supra, 246 Cal. App. 4th at p. 819.)

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decision making by the Commission as the mode of administratively implementing

Article 5.28

Second, AT&T’s allegations of legal error in D.17-04-007 appear to depend

exclusively upon the following paragraph in the New Cingular Wireless decision.

As we construe Article 5, so long as the advocacy of an intervenor claiming compensation contributes to a CPUC proceeding by "assist[ing] the commission in the making of" any "order or decision" (§ 1802, subd. (i)) and that "order or decision" is part of the "final" resolution of the proceeding (§ 1804, subds. (c) & (e))--whether or not the proceeding is resolved on the merits--then the CPUC may "determine[]" whether in its "judgment" (§§ 1801.3, subd. (d), 1802, subd. (i)), the intervenor's contribution was "substantial" enough to merit an award of compensation (§ 1803, subd. (a)). In this case, having made a properly supported finding that some position taken by TURN or CforAT was adopted in one or more of the many preliminary “order[s] or decision[s]” it affirmed as part of its final disposition of Docket No. I11-06-009, it was within the CPUC’s discretion to conclude that the “substantial contribution” test was met. But that discretion was not unlimited. It was properly exercised only within the confines of Article 5, while respecting the limits of the statutory scheme. Here, for example, to the extent the awards to TURN and CforAT were made based upon interim “procedural recommendations” or for adoption of a contention only “in part,” section 1802, subdivision (i) plainly limited the awardable compensation to “all reasonable

28 As the Court noted: “Our review of the statutory history gives us ample reason to conclude that the Legislature not only agreed with the CPUC’s view that intervenor compensation may be awarded on a discretionary basis in cases that resolve short of a decision on the merits, but more than that, delegated to the CPUC the authority to “fill in gaps” in Article 5 in the course of administering it based on express policy guidance in the statute. In enacting Article 5 in 1984, the Legislature confirmed the CPUC’s power to address intervenor compensation on its own, and then, in 1992, gave the CPUC explicit policy criteria in section 1801.3, subdivision (b) to guide Article 5’s administration. In light of this history, we conclude that the Legislature has expressly conferred power on the CPUC to “ ‘fill up the details’ ” of the statutory scheme. (citation omitted.)” (New Cingular Wireless, supra, 246 Cal. App. 4th at pp. 816-817.) Further, the Court stated: “Because the purpose of Article 5 was to reinforce and then supplant the CPUC’s previously issued regulations governing case-by-case adjudication of entitlement to intervenor compensation, the Legislature appears to have contemplated that case-by-case decision making by the CPUC would be the mode of administratively implementing Article 5.” (Id. at p. 818.)

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advocate’s fees, reasonable expert fees, and other reasonable costs incurred by the customer in preparing or presenting that contention or recommendation. (Italics added.)

(New Cingular Wireless, supra, 246 Cal. App. 4th at p. 819.)

Relying on the language set forth above, AT&T argues that the Court’s decision

holds that there is a statutory requirement that some Commission “order or decision”

adopt the intervenor’s contentions or recommendations in whole or part.” (Rhg. App.,

pp. 2-3 citing to New Cingular Wireless, supra, 246 Cal.App.4th at p. 819). AT&T

further argues that, in this case, having adopted some procedural recommendation of the

intervenor, “the Commission may award compensation only for the reasonable costs an

intervenor incurred in preparing or presenting whatever contentions or recommendations

the Commission actually adopted in some order or decision.” (Rhg. App., pp. 3 & 7.)

AT&T’s argument appears to depend upon the Court’s statement that “[h]ere, for

example, to the extent the awards to TURN and CforAT were made based upon interim

“procedural recommendations” or for adoption of a contention only “in part,” section

1802, subdivision (i) plainly limited the awardable compensation to “all reasonable

advocate’s fees, reasonable expert fees, and other reasonable costs incurred by the

customer in preparing or presenting that contention or recommendation. (Italics

added.)” (New Cingular Wireless, supra, 246 Cal. App. 4th at p. 819.) AT&T interprets

this language to mean that the Commission does not have authority to award

compensation to intervenors for substantive contributions that were not specifically

adopted in some order or decision. (Rhg. App., p. 4.)

AT&T’s interpretation of the above paragraph is wrong and ignores the Court’s

discussion of prior Commission decisions in proceedings that ended without a final

decision on the merits, discussed below. As we understand the Court’s language, the

Court was simply stating that section 1802 (i) limits awardable compensation for

procedural recommendations or for adoption of a contention only in part to all reasonable

advocate’s fees, reasonable expert fees, and other reasonable costs incurred by TURN

and CforAT in preparing or presenting that contention or recommendation. The Court

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was not stating that the Commission may not award TURN and CforAT compensation

for substantive contributions that were not adopted of affirmed in an order (such as a

procedural ruling) or decision.

In New Cingular Wireless, the Court provided a rather extensive review of prior

Commission decisions awarding intervenor compensation when a proceeding ends

without a decision on the merits29 stating, in pertinent part, as follows:

The CPUC has consistently ruled since 1981 that it has discretion to award intervenor compensation in cases that end without a decision on the merits, but its rationale has evolved over time. Prior to 1992, as illustrated by Allen/Warner itself, the CPUC took the position that there is a discretionary “exception” to the requirement of contribution to an “order or decision” based on vague notions of fairness and equity. [see fn. 26 omitted.] Following the 1992 Amendments [30], as illustrated by MCI [31], the CPUC began to ground its authority to award intervenor compensation in such cases on a textual reading of the statutory definition of “substantial contribution,” supported by a policy rationale founded expressly on section 1801.3.

(New Cingular Wireless, supra, 246 Cal.App. 4th at p. 815, fn. 27.)32

29 New Cingular Wireless, supra, 246 Cal. App. 4th at pp. 815-816, fn.’s 25-28.30 In response to a report of the California Auditor General entitled The California Public Utilities Commission Can Improve Aspects of its Program to Compensate Intervenors (1992), the Legislature passed Assembly Bill No. 1975 (1991-1992 Reg. Sess.) in August 1992 substantially updating Article 5 with a set of amendments (the 1992 Amendments). The focus of AB 1975 was to revise Article 5 so that, implementing it going forward, the Commission could achieve the Legislature’s original objective of encouraging broad public input in Commission proceedings by creating stronger incentives for intervenors to participate.31 MCI [D.02-07-030], supra, 2002 Cal. PUC Lexis 438. 32 New Cingular Wireless, supra, 246 Cal.App. 4th at p. 815, fn. 27: See Application of Southern California Edison Company for Approval of Agreements to Sell Its Interests in Four Corners Generating Station and Palo Verde Nuclear Generating Station [D.02-03-035] (2002) [“Failing to award compensation in these circumstances . . . could only chill participation by such groups in the public utility regulation process, an outcome distinctly at odds with Pub. Util. Code § 1801.3(b).”]; Opinion on TURN’s Request for Intervenor Compensation in Application 99-03-014 of Pacific Gas and Electric Company to Revise its Electrical Marginal Costs, Revenue Allocation and Rates at the End of the Rate Freeze [D.03-05-029] (2003), at pp. 4 & 6 [“Denying any compensation in a proceeding that is prematurely terminated for reasons that are not reasonably foreseen and are beyond [the intervenor’s] control” unjustifiably increases the risk that intervenors will sustain unreimbursed costs associated with public participation]; D.03-06-065, supra, at p. 8 [Explaining that “[the Commission] believe [its] interpretation of the

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The Court then drew a parallel between MCI and the instant case:

MCI was a case much like this one, where the impact the intervenors had in an aborted merger review proceeding was reflected in a series of procedural victories. In finding that the intervenors had established that they made a “substantial contribution” despite the withdrawal of the proposed merger and the dismissal of the proceeding on mootness grounds, the CPUC explained:

A party may make a substantial contribution to a decision in a number of ways. It may offer a factual or legal contention upon which the Commission relies in making a decision, or it may advance a specific policy or procedural recommendation that the ALJ or the Commission adopts. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt the party’s position in total. The Commission has provided compensation even when the position [on the merits] advanced by the intervenor has been rejected.

(New Cingular Wireless, supra, 246 Cal.App.4th at p. 815, citing MCI[D.02-07-030] at p. 9, citing San Luis Obispo Mothers for Peace,[D.89-03-063].)

In New Cingular Wireless, the Court notes that in the MCI decision, the

Commission explained from a policy standpoint that “the fact that the merger was called

off should not militate against an award of compensation. If we denied compensation for

substantial efforts on transactions that -- through no fault of the intervenor -- were not

consummated, we would discourage Intervenors such as TURN, UCAN, and

Greenlining/LIF from participating in such proceedings.” (MCI [D.02-07-030] at p. 9.)

However, the Court points out that the MCI decision was not purely policy-based: “The

CPUC anchored its reasoning directly in the statutory text, supporting its core rationale—

that an interim procedural contribution can be just as significant as a substantive

contribution on the merits, and that the final outcome of the proceeding does not

statute accommodates unusual circumstances not envisioned by the Legislature and advances the underlying purposes of the intervenor compensation program,” and citing Pub. Util. Code, § 1801.3, subd. (b), which requires that the statute “be administered in a manner that encourages the effective and efficient participation” by all stakeholders].

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necessarily matter—with citations to the statutory definition of “substantial contribution.”

(New Cingular Wireless, supra, 246 Cal. App. 4th at p. 816; emphasis added.)33

Hence, the Court referred to MCI, and other prior Commission decisions cited to

in footnote 27, as examples of where the Commission employed the correct legal

rationale in cases that end without a final decision on the merits by grounding its

authority to award intervenor compensation on a textual reading of the statutory

definition of “substantial contribution,” supported by a policy rationale founded expressly

on section 1801.3.34

Moreover, the Court’s discussion of MCI, and the other post-1992 Commission

decisions the Court cites to in footnote 27, demonstrates that AT&T’s argument that the

Commission may award compensation only for the reasonable costs an intervenor

incurred in preparing or presenting whatever contentions or recommendations the

Commission actually adopted in some order or decision is wrong. (Rhg. App., pp. 3, 7.)

In MCI, and the other post-1992 Commission decisions the Court cites to in

footnote 27 (with the exception of D.03-06-065) the Commission only adopted or

affirmed one procedural recommendation of the intervenors in a ruling or decision. Yet,

the Commission awarded all or nearly all of the requested compensation in each of those

decisions by correctly grounding its authority to award intervenor compensation on a

textual reading of the statutory definition of “substantial contribution” (section 1802(i))

supported by a policy rationale founded expressly on section 1801.3 (that the statute be

administered in a manner that encourages the effective and efficient participation by all

stakeholders).35

33 New Cingular Wireless, supra, 246 Cal. App. 4th at p. 816, fn. 28: (See MCI [D.02-07-030], supra, at pp. 8-9; Opinion on TURN’s Request for Intervenor Compensation in Application 00-01-009 of Southern Cal. Edison [D.02-08-061] (2002), at pp. 3, 5 & 7 [where CPUC merely adopted a procedural recommendation by intervenor, the CPUC awarded compensation, citing § 1802, former subd. (h), now subd. (i)].) 34 Section 1801.3(b): The provisions of this article shall be administered in a manner that encourages the effective and efficient participation of all groups that have a stake in the public utility regulation process. 35 Application of Southern California Edison Company for Approval of New Rates To Be Implemented At The End Of The Rate Freeze Period And Other Requested Relief [D.02-08-061] (2002), where the Commission only adopted one procedural recommendation of

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Nothing in the New Cingular Wireless decision indicates that the Court found fault

with any of these non-merits intervenor compensation decisions. Nor did the Court

express any concern about the Commission having awarded all or nearly all of the

requested compensation in each of those earlier decisions. In fact, the Court indicated

that had the Commission relied on legal analysis more closely comporting to that which

appeared in the prior decisions discussed above, there would have been no need for a

remand.36

TURN in its final decision. Edison proposed to withdraw the application, or in the alternative, that the application be dismissed without prejudice. TURN recommended the latter of the two Edison proposed alternatives, and the Commission dismissed Edison’s application without prejudice. The Commission awarded TURN nearly the full amount of its request for compensation for making a substantial contribution to D.02-01-031.New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815, fn. 27: See Application of Southern California Edison Company for Approval of Agreements to Sell Its Interests in Four Corners Generating Station and Palo Verde Nuclear Generating Station [D.02-03-035] (2002), where the Commission only adopted one of TURN’s recommendations in its final decision. TURN filed a response to Edison’s petition to withdraw its application asking the Commission to rely on ABX1-6, rather than the MOU, as the basis for termination. The final decision granted Edison’s petition to withdraw, specifically relying on ABX1-6 and making no mention of the MOU. The Commission awarded TURN the full amount of its request for compensation for making a substantial contribution to D.01-10-050.New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815, fn. 27: Opinion on TURN’s Request for Intervenor Compensation in Application 99-03-014 of Pacific Gas and Electric Company to Revise its Electrical Marginal Costs, Revenue Allocation and Rates at the End of the Rate Freeze [D.03-05-029] (2003), at pp. 4-6, where the Commission only adopted one of TURN’s procedural recommendations in its final decision. D.03-01-012 dismissed PG&E’s application without prejudice after finding that intervening circumstances had made much of the proceeding obsolete. TURN had recommended the dismissal of the application. The Commission awarded TURN the full amount of its request for compensation for making a substantial contribution to D.03-01-012, including compensation for TURN’s substantive contributions, reasoning that it would not deny TURN compensation where circumstances beyond its control led to the dismissal of the application. Opinion on Request for Intervenor Compensation in Applications 99-06-033, et al. and in R.92-03-050, D.03-06-065, p. 8, where the Commission did not adopt any of TURN’s procedural or substantive recommendations, but awarded TURN the full amount of its request for compensation for making a substantial contribution to D.03-01-072 and to D.00-05-017, before the proceedings were dismissed without prejudice due to the energy crisis in D.03-01-072. The Commission explained that “we believe our interpretation of the statute accommodates unusual circumstances not envisioned by the Legislature and advances the underlying purposes of the intervenor compensation program,” and citing § 1801.3, subd. (b), which requires that the statute “be administered in a manner that encourages the effective and efficient participation” by all stakeholders).36 “In this case, the CPUC’s explanation of the legal basis for the awards at issue falls short when measured against that bottom-line standard. . . . [In] the Rehearing Decision, [the CPUC’s] reasoning departed materially from the rationale we see in the long line of prior CPUC decisions

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The Court’s discussion of prior Commission decisions also indicates that, under

unusual circumstances, the Commission may award intervenor compensation even

without having adopted the intervenor’s contention or recommendation in some order or

decision.37 For example, the Court cites to D.03-06-035 in both footnote 25 and 27,

where utility applicants requested a dismissal of a ratemaking case that had become moot

due to supervening circumstances caused by the energy crisis. The Commission

dismissed the underlying proceedings before reaching a final decision on the merits.

Similar to the instant case, the utility (Southern California Edison Company) objected to

TURN’s compensation request alleging that it was unsupported by the statute (referring

to section 1802(i)). Although the Commission did not adopt any recommendation or

contention of the intervenors, the Commission found that the intervenors had

substantially contributed to the proceeding before the dismissal and awarded TURN

$82,489.28 in intervenor compensation explaining as follows:

Contrary to Edison’s argument, we believe our interpretation of the statute accommodates unusual circumstances not envisioned by the Legislature and advances the underlying purposes of the intervenor compensation program. Pub. Util. Code § 1801.3(b) requires that “the provisions of this article shall be administered in a manner that encourages the effective and efficient participation of all groups that have a stake in the public utility regulation process.” Indeed, the legislative intent emphasizes “a substantial contribution to proceedings of the commission,” as determined by us in our orders and decisions. (Id. § 1801.3(d) (emphasis added).). . . . Otherwise, intervenors who participated in good faith and at great expense in our proceedings would be in perpetual jeopardy of having a particular proceeding dismissed upon the whim of a disgruntled applicant.

awarding intervenor compensation in cases resolved without a decision on the merits, which tends to undermine one of the key factors calling for deference in this case—the longevity and enduring consistency of the agency interpretive position under review. (New Cingular Wireless, supra, 246 Cal. App. 4th at pp. 818-819.)37 AT&T argues that the Court’s decision holds “there remains an irreducible statutory requirement that some Commission “order or decision” adopt the intervenor’s contentions or recommendations in whole or part.” (Rhg. App., pp. 2-3 citing to New Cingular Wireless, supra, 246 Cal.App.4th at p. 819).

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(D.03-06-065, pp.6-9)38

Hence, D.03-06-065 demonstrates that there are circumstances where the Commission may exercise its legislatively delegated discretion to determine, on a case by case basis, whether an intervenor’s contribution was substantial enough to merit an award of compensation without having affirmed or adopted an intervenor’s recommendation or contention in an order (such as a ruling) or decision. Nothing in the New Cingular Wireless decision indicates that the Court found fault with the finding of a substantial contribution and award in D.03-06-065.

B. D.17-04-007 Is Consistent With The New Cingular Wireless Decision.In the instant case, the Court in New Cingular Wireless recognized the

intervenors’ showing of substantial contribution in their original requests for

compensation each included an issue specific description of the intervenors advocacy

with cross references to orders or decisions that “in virtually every instance” established a

clear linkage:

The underlying findings are set forth in the form of a chart running thirty-four pages in TURN’s case, and twelve pages in CforAT’s case. These charts, which in effect track proposed findings by TURN and CforAT, have three columns. The first column, labeled “Contribution,” describes the claimant intervenor’s advocacy during the course of the proceeding on specific issues; the second column, labeled “Specific References to Claimant’s Presentation and Decision,” cross-references an order or decision, in virtually every instance showing a clear linkage; and the third column, labeled “Showing Accepted by CPUC,” allowed the CPUC to indicate whether it agreed with the proposed findings on an issue-by-issue basis. All of TURN’s and CforAT’s proposed findings were accepted by the CPUC. For TURN, the supporting findings list seven specific rulings that adopt or reflect a position taken by TURN, beginning with the OII itself. (See Dec. No. 13-05-031, supra, at pp. 1–19 [listing the OII and later rulings dated June 28, 2011, July 19, 2011, Aug. 11, 2011, Aug. 31, 2011, Sept. 19, 2011, Nov. 16, 2011].) And for CforAT—which had a much narrower role in the proceeding than TURN did, and the amount of its award was commensurately lower—the supporting finding

38 See New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815, fn. 27, citing D.03-06-065.

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lists one specific ruling. (See Dec. No. 14-06-026, supra, at p. 4 [listing ruling of Aug. 11, 2011].

(New Cingular Wireless, supra, 246 Cal. App. 4th at p. 794, fn. 8; emphasis added.)

In its concluding paragraph in New Cingular Wireless, the Court states “the

awards are consistent with the text of Article 5 and with our reading of legislative intent.”

Moreover, the Court acknowledges that there “appears to be ample support in the record

for the compensation awards to TURN and CforAT . . .” (New Cingular Wireless, supra,

246 Cal. App. 4th at p. 821.)

In D.17-04-007, we summarized TURN and CforAT’s procedural and substantive

contributions to the OII proceeding and to D.12-08-025. Pursuant to our understanding

of the Court’s decision in New Cingular Wireless, we ground our authority to award

intervenor compensation on a textual reading of the statutory definition of “substantial

contribution” (that an interim procedural contribution can be just as significant as a

substantive contribution on the merits (section 1802(i)), and exercised our discretion on a

case by case basis to determine the amount of the award. Our decision to award

compensation to TURN and CforAT is supported by a policy rationale founded expressly

on section 1801.3 (that the statute be administered in a manner that encourages the

effective and efficient participation by all stakeholders). In D.17-04-007, we clarified

that policy rationale stating as follows:

Allowing withdrawal of an application to preclude intervenor compensation would concede control of awards in that situation to the utility applicant. Such control would be a perverse outcome, especially considering that withdrawal is likely to occur in precisely those applications where an intervenor’s opposition was most effective. See also D.02-07-030, Opinion on Requests for Intervenor Compensation in Application 99-12-012 of MCI WorldCom, Inc. and Sprint Corporation, for Approval to Transfer Control of Sprint Corporation’s California Operation Subsidiaries to MCI WORLDCOM, INC., 2002 Cal. PUC LEXIS 438, (MCI) at 9-10, where the Commission stated that if “we denied compensation for substantial efforts on transactions that--

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through no fault of the intervenors -- were not consummated, we would discourage Intervenors from participating in such proceedings. Every large and controversial transaction presents some risk of not being consummated by virtue of its very largeness and level of controversy. Such large transactions are precisely the ones on which the Commission most needs the views of Intervenors. We should encourage such participation in proceedings of this magnitude.”

(D.17-04-007, pp.11-12.)

In conclusion, the New Cingular Wireless decision does not support AT&T’s

argument that the Commission may only award compensation for the reasonable costs an

intervenor incurred in preparing or presenting whatever contentions or recommendations

the Commission actually adopted in some order or decision. AT&T’s allegation is not

only contrary to New Cingular Wireless, but to the prior Commission decisions the Court

cited to as examples of employing the correct legal rationale for awarding intervenor

compensation when a proceeding ends without a decision on the merits. Those prior

Commission decisions indicate unequivocally that as long as the Commission grounds its

authority in a textual reading of “substantial contribution” (section 1802(i)), the

Commission may then exercise its discretion on a case by case basis to decide the extent

of the intervenor’s substantial contribution and the amount of the award based upon the

policy rationale set forth in section 1801.3 (that the statute be administered in a manner

that encourages the effective and efficient participation by all stakeholders).

Based on the above, rehearing on this issue is denied. However, we modify D.17-

04-007 to more fully discuss the intervenors’ procedural recommendations that were

affirmed in rulings as well as their substantive contributions to the OII proceeding and to

D.12-08-025.

C. AT&T Misinterprets The Court Of Appeal’s Reason For Remand In The New Cingular Wireless Decision

AT&T argues that “[t]he Commission’s task on remand, on order to comply with

the statute, was to identify which of the intervenors’ contentions or recommendations

were actually adopted in an actual order or decision, and what costs the intervenors

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incurred in presenting those particular contentions or recommendations. (Rhg. App.,

p. 3.) AT&T argues that D.17-04-007 fails to identify what portion of TURN’s $256,000

in total costs for the proceeding were attributable to the preparation and presentation of

the procedural recommendations that were adopted by the Commission. “That conflicts

with the Court’s holding that section 1802(i) “plainly limit[s] the awardable

compensation to . . . ‘reasonable costs in incurred by the customer in preparing or

presenting that contention or recommendation’” i.e., the contention or recommendation

the Commission adopted.” (Rhg. App., p. 4, citing New Cingular Wireless, supra, 246

Cal.App. 4th at p. 819.)

AT&T is wrong. The Court did not remand the orders in New Cingular Wireless

due to lack of ample evidentiary support in the record for the compensation awards to

TURN and CforAT. As the Court noted: “Based on the CPUC’s detailed factual

findings and our own reading of Article 5 in light of the statutory history, we are

convinced that the CPUC was correct to conclude that TURN and CforAT are eligible for

intervenor compensation.” (New Cingular Wireless, supra, 246 Cal. App. 4th at p. 820.)

“Still, despite what appears to be ample support in the record for the compensation

awards to TURN and CforAT, we cannot accept the legal rationale relied upon by the

CPUC in the orders under review, and thus we will vacate the TURN Award, the CforAT

Award, and the Rehearing Decision without prejudice to renewal of requests for fees and

costs by those intervenors, and redetermination of awards to them consistent with this

opinion.” (New Cingular Wireless, supra, 246 Cal.App.4th at 821.)39

As the Court’s language above demonstrates, the Court remanded the orders

because it disagreed with the Commission’s legal rationale in Rehearing Decision

(D.14-12-085) that there was a conflict between section 1801.3(b) (the Legislature’s

directive that the Commission administer Article 5 to promote wide participation in its

regulatory proceedings by all stakeholders) and section 1802(i) (the definition of

“substantial contribution”) that needed to be harmonized.40 The Court found that the

39 See also, New Cingular Wireless, supra, 246 Cal. App. 4th at p. 794, fn. 8.40 Not only did the Court find this rationale to be inconsistent with the Commission’s rationale in

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statutory construction issue in this case had nothing to do with any need to reconcile

internal conflicts within Article 5. As the Court observed: “We are simply dealing with

a gap in the statutory language, a stray detail left unaddressed by the Legislature in

explicit terms. Framing the analysis narrowly as a gap-filling problem is crucial, for that

way of looking at the issue produces discretion that is interstitial in nature, always

confined to operating within the boundaries of the gap to be filled.” (New Cingular

Wireless, supra, 246 Cal. App. 4th at p. 820.) The Court explained the reason for the

remand stating, in pertinent part, that “[the Commission’s] reasoning departed materially

from the rationale we see in the long line of prior CPUC decisions awarding intervenor

compensation in cases resolved without a decision on the merits, which tends to

undermine one of the key factors calling for deference in this case—the longevity and

enduring consistency of the agency interpretive position under review.” (New Cingular

Wireless, supra, 246 Cal. App. 4th at p. 819.)

The prior Commission decisions the Court cites to in New Cingular Wireless, as

examples of employing the correct legal rationale for awarding intervenor compensation

when a proceeding ends without a decision on the merits, indicate that as long as the

Commission grounds its authority in a textual reading of “substantial contribution”

(section 1802(i)), the Commission may then exercise its discretion on a case by case basis

to decide the extent of the intervenor’s substantial contribution and the amount of the

award based upon the policy rationale set forth in section 1801.3 (that the statute be

administered in a manner that encourages the effective and efficient participation by all

stakeholders).

In D.17-04-007, we reviewed both TURN and CforAT’s original intervenor

compensation claims and refiled intervenor compensation claims, including attachments

thereto, as well as other parts of the record in this proceeding. Of importance, we

followed the Court’s direction in New Cingular Wireless. We invoked our discretion to

prior decisions that ended without a decision on the merits, but unnecessary stating “the Legislature not only agreed with the CPUC’s view that intervenor compensation may be awarded on a discretionary basis in cases that resolve short of the merits, but more than that, delegated to the CPUC the authority to “fill in the gaps” in Article 5 in the course of administering it based on express policy guidance in the statute.” (New Cingular Wireless, 246 Cal.App.4th at 816-817.)

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award intervenor compensation to TURN and CforAT in a proceeding that ended without

a decision on the merits, and corrected our rationale for the awards to TURN and CforAT

by conforming our reasoning to that set forth in the prior decisions that the Court cited to

with favor.41 We analyzed the intervenors’ participation using “case by case”

adjudication, which the Court acknowledged was the method the Legislature

contemplated the Commission would use to administer the intervenor compensation

statutory scheme (See New Cingular Wireless, supra, 246 Cal. App. 4th at p. 818), taking

into account the unique procedural history and factual circumstances of each case in our

examination of the intervenors’ substantial contribution.) We summarized the

intervenors’ procedural and substantive contributions to the OII proceeding and to

D.12-08-025 and set forth award itemizations in Attachments 1-2.

We acknowledge, however, that neither our summary of the intervenors’

substantial contribution nor our award itemizations in D.17-04-007 are as detailed as the

original intervenor compensation decisions (D.13-05-031 and D.14-06-026), which were

vacated by the Court. In New Cingular Wireless, the Court referred favorably to the

format of those decisions.42 Moreover, each of the vacated decisions includes sections

that (1) specify the intervenor’s showing of substantial contribution during the course of

the proceeding on specific issues; (2) cross-reference specific rulings that adopt or affirm

a position taken by TURN and CforAT; (3) indicate whether the Commission agreed

with the proposed findings on an issue-by-issue basis; (4) analyze the reasonableness of

41 New Cingular Wireless, supra, 246 Cal. App. 4th at pp. 813-816, fns. 25-27.)42 As the Court noted in New Cingular Wireless, supra, 246 Cal. App. 4th at p. 794, fn. 8:

The underlying findings are set forth in the form of a chart running thirty-four pages in TURN’s case, and twelve pages in CforAT’s case. These charts, which in effect track proposed findings by TURN and CforAT, have three columns. The first column, labeled “Contribution,” describes the claimant intervenor’s advocacy during the course of the proceeding on specific issues; the second column, labeled “Specific References to Claimant’s Presentation and Decision,” cross-references an order or decision, in virtually every instance showing a clear linkage; and the third column, labeled “Showing Accepted by CPUC,” allowed the CPUC to indicate whether it agreed with the proposed findings on an issue-by-issue basis.

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the requested compensation, reasonableness of hours claimed, and allocation of hours by

issue, and (5) identify Commission disallowances, adjustments and comments section.

Therefore, we modify D.17-04-007 to more specifically address these issues.

D. The Allen/Warner And MCI Decisions Are Relevant.

AT&T argues that the Allen/Warner43 decision does not support D.17-04-007.

“Allen/Warner was decided years before the now governing intervenor compensation

statute was enacted in 1984 and amended in 1992, and is irrelevant today.” (Rhg. App.,

p. 6.) AT&T alleges that D.17-04-007’s discussion of Allen/Warner is “an attempt to

rekindle some “vague notions of fairness and equity” to recreate some override to the

statutory ‘“order or decision” requirement.” (Rhg. App., p. 7.)

AT&T ignores the fact that the Court in New Cingular Wireless discusses

Allen/Warner, MCI, and other prior Commission decisions in the context of the

Commission’s evolving legal rationale for finding a substantial contribution and

awarding compensation when a proceeding ends without a decision on the merits.

D.17-04-007 simply analogizes the similarity in factual circumstances and the amount of

work the intervenors did in Allen/Warner and the instant case,44 and discusses equitable

considerations that are still relevant today. As we observed: “Even though Allen/Warner

43 The Environmental Defense Fund Requests Compensation for Its Participation in SoCal Edison Co.’s Application for a Certificate for the Harry Allen Warner Valley Energy System [D.93724] (1981) 7 Cal.P.U.C.2d 75] (“Allen/Warner”).44 In D.17-04-007, we simply analogized the similarity in factual circumstances and the amount of work the intervenors did in Allen/Warner and the instant case. First, from an equitable standpoint, both TURN and EDF had to perform a vast amount of work in order to participate effectively in a proceeding of potentially great consequence. Both proceedings abruptly became moot, by requests for withdrawal by the applicants or merger proponents, only after the intervenors had performed sophisticated analysis to support their contentions and recommendations on the reasonable assumption that the matter would be decided on the merits. Indeed, both TURN and EDF had no alternative but to assume that the Commission would resolve the respective proceedings on the merits. To slow or suspend their work would have jeopardized the public interests that the intervenors were advocating. (D.17-04-007, p. 11.) Second, TURN’s participation in I.11-06-009 recalls EDF’s participation in Allen/Warner. Both intervenors performed extensive computer modeling in rebuttal of the financial analysis offered by the respective utilities. EDF’s participation was unique in this respect, while TURN did more to rebut the utilities in this respect than any of the other parties. In addition, other parties relied on computer modeling performed by these intervenors to formulate their own conclusions and recommendations in the respective proceedings. (fn. omitted.) (D.17-04-007, p. 12.)

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preceded the statute and is based in part on consideration of “fairness and equity” (see

New Cingular Wireless, 246 Cal.App.4th at 815), its stated rationale is consistent with the

statute in defining substantial contribution, explaining how such contribution would

occur short of “adoption,” and requiring that intervenors do much more than merely

participate to receive an intervenor compensation award.” (D.17-04-007, p. 10.) We

further noted in D.17-04-007: “Today’s outcome is also supported by Section 1801.3,

which makes clear that equitable considerations have a role in the intervenor

compensation program. Specifically, that section states, ‘“[t]he provisions of this article

shall be administered in a manner that encourages the effective and efficient participation

of all groups that have a stake in the public utility regulation process.”’ (D.17-04-007,

p. 11.)45

AT&T also argues that MCI is similarly irrelevant stating as follows:

“[T]he Court cited MCI as an example of the Commission previously concluding that an intervenor can make a substantial contribution via interim procedural recommendations even if there is no final decision on the merits. But that is not the issue here. The issue here is whether, having adopted some procedural recommendation of the intervenor, the Commission can then award the intervenor

45 We also observed in D.17-04-007, pp. 11-12: Allowing withdrawal of an application to preclude intervenor compensation would concede control of awards in that situation to the utility applicant. Such control would be a perverse outcome, especially considering that withdrawal is likely to occur in precisely those applications where an intervenor’s opposition was most effective. See also D.02-07-030, Opinion on Requests for Intervenor Compensation in Application 99-12-012 of MCI WorldCom, Inc. and Sprint Corporation, for Approval to Transfer Control of Sprint Corporation’s California Operation Subsidiaries to MCI WORLDCOM, INC., 2002 Cal. PUC LEXIS 438, (MCI) at 9-10, [fn. omitted] where the Commission stated that if “we denied compensation for substantial efforts on transactions that-- through no fault of the intervenors -- were not consummated, we would discourage Intervenors…from participating in such proceedings. Every large and controversial transaction presents some risk of not being consummated by virtue of its very largeness and level of controversy. …Such large transactions are precisely the ones on which the Commission most needs the views of Intervenors…. We should encourage such participation in proceedings of this magnitude.

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all of its costs of participation in the proceeding, or instead must hew to the plain language of the statute, which in the Court’s words “plainly limits[s] the awardable compensation to ‘all reasonable advocate fees, reasonable expert fees, and other reasonable costs incurred by the customer in preparing or presenting that contention or recommendation’” – i.e., the contention or recommendation that the Commission adopted. Nothing in MCI addressed that issue . [citation omitted.]

(Rhg. App., p. 6, citing to New Cingular Wireless, supra, 246 Cal.App.4th at p. 819; emphasis added.)

AT&T’s analysis is incorrect. First, the Court discusses MCI in the context of the

Commission’s evolving legal rationale for awarding intervenor compensation when

proceedings end without a final decision on the merits: “Following the 1992

Amendments, as illustrated by MCI, the CPUC began to ground its authority to award

intervenor compensation in such cases on a textual reading of the statutory definition of

"substantial contribution," supported by a policy rationale founded expressly on section

1801.3.” (New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815.) The Court

emphasized that in MCI “[t]he CPUC anchored its reasoning directly in the statutory text,

supporting its core rationale--that an interim procedural contribution can be just as

significant as a substantive contribution on the merits, and that the final outcome of the

proceeding does not necessarily matter--with citations to the statutory definition of

‘substantial contribution.’ ” (Id. at p. 816.)

Second, neither MCI, nor New Cingular Wireless, nor any of the other prior

Commission decisions the Court cites to in footnote 27, support AT&T’s argument that

the Commission may award compensation only for the reasonable costs an intervenor

incurred in preparing or presenting whatever contentions or recommendations the

Commission actually adopted in some order or decision. In almost all of those decisions,

the Commission only adopted one procedural recommendation of the intervenors, yet

awarded all or nearly all of the requested compensation. In other words, those decisions

demonstrate that as long as the Commission grounds its authority in a textual reading of

“substantial contribution” (section 1802(i)), the Commission may then exercise its

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discretion on a case by case basis to decide the extent of the intervenor’s substantial

contribution and the amount of the award based upon the policy rationale set forth in

section 1801.3.

Based on the above, we find that AT&T’s allegations that Allen/Warner and MCI

are irrelevant lack merit. Hence, rehearing is denied on these issues.

III. CONCLUSIONFor the reasons discussed above, we modify D.17-04-007 as discussed above and

set forth in the Ordering Paragraphs below. Attachment A to today’s decision

incorporates the modifications made to D.17-04-007.

Rehearing of D.17-04-007, as modified, is denied because no legal error has been

demonstrated.

THEREFORE, IT IS ORDERED that:

1. D.17-04-007 shall be modified as follows:

a. On page 2, second full paragraph, third sentence, after the words “The Commission invited” insert:

parties, including intervenors, to participate in the OII, and to file

b. On page 3, first full paragraph, fourth sentence, after the words “But, the Commission did affirm all of its prior rulings” insert:

,denied all motions filed in the proceeding not previously ruled upon,

c. On page 3, first full paragraph, fifth sentence, delete “The Utility Reform Network (TURN) and Center for Accessible Technology (CforAT)” and insert:

Both TURN and CforAT

d. On page 4, in the first paragraph continuing from page 3, first sentence, after the word “proceeding” insert:

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because there was no final decision on the merits adopting the intervenors’ recommendations

e. On page 4, in the first paragraph continuing from page 3, third sentence, after the words “the record contained” insert:

ample

f. On page 5, in the first full paragraph, third sentence, after the words “the Commission today awards” delete “ the same amounts of compensation awarded to TURN and CforAT” and insert:

TURN $255,944.03 and CforAT $20,286.24 in intervenor compensation

g. On page 7, first paragraph continuing from page 6, after the last sentence ending with the word “elucidated” delete footnote 5 and insert the following new paragraph:

In New Cingular Wireless, the Court did not remand the orders due to lack of ample support in the record for the awards to TURN and CforAT.5 The Court remanded the orders because it disagreed with the Commission’s legal rationale in Rehearing Decision (D.14-12-085) that there was a conflict between section 1801.3(b) (the Legislature’s directive that the Commission administer Article 5 to promote wide participation in its regulatory proceedings by all stakeholders) and section 1802(i) (the definition of “substantial contribution”) that needed to be harmonized.6 The Court found that “[the Commission’s] reasoning departed materially from the rationale we see in the long line of prior CPUC decisions awarding intervenor compensation in cases resolved without a decision on the merits, which tends to undermine one of the key factors calling for deference

55 New Cingular Wireless, 246 Cal.App.4th at 821: “Still, despite what appears to be ample support in the record for the compensation awards to TURN and CforAT, we cannot accept the legal rationale relied upon by the CPUC in the orders under review, and thus we will vacate the TURN Award, the CforAT Award, and the Rehearing Decision without prejudice to renewal of requests for fees and costs by those intervenors, and redetermination of awards to them consistent with this opinion.” 66 Not only did the Court find this rationale to be inconsistent with the Commission’s rationale in prior decisions that ended without a decision on the merits, but unnecessary stating “the Legislature not only agreed with the CPUC’s view that intervenor compensation may be awarded on a discretionary basis in cases that resolve short of the merits, but more than that, delegated to the CPUC the authority to “fill in the gaps” in Article 5 in the course of administering it based on express policy guidance in the statute.” (New Cingular Wireless, 246 Cal.App.4th at pp. 816-817.)

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in this case—the longevity and enduring consistency of the agency interpretive position under review.” (New Cingular Wireless, supra, 246 Cal. App. 4th at p. 819.) The Court cited to several prior Commission decisions, including MCI,7 as examples of where the Commission employed the correct legal rationale for awarding intervenor compensation when a proceeding ends without a decision on the merits by grounding its authority to award intervenor compensation on a textual reading of the statutory definition of “substantial contribution” (section 1802(i)) supported by a policy rationale founded expressly on section 1801.3 (that the statute be administered in a manner that encourages the effective and efficient participation by all stakeholders).8

77 Opinion on Requests for Intervenor Compensation in Application 99-12-012 of MCI World-Com and Sprint Corporation [D.02-07-030] (2002). [2002 Cal. P.U.C. Lexis 438] (“MCI”).88 Application of Southern California Edison Company for Approval of New Rates To Be Implemented At The End Of The Rate Freeze Period And Other Requested Relief, [D.02-08-061] (2002), where the Commission only adopted one procedural recommendation of TURN in its final decision. Edison proposed to withdraw the application, or in the alternative, that the application be dismissed without prejudice. TURN recommended the latter of the two Edison proposed alternatives, and the Commission dismissed Edison’s application without prejudice. The Commission awarded TURN nearly the full amount of its request for compensation for making a substantial contribution to D.02-01-031.New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815, fn. 27: See Application of Southern California Edison Company for Approval of Agreements to Sell Its Interests in Four Corners Generating Station and Palo Verde Nuclear Generating Station [D.02-03-035], where the Commission only adopted one of TURN’s recommendations in its final decision. TURN filed a response to Edison’s petition to withdraw its application asking the Commission to rely on ABX1-6, rather than the MOU, as the basis for termination. The final decision granted Edison’s petition to withdraw, specifically relying on ABX1-6 and making no mention of the MOU. The Commission awarded TURN the full amount of its request for compensation for making a substantial contribution to D.01-10-050.New Cingular Wireless, supra, 246 Cal. App. 4th at p. 815, fn. 27: Opinion on TURN’s Request for Intervenor Compensation in Application 99-03-014 of Pacific Gas and Electric Company to Revise its Electrical Marginal Costs, Revenue Allocation and Rates at the End of the Rate Freeze [D.03-05-029] (2003), at pp. 4-6, where the Commission only adopted one of TURN’s procedural recommendations in its final decision. D.03-01-012 dismissed PG&E’s application without prejudice after finding that intervening circumstances had made much of the proceeding obsolete. TURN had recommended the dismissal of the application. The Commission awarded TURN the full amount of its request for compensation for making a substantial contribution to D.03-01-012, including compensation for TURN’s substantive contributions, reasoning that it would not deny TURN compensation where circumstances beyond its control led to the dismissal of the application. Compensation in Applications 99-06-033, et al. and in R.92-03-050 [D.03-06-065] (2003), at p. 8, where the Commission did not adopt any of TURN’s procedural or substantive recommendations, but awarded TURN the full amount of its request for compensation for making a Substantial Contribution to D.03-01-072 and to D.00-05-017, before the proceedings were dismissed without prejudice due to the energy crisis in D.03-01-072. The Commission

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h. On page 14, first paragraph continuing from page 13, at the end of the sentence ending with the words “under consideration in I.11-06-009” insert the following two new paragraphs:

In regard to MCI, the Court of Appeal in New Cingular Wireless drew a parallel between the factual circumstances in MCI and the instant case “where the impact the intervenors had in an aborted merger review proceeding was reflected in a series of procedural victories. The Court states that the Commission, in finding that the intervenors had established that they made a “substantial contribution” despite the withdrawal of the proposed merger and the dismissal of the proceeding on mootness grounds, explained:

“A party may make a substantial contribution to a decision in a number of ways. It may offer a factual or legal contention upon which the Commission relies in making a decision, or it may advance a specific policy or procedural recommendation that the ALJ or the Commission adopts. A substantial contribution includes evidence or argument that supports part of the decision even if the Commission does not adopt the party's position in total. The Commission has provided compensation even when the position [on the merits] advanced by the intervenor is rejected." (New Cingular Wireless, supra, 246 Cal.App.4th at p. 815, citing MCI[D.02-07-030] at p. 9, citing San Luis Obispo Mothers for Peace [D.89-03-063].)

The Court noted that the Commission explained from a policy standpoint, "the fact that the merger was called off should not militate against an award of compensation. If we denied compensation for substantial efforts on transactions that--through no fault of the intervenor--were not consummated, we would discourage Intervenors such as TURN, UCAN, and Greenlining/LIF from participating in such proceedings." (New Cingular Wireless, supra, 246 Cal.App.4th at p. 816, fn. 28, citing MCI [D.02-07-030]at p. 9.)

explained that “we believe our interpretation of the stature accommodates unusual circumstances not envisioned by the Legislature and advances the underlying purposes of the intervenor compensation program,” and citing § 1801.3, subd. (b), which requires that the statute “be administered in a manner that encourages the effective and efficient participation” by all stakeholders).

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Of importance, however, the Court found that the MCI was not purely policy based. “The CPUC anchored its reasoning directly in the statutory text, supporting its core rationale--that an interim procedural contribution can be just as significant as a substantive contribution on the merits, and that the final outcome of the proceeding does not necessarily matter--with citations to the statutory definition of "substantial contribution."(New Cingular Wireless, supra, 246 Cal. App. 4th at p. 816.) Hence, the Court referred to MCI as an example of a Commission decision where the Commission correctly grounded its authority to award intervenor compensation on a textual reading of the statutory definition of “substantial contribution,” supported by a policy rationale founded on section 1801.3.

i. On page 15, under the heading “5.1. Procedural Contribution” delete the first full paragraph, which continues on page 16, in its entirety and insert the following new paragraphs:

In New Cingular Wireless, supra, 246 Cal.App.4th 784, the Court of Appeal pointed out that TURN took a leading role in the proceeding from the beginning starting with its successful advocacy concerning the need for an intensive review of the merger before the OII was even issued. The Court stated that TURN won some important procedural victories early on in the proceeding referring to the jurisdiction and preemption arguments as well as the categorization of the OII as ratesetting. The Court also stated that all of TURN’s proposed findings were accepted by the Commission, and identified seven specific rulings that adopt or reflect a position taken by TURN, beginning with the OII itself. Id., at pp. 791-794 (see also footnotes 2-8.). We summarize TURN’s procedural contributions below.

A. Jurisdictional and Preemption Arguments16 New Cingular argued that the Commission did not have jurisdiction to review the proposed merger because it has been federally preempted from regulating rates for wireless carriers.1717 In response thereto, TURN asserted that because the Commission was preempted from rate regulation of wireless carriers and could not enforce the equitable allocation set forth in section 854(b)(2), a detailed review by the Commission was even more important than usual. Specifically, TURN argued that the Commission has

1717 AT&T’s Opening Comments (7/6/11), p. 52; see also fn. 111.

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authority to reject the proposed acquisition, and, pursuant to section 854(a), authority to impose conditions that must be met for the merger to proceed: “P.U. Code § 854(a) clearly establishes that any transaction involving a public utility in California must get the Commission’s authorization. The OII correctly finds that “wireless carriers are ‘telephone corporations’ and therefore public utilities… . Hence, §854 is applicable.”1818 Moreover, TURN argued that section 854(3) explicitly states that to approve a transaction of this nature, the Commission, must find, among other things, that the transaction “not adversely affect competition.”1919 Hence, TURN argued that the statute requires the Commission to consider and adopt mitigation measures to avoid any anti-competitive impact.

While not specifically ruling on the jurisdiction and preemption issues, the Commission moved forward with the investigation consistent with TURN’s recommendations and issued an ALJ Ruling (8/11/11) containing information requests focusing on mitigation measures.2020 In response to the ALJ’s Ruling (8/11/11), TURN submitted detailed information about potential mitigation measures, including the Supplemental Declaration of TURN’s expert witness Dr. Roycroft, and addressed all other issues specified in the ruling.2121 Hence, we find that TURN’s advocacy regarding jurisdiction and preemption made a substantial contribution to the proceeding by assisting the Commission in the making of an ALJ Ruling (8/11/11) which, pursuant to TURN’s recommendations, sought detailed information from the parties about mitigation measures. Moreover, this information assisted the Commission in developing a record upon which it could rely in preparing comments for the FCC.

1818 TURN’s Opening Comments (7/6/11) p. 3.1919 TURN’s Opening Comments (7/6/11) p. 3.2020 ALJ Ruling Requesting Additional Information and Addressing various Procedural Issues (8/11/11) pp. 9-10. See also New Cingular Wireless PCS, LLC et al. v. Public Utilities Commission, et al. (2016) 246 Cal. App. 4th 784, 791, fn. 3, citing Decision No. 13-05-031, supra, at page 6 (“While not specifically ruling on [jurisdictional and preemption] issues, the Commission’s actions were consistent with TURN’s recommendations. The Commission moved forward with the investigation and issued an ALJ ruling” containing information requests in accord with the scope of inquiry TURN sought.). 2121 Response of the Utility Reform Network To the August 11, 2011 Administrative Law Judge’s Ruling (8/22/11) pp. 1-26; Supplemental Declaration of Trevor R. Roycroft, Ph.D. in response to issues raised in the ALJ August 11, 2011 Ruling on behalf of TURN, pp. 1-12.

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B. Appeal of Categorization2222

The Commission designated the OII proceeding as “ratesetting.”2323 In response to AT&T’s appeal of the categorization as ratesetting,2424 TURN filed a response making three important points: first, TURN clarified that the proposed acquisition was to be by AT&T Corp., not just by the AT&T’s wireless operations, therefore, the Commission had an obligation to review the impact on the entire telecommunications market;2525 second, TURN demonstrated that AT&T had failed to account for the Commission’s clear authority under Rule 7.1(e)(2) authorizing the Commission to categorize a proceeding as ratesetting when it does not fit clearly into any one category;2626 and third, TURN advocated that it would

2222 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 12, 2012 (“Original CforAT Compensation Request”), pp. 3-5. This is also a “Procedural Issue,” discussed below under “Workshops, Discovery, and Procedural Issues.”2323 Order Instituting Investigation on the Commission’s Own Motion Into the Planned Purchaseand Acquisition by AT&T Inc. of T-Mobile USA, Inc. and its Effect on California Ratepayers and the California Economy (hereafter referred to as ““OII” or “I.11-06-009”), p. 20, see also [Ordering Paragraph 15] pp. 26-27.2424 Appeal by New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities, and T-Mobile West Corporation d/b/a T-MOBILE (U-3056-C) Of Categorization Of Order Instituting Investigation (6/17/11) pp. 2-3: AT&T objected to the categorization as a matter of law arguing that since the Commission has no authority over rates of wireless carriers, then the Commission could not categorize the proceeding as “ratesetting.” Specifically, AT&T argued that “[t]he OII, as a matter of policy, should be categorized as “quasi-legislative” (Rule 8.2(a)), where “ex parte communications are allowed without restriction or reporting requirements.” 2525 TURN’s Response to Appeal of Categorization (6/22/11), pp. 1-2. More specifically, TURN argued “[t]his is significant because it opens up the review process to include issues such as the derivation of the investment dollars that AT&T Corporation will use to purchase T-Mobile as well as the impact upon AT&T’s landline and broadband operations resulting from spending $39B for the acquisition. In addition, AT&T and the Commission have consistently argued that wireless telephony is a complete substitute for landlines leading to the conclusion that the telecommunications market in California is robustly competitive. It is therefore relevant that in assessing the potential impact of the proposed merger the effect on the entire telecommunications market be fully examined, not just the wireless market. Furthermore, other important issues are raised when considering AT&T Corporation as the acquirer, for example, the issue of providing backhaul facilities at reasonable rates with nondiscriminatory terms and conditions.” 2626 Response of TURN to the Appeal of Categorization of OII (6/22/11) p. 3: CPUC Rules of Practice and Procedure, Rule 7.1(e)(2) provides that:

When a proceeding does not clearly fit into any of the categories as defined in Rules 1.3(a), (d), and (e), the proceeding will be conducted under the rules applicable to the ratesetting category unless and until the Commission determines that the rules applicable to one of the other categories, or some

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be prudent for the Commission to use the ratesetting category and associated rules regarding ex parte contacts (even though the Commission had preliminarily determined there would be no evidentiary hearings) in the interests of transparency.2727While not specifically ruling on the categorization issue, the Commission retained the ratesetting category consistent with TURN’s recommendation. Hence, we find that TURN’s advocacy made a substantial contribution to the proceeding regarding this issue, which had the effect of triggering a number of rules designed to ensure pubic transparency (among other things, restrictions on ex parte contacts). We point out that in D.12-08-025, the Commission denied all motions filed in the proceeding that were not previously ruled upon, which means that AT&T’s motion for appeal of categorization was denied and TURN prevailed on this issue.2828

C. ALJ Ruling (6/28/11)In addition to the questions in the OII itself, the OII included detailed data requests in Appendices A and B. The OII also invited parties to suggest additional data requests via letters to the Director of the Commission’s Communications Division. TURN submitted such a letter suggesting several additional data requests.2929 A Joint Assigned Commissioner’s and Administrative Law Judge’s Ruling Addressing Various Procedural Issues (6/28/11) included one of TURN’s data requests and required AT&T and market participant parties named in the OII to respond thereto.3030 Hence, we find that TURN’s work on this issue made a substantial contribution to the proceeding by assisting the Commission in the making of a ruling,

hybrid of the rules, are best suited to the proceeding.2727 Response of TURN to the Appeal of Categorization of OII (6/22/11) p. 4. “The ex parte reporting requirements for ratemaking proceedings are not onerous and do have the positive benefit of leveling the playing field. Under the rules each party will be aware of all meetings relating to the proceeding and also be aware of what exactly was discussed. Carriers such as AT&T have a long history of access to the Commission as well as having the resources to deploy many employees to meet with Commissioners, staff, etc. Intervenors, such as TURN have severely constrained resources so knowing exactly what was discussed in each meeting the carriers have with the Commission helps offset, to some degree, this resource disparity.” 2828 D.12-08-025, p. 11.2929 Letter from William R. Nusbaum to Jack Leutza (6/20/11); Joint Assigned Commissioner’s and Administrative Law Judge’s Ruling Addressing Various Procedural Issues (6/28/11), Appendix 1, Data Request 6; TURN’s letter to Paul Clanon, Executive Director, CPUC (7/26/11); Letter from Paul Clanon to TURN (8/1/11).3030 Joint Assigned Commissioner’s and Administrative Law Judge’s Ruling Addressing Various Procedural Issues (6/28/11), Appendix 1, Data Request 6.

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resulting in the Commission obtaining additional important information, and by developing a record upon which the Commission could rely in preparing comments for the FCC.

D. ALJ Ruling (7/19/11)TURN’s work on the issue of market definition was reflected in questions set forth in the ALJ Ruling Setting Briefing Schedule (7/19/11). Hence, we find that TURN’s work on this issue made a substantial contribution to the proceeding by assisting the Commission in the making of a ruling, which resulted in the Commission obtaining additional important information, and by developing a record upon which the Commission could rely in preparing comments for the FCC. TURN also sought to have the transcripts from the public workshops posted and made available to the public. The ALJ so ordered in an ALJ Ruling (7/19/11).

E. ALJ Ruling (8/11/11)As discussed above, TURN’s advocacy during the beginning of the proceeding regarding jurisdiction and preemption made a substantial contribution to the proceeding by assisting the Commission in the making of an ALJ Ruling (8/11/11) seeking detailed information about mitigation measures, which assisted the Commission in its analysis of the proposed merger and in developing a record upon which it could rely in preparing comments for the FCC.

On July 26, 2011, TURN submitted a letter to the Commission requesting an extension to the schedule adopted in the OII, which required parties to file comments on the economic model and engineering analysis that the respondents filed at the FCC. TURN informed the Commission that the FCC had announced, on July 20, 2011, that it was effectively suspending its own review schedule of the proposed merger while it awaited and then reviewed additional economic and engineering analysis from AT&T. TURN suggested that the Commission request any additional information filed by the respondents at the FCC, and extend the schedule adopted in the OII to provide parties with an opportunity to review and comment on the new materials. On August 1, 2011, the Commission’s Executive Director granted TURN’s request for an extension by letter.3131

Subsequently, in an ALJ Ruling (8/11/11), the Commission extended the deadline for parties to submit reply comments due in the OII to

3131 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/11/11), Appendix C.

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8/22/11. Hence, we find that TURN’s work on this issue made a substantial contribution to the proceeding by assisting the Commission in the making of a ruling, which resulted in the Commission obtaining additional important information about the proposed merger, the parties having more time to analyze information critical to the OII, and the development of a record upon which the Commission could rely in preparing comments for the FCC.

F. ALJ Ruling (8/31/11)TURN’s requests for extensions of time are also reflected in an ALJ Ruling Regarding Information Filed under Protective Order (8/31/11) that required AT&T to produce documents resulting in giving all parties more time to analyze information critical to the OII.

G. ALJ Ruling (9/19/11)On September 8, 2011, TURN filed a Motion for Official Notice of the U.S. Department of Justice’s Complaint to Enjoin the Merger of AT&T and T-Mobile. In an ALJ Ruling (9/19/11), the Commission took official notice of said complaint. Hence, we find that TURN’s work on this issue made a substantial contribution to the proceeding by assisting the Commission in the making of a ruling, which resulted in the Commission obtaining additional important information, and by developing a record upon which the Commission could rely in preparing comments for the FCC. On 8/17/11, due to delays in AT&T’s production of its economic and engineering analysis, TURN filed another motion for an extension of time, which the Commission granted in an electronic ruling on 8/18/11, thereafter memorialized in an ALJ Ruling (9/19/11.) Hence, TURN again prevailed on this procedural issue.

H. ALJ Ruling (11/16/11)In an ALJ Ruling Establishing a Deadline for Comments of Merger Related Economic and Engineering Analysis (11/16/11), the Commission granted another of TURN’s motions for an extension of time, which TURN filed due to delay in production by AT&T of its economic and engineering models. The Commission extended the deadline on submissions on the AT&T models to 12/12/11. Hence, TURN prevailed on this procedural issue.

j. On page 16, under the heading “5.2. Substantive Contribution” in the first full paragraph, delete the third, fourth, and fifth sentences in

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their entirety. Insert the following new sentence at the end of the second sentence ending with the word “issues” and the following new paragraphs:

TURN’s substantive contributions are summarized below.

A. Competitive Impacts and Analysis of AT&T’s Economic and Engineering Models3232

In the OII, the Commission asked specific questions about whether the merger was in the public interest and what effect the merger would have on competition in the California marketplace for wireless telephone customers.3333 In addition, the ALJ’s Ruling (8/11/11) requested additional information about the competitive impacts of the merger, including, but not limited to, asking the parties to analyze and discuss the implications, if any, for California of the economic and engineering analysis that AT&T filed at the FCC in WT Docket No. 11-65 on July 25-26, 2011.3434 AT&T and T-Mobile argued that the merger would have no negative competitive impacts and would enhance competitiveness.3535 In response to the OII and the ALJ’s Ruling (8/11/11), TURN, in conjunction with its expert witness Dr. Roycroft, developed and presented substantial and compelling evidence that the transaction would have significant anti-competitive impacts both nationally and in California through the elimination of one of the four major wireless competitors. These impacts would include a significant increase in AT&T’s market power leading to significant price increases.3636 These conclusions were based upon TURN’s expert

3232 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 5-5 and p. 10. 3333 OII, pp. 12-13.3434 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/11/11) p. 9. 3535 Response of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities, And T-Mobile West Corporation d/b/a T-Mobile (U-3056-C) To August 11, 2011 Ruling Of ALJ Requesting Additional Information Public Version (8/22/11), pp. 7-12.3636 Opening Comments of TURN (7/6/11), pp. 4-6; Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (7/6/11), pp. 29-52; Comments of TURN on August 11, 2011 ALJ Ruling (8/22/11), pp. 22-25; Supplemental Declaration of Trevor R. Roycroft, Ph.D. In Response to Issues Raised in the ALJ August 11, 201 Ruling On Behalf of TURN (8/22/11), pp. 2-11; Combined Comments on August 22, 2011 Filings; Reply Comments on July 6, 2011 Opening Comments; and Replies to the August 5, 2011 Market Definition Brief of TURN (8/29/11), pp. 19-25; 26-31; Reply Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (8/29/11), pp. 32-43; 48-75.

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witness’s extensive market share analysis of AT&T’s economic and engineering models. Dr. Roycroft utilized the U. S. Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) Horizontal Merger Guidelines, which use the Herfindahl-Hirschmann Index (“HHI”) to assess market share and concentration. TURN’s analysis identified numerous structural problems and faulty assumptions with the models that demonstrated that the models are biased and specifically designed to “prove” that the merger had significant benefits for consumers. Dr. Roycroft concluded that the models have too many flaws to provide a reliable basis for the Commission to evaluate potential merger benefits.3737

Of interest, the Court in in New Cingular Wireless PCS, LLC et al. v. Public Utilities Commission, et al., supra, 246 Cal. App. 4th 784, stated “[a] key piece of the CPUC’s record-building process in Docket No. I11-06-009 was economic analysis, which is often at the core of antitrust litigation, and is something that typically requires examination of voluminous financial data. In this area, the bulk of the work was done by TURN’s expert economist, Dr. Trevor Roycroft, who filed a detailed affidavit setting forth his opinions in August 2011.” (Id. at p. 792.)

Hence, we find that TURN’s analysis of the competitive impacts of the merger, especially its extensive analysis of AT&T’s economic and engineering models, made a substantial contribution to the proceeding by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

B. Market Definition3838 Another major issue identified in the OII was how the relevant product and geographic markets should be defined. The Commission requested input on these issues both in the OII, and

3737 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/1/11), p. 9.; ALJ Ruling Placing Workshop Materials in the Record and Memorializing Several Electronic Mail Rulings (9/19/11); ALJ Ruling Establishing Deadlines for Comments on Merger-Related Economic and Engineering Analyses (11/16/11), p. 2; Comments of TURN on ALJ Ruling Establishing Deadlines for Comments on Merger-Related Economic and Engineering Analysis (12/12/11), pp. 1-4; Supplemental Declaration of Trevor R. Roycroft, Ph.D on Behalf of TURN (12/12/11), pp. 2-40.3838 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 6-7.

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again in an ALJ Ruling (7/9/11) asking parties to file briefs specifically focused on market definition issues.3939

In its Opening Comments to the OII, TURN and TURN’s expert witness Dr. Roycroft argued that it would be an error to consider wireless as part of one big communications market as proposed by AT&T.4040 Rather, TURN proposed that the Commission focus on terrestrial facilities-based wireless mobility providers (vs. including fixed wireless broadband and satellite providers). TURN also advocated that the Commission consider the various factors that consumers take into account when choosing a wireless provider such as geographic coverage, plan type, handset choice, payment approach, etc.4141

Dr. Roycroft also recommended, among other things, that the Commission focus on a prepaid and postpaid market segmentation; consider the impact on handset type and availability if the merger were approved; and take into account the fact that regional carriers such as Metro PCS and Cricket with prepaid business models are very reliant on roaming thus presenting very little competitive threat to the larger facilities-based carriers such as AT&T.4242

Further, in TURN’s Reply Brief regarding market definition, TURN and Dr. Roycroft disputed AT&T’s arguments that the Commission should only consider “local” markets. TURN argued that the Commission should consider local, regional and national aspects of the geographic market. With regards to the product market definition, TURN rebutted AT&T’s arguments that there are not separate prepaid and postpaid markets.4343

3939 OII, p. 13; ALJ Ruling Setting Briefing Schedule (7/19/11) p. 2. 4040 Opening Brief Of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities, and T-Mobile West Corporation, d/b/a T-Mobile (U-3056-C) On Relevant Market Definitions Public Version – Confidential Information and Highly Confidential Information Redacted, p. 1.4141 Opening Comments of TURN (7/6/11), pp. 6-8; Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (7/6/11), pp. 17-27; Opening Brief of TURN on Market Definition Issues (8/5/11).4242 Combined Comments on August 22, 2011 Filings; Reply Comments on July 6, 2011 Opening Comments, and Replies to the August 5, 2011 Market Definition Brief of TURN (8/29/11), pp. 19-25; 26-31; Reply Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (8/29/11).4343 Combined Comments on August 22, 2011 Filings; Reply Comments on July 6, 2011 Opening Comments, and Replies to the August 5, 2011 Market Definition Brief of TURN (8/29/11),

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TURN’s work on the issue of market value was reflected in questions set forth in the ALJ Ruling setting Briefing Schedule (7/19/11). Hence, we find that TURN’s work on this issue made a substantial contribution to the proceeding by assisting the Commission in the making of a ruling and by developing a record upon which it could rely in preparing comments for the FCC.

C. Efficiencies4444

The OII asked what merger-specific and verifiable efficiencies would likely be realized by the merger.4545 AT&T took the position that the merger would produce immense network and spectrum efficiencies.4646 TURN argued that while AT&T might achieve synergies and efficiencies in terms of reduced costs from the combination of AT&T and T-Mobile, there was no evidence to suggest, as argued by AT&T, that the benefits of the merger would accrue to consumers.4747 TURN’s expert witness Dr. Roycroft explained, from an economic perspective, “these synergies represent economies of scale – the average cost of operating the combined AT&T/T-Mobile is significantly lower than the stand-alone operation of the two carriers.”4848 Dr. Roycroft further explained that the synergies AT&T has identified will all result from cost savings such as “improved bargaining power for equipment purchases, reducing operations costs resulting from combining network operations, headcount reductions, (which will negatively impact employment), and the reduction of corporate overheads, such as management layers and the need to support the T-Mobile brand.”4949 TURN points out, however, that there is no evidence to

pp. 19-25; 26-31; Reply Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (8/29/11).4444 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), p. 7. 4545 OII, p. 13.4646 Comments of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities AndT-Mobile West Corporation d/b/a T-MOBILE (U-3056-C) Public Version – Confidential Information And Highly Confidential Information Redacted (7/6/11), p. 17.4747 Opening Comments of TURN (7/6/11), pp. 9-10; TURN’s Opening Comments Declaration of Trevor Roycroft, Ph.D. (7/6/11) Paragraph 17, p. 7. 4848 Opening Comments of TURN (7/6/11), pp. 9-10;TURN’s Opening Comments Declaration of Trevor Roycroft, Ph.D. (7/6/11) Paragraph 17, p. 7.4949 Opening Comments of TURN (7/6/11), pp. 9-10;TURN’s Opening Comments Declaration of Trevor Roycroft, Ph.D. (7/6/11) Paragraph 18, pp. 7-8.

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suggest that these benefits will accrue to consumers. TURN argued that, given the dramatic negative effect of the proposed merger on competition, consumers would not reap any benefits in the form of price reductions or any other benefits that a competitive market is supposed to create.5050

Hence, we find that TURN’s work on the issue of efficiencies made a substantial contribution to the proceeding by assisting the Commission in in developing a record upon which it could rely in preparing comments for the FCC.

D. Innovation Effects5151

The OII also asked whether the proposed merger would promote or constrain innovation. More specifically, would the merger increase, maintain, or diminish facilities and competition for wireless transmission services such as distributed antenna systems (DAS) and open distributed antenna systems (O-DAS)? 5252

TURN disagreed with AT&T’s assertion that the proposed merger would promote innovation.5353 TURN argued that is highly likely that the merger will have a chilling effect on innovation. TURN explained that T-Mobile and AT&T Mobility have taken very different paths toward developing and applying their respective business models. TURN asserted that since AT&T is by far the larger of the two carriers, it is reasonable to assume that in a combined entity AT&T’s approach to the wireless business will be the predominant influence over prices, service offerings, network design and deployment, as well as dictating what restrictions will be placed on wholesale and retail customers.5454

5050 Opening Comments of TURN (7/6/11), pp. 9-10; Declaration of Dr. Trevor Roycroft on Behalf of TURN (7/6/11), pp. 58-63. 5151 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), p. 7. 5252 OII, p. 13.5353 Opening Comments of AT&T (7/6/11), pp. 8-9: AT&T argued that the proposed merger would promote innovation by creating a more robust mobile broadband platform that can better support innovative products and services and by enabling more widespread deployment of faster LTE services. AT&T also argued that the merger would not have any negative effects on distributed antenna systems, which AT&T would continue to deploy and use where they make sense.5454 Opening Comments of TURN (7/6/11), pp. 10-13.

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In his Declaration, TURN’s expert witness Dr. Roycroft explained that T-Mobile is a “maverick” that undercuts AT&T prices, and is in the process of rolling out broadband data speeds far in excess of AT&T’ Mobility’s, thereby stimulating innovation in the wireless markets. In his expert opinion, if the merger was approved, it would diminish market incentives that exist today due to T-Mobile’s presence as an independent entity, and AT&T would have less incentive to take full advantage of the engineering efficiencies that would be theoretically enabled by the merger. Given that the number of choices for broadband mobility will be diminished as a result of the combination, TURN’s expert witness found that the potential negative impact on innovation from this transaction is substantial.5555

Hence, we find that TURN’s work on the issue of innovation effects made a substantial contribution to the proceeding by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

E. Special Access and Backhaul5656

The OII asked a number of questions relating to the impact of the proposed merger on special access and backhaul services utilized by wireless carriers to connect the wireless antennas to other components of a wireless carrier’s network.5757

In response to AT&T’s assertion that the merger poses no backhaul or special access concerns,5858 TURN’s expert witness Dr. Roycroft examined the backhaul market and explained how T-Mobile has been a major force in the market in seeking alternative sources for backhaul and special access services from providers other than the ILECs such as AT&T. Dr. Roycroft further explained that these services are not only critical to the operations of wireless carriers, but can comprise as much as 30% of a wireless carrier’s operating expenses. Hence, Dr. Roycroft concluded that if AT&T absorbed T-

5555 Declaration of Dr. Trevor Roycroft on Behalf of TURN (7/6/11), pp. 64-67.5656 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 7-8. 5757 OII, pp. 13-14. 5858 Comments of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities And T-Mobile West Corporation d/b/a T-MOBILE (U-3056-C) Public Version – Confidential Information And Highly Confidential Information Redacted (7/6/11), p. 46.

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Mobile, T-Mobile would be buying backhaul exclusively from AT&T eliminating a driving force for competitive backhaul solutions.5959

Hence, we find that TURN’s work on the issue of special access and backhaul services made a substantial contribution to the proceeding by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

F. Quality of Service and Spectrum Issues6060

Another important issue raised by the OII and the ALJ Ruling (8/11/11) was the impact of the merger on service quality for California consumers. The Commission inquired as to the relationship between AT&T’s ability to acquire more spectrum and service quality given that AT&T had alleged that a driving force behind the merger was AT&T’s critical need for spectrum.6161

Contrary to AT&T’s argument that the merger would improve the quality of service for California consumers,6262 TURN argued that the merger would not maintain or improve service quality, but would most likely result in a decline in service quality. TURN supported this position through Dr. Roycroft’s analysis, which demonstrated that AT&T’s well-documented service quality problems are not due to a lack of spectrum, but lack of sufficient backhaul capacity and a failure to deploy technology to use its spectrum efficiently. Analyzing responses to the Commission’s data requests, Dr. Roycroft concluded that AT&T controls more spectrum in California than any other retail wireless carrier even before the proposed acquisition of Qualcom’s 700 MHz spectrum. He further opined that the combined AT&T and T-Mobile spectrum would increase AT&T’s statewide spectrum by about 62%. The data further showed that AT&T has not used between 30 and 40% of the spectrum it currently holds in California. Dr. Roycroft also disputed AT&T’s

5959 Opening Comments of TURN (7/6/11), pp. 13-16; Declaration of Dr. Trevor Roycroft on Behalf of TURN (7/6/11), pp. 67-102.6060 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 8-9. 6161 OII, p. 14.6262 Comments of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities And T-Mobile West Corporation d/b/a T-MOBILE (U-3056-C) Public Version – Confidential Information And Highly Confidential Information Redacted (7/6/11), p. 10.

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claim that the merger will result in the build out of LTE to areas where 97% of U.S. and CA population resides, and if the merger does not occur LTE build out will only reach 80% of the population.6363

Hence, we find that TURN’s work on quality of service and spectrum issues made a substantial contribution to the proceeding by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

G. Conditions and Mitigation Measures6464

The OII also asked whether the Commission should consider conditions or mitigation measures to prevent significant adverse consequences which may result from the merger; and, if so, what those conditions or mitigation measures should be.6565 The ALJ Ruling (8/11/11) Ruling also requested additional information on potential mitigation measures,6666 and, as discussed above under Procedural Contributions, included questions on mitigation measures recommended by TURN.

Contrary to AT&T’s position that the merger would not produce significant adverse consequences and that no conditions or mitigation measures were necessary,6767 TURN took the position that the proposed merger had so many negative effects that it should be rejected. In response to specific questions about possible mitigation measures raised by the Commission, TURN proposed detailed mitigation measures that included:

6363 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/1/11), pp. 6-7; Opening Comments of TURN (7/6/11), pp. 16-23; Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (7/6/11), pp. 67-102; Comments of TURN on August 11, 2011 ALJ Ruling (8/22/11), pp. 20-22; Reply Declaration of Trevor R. Roycroft (8/29/11), pp. 43-48.6464 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 9-10. 6565 OII, p. 15: Should the Commission consider conditions or mitigation measures to prevent significant adverse consequences which may result from the merger? What, if any, should those conditions or measures be?6666 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/1/11), pp. 9-10. 6767 Comments of New Cingular Wireless PCS, LLC (U-3060-C), Its Affiliated Entities And T-Mobile West Corporation d/b/a T-MOBILE (U-3056-C) Public Version – Confidential Information And Highly Confidential Information Redacted (7/6/11), p. 52.

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- Promoting competitiveness in the backhaul market for wireless services;

- Promoting additional wireless competition for different types of customers;

- Maintaining incentives for innovation;

- Enhancing handset competition;

- Maintaining competitive access for roaming services;

- Maintain incentives for price competition and competitive terms including early termination fees;

- Guarantees to ensure benefits to CA and CA consumers promised by AT&T of the merger are realized;

- Improve wireless service quality; and

- Data reporting and monitoring requirements.6868

Hence, we find that TURN’s work on the issue of conditions and mitigation measures made a substantial contribution to the proceeding by assisting the Commission in the making of its ALJ Ruling (8/11/11) and by developing a record upon which the Commission could rely in preparing comments for the FCC.

k. On page 16, in the second full paragraph, first sentence, delete the words “In short,” and insert:

As discussed above,

l. On page 16, in the second full paragraph, delete the third and fourth sentences in their entirety.

m. On page 17, at the end of the second full paragraph ending with the word “proceeding” insert the following new Headings and paragraphs:

6868 Opening Comments of TURN (7/6/11), pp. 24-26.: Declaration of Trevor R. Roycroft, Ph.D. on Behalf of TURN (7/6/11), pp. 107-114; Comments of TURN on August 11, 2011 ALJ Ruling (8/22/11), pp. 2-20; Combined Comments on August 22, 2011 Filings, Reply Comments on July 6, 2011 Opening Comments, and Replies to the August 5, 2011 Market Definition Brief of TURN (8/29/11), pp. 31-34; Supplemental Declaration of Trevor R. Roycroft, Ph.D. In Response to Issues Raised in the ALJ August 11, 2011 Ruling On Behalf of TURN (8/22/11), pp. 106-108.

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5.3. Workshops, Discovery and Procedural Issues

A. Workshops6969

TURN participated in all three Commission sponsored workshops. In addition, TURN sponsored Dr. Roycroft as an expert panelist for the July 22, 2011 workshop, which focused on the effect of the proposed merger on customer service, employment, and California’s economy. Dr. Roycroft was specifically invited by the Assigned Commissioner to be an expert for that workshop. Dr. Roycroft presented a summary of the arguments sponsored by TURN as to why the merger should be rejected as detrimental to customer service and the economy. At all three workshops, speakers from TURN presented their views, arguing that the proposed merger would have serious anticompetitive effects in California.7070 TURN also sought to have the transcripts from the public workshops posted and made available to the public. In an ALJ Ruling (7/19/11), the ALJ so ordered. Hence, we find that TURN’s participation in the workshops made a substantial contribution to the proceeding by informing the public about the effect of the proposed merger on consumers and by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

B. Discovery7171

As discussed above, TURN prevailed in numerous scheduling disputes (requests for extensions of time due to lack of production of merger related documents by AT&T) and discovery contests.7272 As a result of these preliminary rulings, TURN and all other parties in I.11-06-009 were able to obtain, subject to a protective order, thousands of pages of confidential data—including a financial model of the proposed merger that was essential for economic analysis of its impacts in California—in time to analyze and file

6969 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), p. 11. 7070 Email from Commissioner Sandoval 7/14/11; Transcript of 7/22/11 Workshop, pp. 98-105.7171 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 11-12. 7272 New Cingular Wireless PCS, LLC et al. v. Public Utilities Commission, et al. (2016) 246 Cal. App. 4th 784, 792, fn. 6 citing Decision No. 13-05-031, supra, at page 16 (“It is notable that TURN prevailed on all its issues relating to getting access to AT&T materials as well as in seeking extensions of time to permit TURN and other parties to analyze such materials and develop appropriate pleadings.”).

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detailed comments within the tight time-frames required by the schedule.7373

In addition to the questions set forth in the OII itself, the OII included detailed data requests in Appendices A and B.7474 In response to these data requests, thousands of documents were produced by AT&T, including voluminous materials filed with the Federal Communications Commission (“FCC”) and the Department of Justice (“DOJ”). As a signatory to the protective order,7575 TURN had access to all these documents and did a diligent review of them during the case. The OII invited parties to suggest additional data request via letters to the Director of Communications Division. TURN did submit such a letter identifying several additional data requests. A June 28, 2011 Assigned Commissioner and ALJ Ruling approved and included one of TURN’s additional data requests, i.e. “Provide all amendments, schedules, disclosure letters, exhibits, side-letters or other documents which structure, regulate or condition the terms of the Stock Purchase Agreement appended to your FCC Application.”7676

TURN points out that it had to engage in a long and protracted discovery battle with AT&T to get full access to AT&T’s economic and engineering models submitted to the FCC, especially the “new” versions of these models. Consequently, TURN made several requests to the Commission seeking extensions of time to permit a reasonable analysis of these models. A review of the record shows that TURN prevailed on all issues relating to getting access to AT&T materials as well as in seeking extensions of time to permit TURN and other parties to analyze such materials and develop appropriate pleadings.7777

7373 New Cingular Wireless PCS, LLC et al. v. Public Utilities Commission, et al. (2016) 246 Cal. App. 4th 784, 792.7474 OII, p. 16, see also Appendices A and B. 7575 The OII included a Protective Order to limit access to confidential information that may be filed in the proceeding. See I.11-06-009, Appendix C.7676 Letter from William R. Nusbaum to Jack Leutza (6/20/11); Joint Assigned Commissioner’s and Administrative Law Judge’s Ruling Addressing Various Procedural Issues (6/28/11), Appendix 1, Data Request 6; TURN’s letter to Paul Clanon, Executive Director, CPUC (7/26/11); Letter from Paul Clanon to TURN (8/1/11).7777 ALJ Ruling Requesting Additional Information and Addressing Various Procedural Issues (8/11/11) extending submissions on the AT&T models to 8/22/11, pp. 9, 13, Opening Paragraph

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Hence, we find that TURN’s discovery work made a substantial contribution to the proceeding by assisting the parties in understanding the effects if the proposed merger, and by assisting the Commission in developing a record upon which it could rely in preparing comments for the FCC.

5.4 Duplication of Effort (§§ 1801.3(f) & 1802.5)7878

TURN submits that the Commission should find that TURN took all reasonable steps to avoid duplication and, to the extent that there was any overlap, TURN’s work supplemented and complemented that of DRA and the other consumer parties. After reviewing the evidence in the record, we find that TURN made a good faith effort to avoid duplication of effort when working with other parties.

5.5 Reasonableness of Requested Compensation (§§ 1801 & 1806)

A. Concise explanation as to how the cost of Claimant’s participation bears a reasonable relationship with benefits realized through participation

TURN submits that its participation led to the development of a robust record such that if the proceeding went to fruition with a decision on the merits the Commission would have had a solid basis for its analysis of the merger to support whatever findings it would have made about whether the merger was in the public interest and any recommended specific merger conditions.7979

TURN states that it spent substantial time and resources to thoroughly review the evidence and analyze whether the proposed transaction would benefit consumers. Based on that analysis, TURN

1; Motion of TURN for an Extension of Time (8/17/11); ALJ Ruling Regarding Information Filed Under Protective Orders (8/31/11), pp. 8-10; ALJ Ruling Establishing Deadline for Comments of Merger-Related Economic and Engineering Analyses (11/16/11).7878 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), pp. 12-13. 7979 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request), Part III. A., pp. 13-14.

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asserts that it represented the consumer interest by demonstrating that the transaction would harm competition in California, restrict innovation, and likely lead to an increase in rates. TURN asserts that, even if the merger had been approved, the likelihood of mitigation measures proposed by TURN would have also benefitted California consumers by limiting negative impacts on competition or rate increases.8080

TURN states that the proceeding was long and complex involving many challenging issues for the Commission and the parties. TURN was an active participant and one of the few parties to present materials and arguments on almost all issues.8181 In light of the importance and complexity of the issues addressed, TURN asserts that its role in developing a robust record for the Commission’s review, and the unusual ending in no decision on the merits, the Commission should find that TURN’s intervenor compensation request bears a reasonable relationship to the benefits to consumers.8282

We agree with TURN’s representations set forth above and find that the cost of TURN’s participation bears a reasonable relationship to the benefit to consumers.

B. Reasonableness of Hours Claimed, Allocation of Hours by Issue, and Specific Claims.

In its Refiled Request for Intervenor Compensation, TURN asserts that its original intervenor compensation request sufficiently demonstrated the reasonableness of the requested amount of intervenor compensation. Hence, TURN has resubmitted its original intervenor compensation request as Attachment 1 to its refiled request.8383 TURN, however, supplements that showing with

8080 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request), Part III. A., pp. 13-14.8181 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request), Part III. A., pp. 13-14.8282 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request), Part III. A., p. 14.8383 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original

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additional information regarding the hours it spent on the merger review. TURN states that on a combined basis, TURN’s attorneys, policy director, and outside expert witness devoted roughly 155 hours to the review and analysis of competitive impacts of the proposed merger, 112 hours to analysis of AT&T’s economic and engineering models, and 71 hours to market definition issues.8484

The initial OII identified the competitive impacts and market definition issues as central to the Commission’s review of the proposed merger, while the work with AT&T’s models proved to be an important part of that review. TURN states that it also recorded approximately 64 hours for the quality of service and spectrum category of issues, and 36 hours to developing and presenting mitigation measures.8585 TURN asserts that each category addressed matters the Commission had identified as part of its review through the initial OII or in a subsequent ruling requesting additional information. TURN submits that even a cursory review of TURN’s pleadings or presentation at workshops will confirm that the work product was always of the highest quality, particularly considering the ambitious if not aggressive schedule adopted for the proceeding.

TURN’s request also includes several categories that are not so easily assigned to specific substantive issues, as is typically the case with a request for compensation in a proceeding of this magnitude. TURN states there are approximately 51 hours associated with participation in the workshops used to further develop the record in this proceeding, 95 hours for work on procedural and discovery matters, and 91 hours deemed “general participation.”8686 The workshops were an essential part of the process in this proceeding; it would have been difficult if not impossible for TURN to achieve the breadth and depth of issue coverage it did without attendance and active engagement at those workshops.

Compensation Request), Part III. A., pp. 13-17.8484 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 17, see also fn. 32. 8585 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 17, fn. 32: TURN’s request also included an additional 99 hours of work on substantive issues that could not be broken out by specific category or activity (coded with “#” in the attached time sheets). Those hours should be treated as spread among the five categories of substantive categories described here.8686 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 18.

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TURN asserts that the number of hours on procedural and discovery matters, while higher than is typically TURN’s experience, reflects the more-litigious-than-usual nature of the proceeding, particularly with regard to gaining timely access to the AT&T models. Finally, the “general participation” category has long been used to cover activities necessary for effective participation but that are less easily allocated to specific issues.

TURN further asserts that “[i]n a proceeding such as this one, where the Commission sought to address a wide array of critical and often complex issues within a very compressed schedule, it should find reasonable this number of hours for work that was necessary but not assignable to specific issues.”8787

In its original Intervenor Compensation Claim, TURN requested $257,367.26 for its substantial contribution to D.12-08-025.8888 In its Refiled Request for Intervenor Compensation, TURN requests that the Commission award $255,944.03, the same amount originally awarded in D.13-05-031 (vacated by the Court in New Cingular).8989We have thoroughly reviewed TURN’s Refiled Request for Intervenor Compensation, including Attachment 1, and TURN’s Original Request for Intervenor Compensation, including Attachments 1-4. We note that Attachment 2 contains a breakdown of attorney and consultant hours. We find that the total number of hours claimed are reasonable, the allocation of hours by issue are reasonable, the specific hours claimed for attorney, expert, and advocate fees are reasonable, and the costs TURN incurred in participating in the proceeding are reasonable, as set forth in TURN’s Refiled Request for Intervenor Compensation, Attachment 1, PART III, in its entirety.9090

8787 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 18.8888 D.13-05-031 (vacated by the Court in New Cingular) discusses Commission disallowances, adjustments, and comments to TURN’s Original Intervenor Compensation Request, which reduced TURN’s award from the requested amount of $257,367.26 to $255,944.03. 8989 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 19. 9090 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Utility Reform Network of October 29, 2012 (“Original Compensation Request”), Part III, pp. 13-22; see also Original Compensation Request, Attachments 1-4.

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C. Commission Disallowances, Adjustments, and Comments

As stated above, TURN is no longer requesting $257,367.26 in intervenor compensation fees. In TURN’s Refiled Request for Intervenor Compensation, TURN is now requesting the $255,944.03, which is the amount the Commission awarded in D.13-05-031. However, because D.13-05-031 was vacated by the Court in New Cingular Wireless, it is necessary to discuss how the Commission arrived at that figure.

Resolution ALJ 281 allows for a Cost of Living Adjustment to hourly rates for work performed in 2012. In this proceeding, all work was performed in 2011 and TURN used the correct rates for the work it performed in 2011. TURN seeks a new rate of $230 for TURN’s expert Dr. Roycroft. The Commission approved Dr. Roycroft’s rate of $210 in 2010. TURN persuasively shows that Dr. Roycroft’s hourly billing rate is at the low end of the range and an increase in Dr. Roycroft’s hourly billing rate is warranted. His current billing rate to TURN is higher than the rate at which TURN is compensated. His experience is comparable to other experts with higher billing rates. Thus, we approve the higher hourly rate of $230 for Dr. Roycroft.

We have adjusted Attorney Nussbaum’s time by 3.5 hours as follows: One hour of time spent preparing TURN’s notice of intent to request intervenor compensation (September 1, 2011) has been moved to the Intervenor Compensation Claim Preparation section. Two items totaling 2.5 hours are not compensable: .5 hours assisting other intervenors with Commission rules for party status (June 15, 2011) and 2 hours communicating with the Attorney General (September 15, 2011)9191

Expenses must be reasonable. TURN has claimed the costs of 1,049 pages of internal copying at 20 cents per page plus additional copies at the UPS Store. TURN has previously requested and been awarded compensation for photocopying at this rate. However, after careful review, it appears that the market rate for photocopies is considerably lower than 20 cents. For example, the UPS Store on Van Ness Avenue in San Francisco charges 15 cents per page and

9191 TURN’s 2012 Request for Intervenor Compensation, Attachment 2, Attorney and Consultant Hours, pages 1, 3, and 4.

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offers discounts for volume copying. The per page charge for 100 copies is 10 cents. Based on this, we have reduced the award for photocopying to 10 cents per page for internal copying. For future intervenor compensation requests, we ask that TURN evaluate its internal photocopy expenses taking into account local market rates including volume discounts. In addition, TURN should include information on the number of pages copied and the per page cost.

Several corrections were made to TURN’s expense list resulting in a reduction of $11.35. First, TURN inadvertently cited the wrong amounts for “proceeding related phone calls and multi-party conference call charges” and “Hotel for LA workshop.” Based on review of TURN’s back up documentation, the requested amount for the hotel should be $59.57 and the requested amount for the phone calls should be $69.06. The requested amount for phone calls is reduced by $11.35 because this amount, claimed for calls on June 15, 2011, was listed twice in the back up documentation.

5.6 Conclusion

Based on the above, we find that TURN made a substantial contribution to the OII proceeding and to D.12-08-025 warranting an award of $255,944.03.

n. On page 18, in Heading 6, after the word “CforAT’s” insert:

Procedural and

o. On page 18, under revised Heading 6, insert the following as the first paragraph:

In New Cingular Wireless, the Court noted that the ALJ Ruling (8/11/11) reflects a position taken by CforAT.9292 Of importance, CforAT’s addressed one important substantive issue in the OII proceeding - the need for mitigation measures to ameliorate concerns about harms that the disability community might face if the proposed merger was to go forward.

p. On page 18, first full paragraph, before the words “CforAT substantively contributed” insert the following:

9292 New Cingular Wireless, supra, 246 Cal.App.4th at p. 794, fn. 8.

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First, we point out that if CforAT had not participated in the OII proceeding, customers with disabilities would not have been represented. Second, the evidence in the record reflects that

q. On page 18, in the first full paragraph, after the sentence ending with the words “unique and informed participation.” delete the next two sentences starting with “The Commission finds that CforAT’s” and ending with “resolved the proceedings on the merits.” and insert the following new paragraphs:

In its Refiled Request for Compensation, CforAT asserts that its participation in the proceeding advanced the Commission’s ability to effectively consider a key issue from the ALJ’s Ruling (8/11/11), including multiple sub-issues such as its evaluation of “competition serving different types of California customers,” efforts to “maintain or encourage choice and innovation in the handset market in California,” and efforts to “improve wireless service quality in California,” as well as direct consideration of the needs of vulnerable customers with disabilities as an additional relevant subject.9393 Lastly, CforAT asserts that because its substantive contributions were directly responsive to questions raised in the ALJ’s Ruling (8/11/11) and assisted in building the record in this proceeding, its participation was reasonable and should be compensated.9494

The Commission finds that CforAT’s contentions and arguments were pertinent and persuasive, and would have contributed to the Commission’s generation of a report or comments to the FCC discussing the merger. On the issues CforAT addressed, CforAT’s participation was of such merit that it would have materially influenced and therefore substantially assisted the Commission’s analysis if the Commission were to have resolved the proceeding on the merits.

Hence, we find that CforAT made a substantial contribution to the proceeding by assisting the Commission in developing an

9393 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, p. 5.9494 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), pp. 3-5; see also CforAT’s NOI filed on September 7, 2011 indicating that CforAT intended to address the issue of mitigation; ALJ Ruling (8/11/11) at pp. 9-10 (Question 11, including subparts a-j); CforAT’s Comments and Supporting Expert Declaration, 8/25/11, in response to ALJ Ruling (8/11/11) addressing the need for mitigation regarding issues affecting the disability community.

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evidentiary record, which includes appropriate mitigation measures for customers with disabilities, upon which the Commission could rely in preparing comments for the FCC.

r. On page 18, at the end of the first full paragraph, insert the following new headings and paragraphs as follows:

6.1 Duplication of Effort (§§ 1801.3(f) & 1802.5)

CforAT submits that it was the only party to address concerns about the way in which the proposed merger might impact the uniquely vulnerable community of people with disabilities, and to address potential mitigation measures related thereto. CforAT also submits that it did not seek to address issues where other parties had greater expertise.9595 (Cite) After reviewing the evidence in the record, we agree with CforAT and find no duplication of effort.

6.2. Reasonableness of Requested Compensation (§§ 1801 & 1806)

A. Concise explanation as to how the cost of Claimant’s participation bears a reasonable relationship with benefits realized through participation

CforAT asserts that it addressed the substantive issue of mitigation measures unique to the disability community in response to the ALJ’s Ruling (8/11/11). CforAT asserts that the modest costs incurred by CforAT to develop a record of appropriate mitigation measures unique to the disability community benefited the Commission as it prepared to consider the impact of the proposed merger on all citizens of California.9696 We agree with CforAT and find that the cost of CforAT’s participation bears a reasonable relationship to the benefit to consumers.

B. Reasonableness of Hours Claimed, Allocation of Hours by Issue, and Specific Claims.

9595 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), p. 5. 9696 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012, pp. 5-6.

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In its original Intervenor Compensation Claim, CforAT requested $23,014.17 for its substantial contribution to D.12-08-025 indicating it had spent approximately 67 hours working on the proceeding. In its Refiled Request for Intervenor Compensation, CforAT requests that the Commission award $20,286.42, the same amount originally awarded in D.14-06-026 (vacated by the Court in New Cingular).9797

CforAT asserts that the total amount of time claimed is modest and represents its focused effort on providing the Commission with information specifically requested in an ALJ Ruling (8/11/11) regarding potential mitigation measures. CforAT also asserts that it monitored the complex proceeding to evaluate where it could make additional contributions, while keeping time spent on this effort constrained.9898

CforAT’s points out that its final request is well below the estimates set forth in its NOI, which anticipated that the organization would expend 60 hours of attorney time and 30 hours of expert time on this proceeding. Because no final decision on the merits was reached, CforAT spent only very modest amounts of time reviewing the proposed decision and comments, and did not make any substantive filings during that portion of the proceeding.9999

CforAT asserts that all time spent by its internal experts was focused exclusively on mitigation. For counsel, time was divided between mitigation and general participation. Because of the need to review frequent filings, the portion of counsel’s time spent on general participation was relatively high; this was needed in order to follow the proceeding as it moved forward. CforAT points out that its counsel did not seek to conduct a detailed review of filings that did not directly impact issues of concern to the organization’s constituency. Thus, CforAT asserts that it spent relatively modest

9797 TURN’s Refiled Request for Intervenor Compensation, 7/11/16, p. 19. 9898 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), p. 5. 9999 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), p. 5.

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amounts of time reviewing documents considering the volume of material that was part of the record in this proceeding.100100

We find that the total number of hours claimed are reasonable, the allocation of hours by issue are reasonable, the specific hours claimed for attorney, expert, and advocate fees are reasonable, and the costs CforAT incurred in participating in the proceeding are reasonable, as set forth in CforAT’s Refiled Request for Intervenor Compensation, Attachment 1, PART III, in its entirety.101101

C. Commission Disallowances, Adjustments, and Comments

As stated above, in CforAT’s Refiled Request for Intervenor Compensation, CforAT is now requesting $20,286.42, which is the amount the Commission awarded in D.14-06-026 (vacated by the Court in New Cingular). Because D.14-06-026 has been vacated, it is necessary to discuss how the Commission arrived at that figure.

CforAT requests the hourly rate of $445 for Kasnitz’s 2012-2013 work. According to CforAT, the rate request equals Kasnitz’s previously adopted rate of $420 for her 2011 work in D.11-10-012, with the addition of the 2.2% cost-of-living increase authorized in Resolution ALJ-281, and an additional $15 per hour based on an increased level of experience and skill for Kasnitz. D.08-04-010 limits step increases to no more than two annual increases of no more than 5% each year within any given level of experience for each individual. Kasnitz has been an attorney for over almost 21 years and her previously approved hourly rates for an attorney in the 13+ years of experience level have previously maximized these two 5% step increases. We do not approve the additional $15 per hour increase for this reason, but we do apply the 2.2% COLA authorized in Resolution ALJ-281. The resultant hourly rate (rounded to the nearest $5 increment) is $430. We find this hourly rate to be reasonable and comparable to market rates paid to experts and advocates having comparable training and experience

100100 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), p. 5. 101101 CforAT’s Refiled Request for Intervenor Compensation, 7/11/16, Attachment 1 (Intervenor Compensation Claim of The Center for Accessible Technology of October 12, 2012 (“Original Compensation Request”), Part III, pp. 5-11, see also Original Compensation Request, Attachments 1-7.

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and offering similar services. We adopt an hourly rate of $430 for Kasnitz for 2012.

CforAT requests an hourly rate of $185 for Jon Mires 2011 work in this proceeding. Mires has no previously adopted rates for work before the Commission. According to CforAT, Jon Mires serves as CforAT’s Web Access Specialist. In the proceeding, he spent a small amount of hours reviewing the accessibility of the websites of the carriers that were proposing to merge and reported on his findings. This is typically the work he performs on a daily basis at CforAT.

Mires has been employed with CforAT since 2007 providing web accessibility evaluations, trainings for groups and individuals, and consulting with web developers trying to implement web accessibility guidelines. CforAT states that Mires acquired his Bachelor's degree in 2001 from Stanford University and a Master's degree from George Mason University in 2006. Mires regularly evaluates website accessibility and reports on accessibility barriers.

When engaged as a consultant to address web access issues, CforAT submits that Mires’ time is billed at $185. As such, this same hourly rate is sought for his work in this proceeding. According to CforAT, in this proceeding Mires performed the majority of all web access work. Examples of clients of CforAT who pay the prevailing rate for the service of Mires include Anthem Healthcare, Groove 11 and Primitive Logic.

CforAT submits that the requested 2011 hourly rate of $185 for Mires (the actual rate paid by clients of CforAT), is reasonable and within the rate range of ($125-$185) established for experts with 6 years of experience in Resolution ALJ-267. We find that Mires has no previous work before the Commission for which he has received compensation. D.08-04-010 at 7 (Rates for New Representatives) states:

Intervenor representatives who previously have not appeared before the Commission must make a showing in the compensation request to justify the proposed hourly rate. The requested rate must be within the established range of rates for any given level of experience, and, consistent with the guidelines in D.05-11-031, must take into consideration the rates previously awarded other

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representatives with comparable training and experience, and performing similar services. (See § 1806.)

CforAT failed to attach Mires resume or make the comparison outlined in D.08-04-010 or demonstrate that the requested hourly rate is similar to the rates awarded to other representatives with comparable training and experience and who have performed similar services before the Commission. We have reviewed Mires’ timesheets and examined the work he performed on behalf of CforAT. Unlike the substantive work performed by CforAT’s expert Belser (researching, drafting, editing testimony, and revising comments, etc.), Mires work (2.5 hrs. total), involved “a brief evaluation of ATT.com for accessibility, evaluating T-Mobile website for accessibility, and reporting to Belser the findings of brief website review.” We conclude that Mires’ work more closely resembles that of an “advocate” rather than an expert, and approve the hourly rate of $65 for his 2011 work here. The rate adopted here and for similar reasons was applied to the “Joint Parties” compensation award in R.09-07-027. The compensation decision in R.09-07-027 declined to find that the “Joint Parties” participants performed substantive when compared to the work of “experts” practicing before the Commission.

We disallow Kasnitz’s time on 8/22/11 for “finalizing testimony, comments and CforAT’s motion for party status” as this work is a non-compensable clerical task subsumed in the fees paid to attorneys.

Disallowances: Kasnitz (2011) 5.3 hrs.

We disallow Kasnitz’s time of 9/7/11 for “finalizing CforAT’s NOI” for the same reason outlined above.

Disallowances: Kasnitz (2011) .5 hr.

6.3 Conclusion

Based on the above, we find that CforAT made a substantial contribution to the OII proceeding and to D.12-08-025 warranting an award of $20,286.42.

s. On page 18, delete the word “Previously” from Heading 7 so that it reads: Amounts Awarded in this Proceeding.

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t. On page 18, in the first sentence under Heading 7, after the words

“New Cingular” insert the word:

Wireless

u. On page 18, and continuing on page 19, under Heading 7, delete the following language from the second and third sentences:

“To that extent, this decision supersedes” and ending with the words “in this proceeding. However, under”

v. On page 19, in the first paragraph continuing from page 18, before the words “the rationale” insert the word:

Under

w. On page 19, in the first paragraph continuing from page 18, delete the words “as set forth in those decisions (D.13-05-031 and D.14-06-026),” and insert:

as set forth above,

x. On page 19, in the first paragraph continuing from page 18, in finding (3) after the words “substantially contributed to” insert:

the OII proceeding and to

y. On page 22, in Findings of Fact 2, after the words “made substantial contribution to” insert:

The OII proceeding (I.11-06-009) and toz. On page 23, under the heading Conclusions of Law, in the first

sentence, delete the words “in D.13-05-031 and D.14-06-026” and insert:

above

2. Rehearing of D.17-04-007, as modified, is hereby denied.

3. This proceeding, I.11-06-009, is hereby closed.

This Order is effective today.

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Dated November 30, 2017, at San Francisco, California.

MICHAEL PICKER PresidentCARLA J. PETERMANLIANE M. RANDOLPHMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFEN Commissioners

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