SB 611,
as amended, Hill. Public Utilities Commission:begin delete organization: proceedings.end deletebegin insert Division of Ratepayer Advocates.end insert
(1) The
end delete
begin insertTheend insert California Constitution establishes the Public Utilities Commission, with jurisdiction over all public utilities, as defined.begin delete The California Constitution grants the commission certain general powers over all public utilities, subject to control by the Legislature, and authorizes the Legislature, unlimited by the other provisions of the California Constitution, to confer additional authority and jurisdiction upon the commission, that is cognate and germane to the regulation of public utilities.end delete
Existing law establishes the Division of Ratepayer Advocates within the commission to represent the interests of public utility customers and subscribers, with the goal of obtaining the lowest possible rate for service consistent with reliable and safe service levels. Existing law requires the Director of the Division of Ratepayer Advocates to submit an annual budget to the commission for final approval.begin delete Existing law requires the Governor to designate the president of the commission from among its members and requires the president to direct the executive director, the attorney, and other staff of the commission, except for the Division of Ratepayer Advocates, in accordance with commission policies and guidelines. Existing law directs the consumer protection and safety division of the commission to undertake certain railroad safety and gas pipeline safety functions.end delete
begin deleteThe bill would repeal the requirement that the president direct the executive director, attorney, and other staff of the commission.
The end deletebegin insertThis end insertbill would rename the Division of Ratepayer Advocates the Office of Ratepayer Advocates, would authorize the office to seek rehearings and judicial review of commission decisions, and would require that the director of the office develop a budget for the office that would be submitted to the Department of Finance for final approval.begin delete The bill would change current statutory references from the division of consumer protection and safety to the division of safety and enforcement.end delete
(2) Existing law authorizes the attorney for the commission, if directed to do so by the president, except as otherwise directed by vote of the commission, to intervene, if possible, in any action or proceeding involving any question arising pursuant to the Public Utilities Act. Existing law requires the attorney for the commission to commence, prosecute, and expedite the final determination of all actions and proceedings, and to generally perform all duties and services as attorney to the commission, as directed or authorized by the president, except as otherwise directed or authorized by vote of the commission.
end deleteThis bill would authorize the attorney for the commission, if directed to do so by the commission, to intervene, if possible, in any action or proceeding involving any question arising pursuant to the Public Utilities Act. This bill would require the attorney for the commission to commence, prosecute, and expedite the final determination of all actions and proceedings, and to generally perform all duties and services as attorney to the commission, as directed or authorized by the commission. The bill would provide that in carrying out his or her functions and duties, the attorney is subject to the State Bar Act and the Rules of Professional Conduct of the State Bar of California.
end delete(3) Existing law requires the executive director for the commission to keep a full and true record of all proceedings of the commission, issue all necessary process, writs, warrants, and notices, and perform such other duties as the president, or vote of the commission, prescribes. Existing law provides that the president may authorize the executive director to dismiss complaints or applications when all parties are in agreement thereto, in accordance with rules that the commission may prescribe.
end deleteThis bill would require the executive director to keep a full and true record of all proceedings of the commission, issue all necessary process, writs, warrants, and notices, and perform the other duties the commission prescribes. The bill would provide that the commission may authorize the executive director to dismiss complaints or applications when all parties are in agreement thereto, in accordance with rules that the commission may prescribe.
end delete(4) The California Constitution authorizes the commission to establish its own procedures, subject to statutory limitations or directions and constitutional requirements of due process, and to establish rules for all public utilities.
end deleteThis bill would correct certain statutory references from the commission adopting regulations to the commission adopting rules.
end delete(5) Existing law requires the commission, by January 10 of each year, to report to the Joint Legislative Budget Committee and appropriate fiscal and policy committees of the Legislature on all sources and amounts of funding and actual and proposed expenditures, including any costs to ratepayers, related to specified entities or programs established by the commission by order, decision, motion, settlement, or other action, including, but not limited to, the California Clean Energy Fund, the California Emerging Technology Fund, and the Pacific Forest and Watershed Lands Stewardship Council, and any entities or programs, other than those expressly authorized by statute, that are established by the commission under specified statutes.
end deleteThis bill would prohibit the Public Utilities Commission, by order, decision, motion, settlement, or other action from establishing a nonstate entity, as defined. The bill would prohibit the commission from entering into a contract with any nonstate entity in which a person serves as an owner, director, or officer while serving as a commissioner. The bill would provide that any contract between the commission and a nonstate entity is void and ceases to exist by operation of law, if a person who was a commissioner at the time the contract was awarded, entered into, or extended, on or after January 1, 2014, becomes an owner, director, or officer of the nonstate entity while serving as a commissioner.
end deleteThe California Constitution provides that the Legislature may remove a commissioner of the Public Utilities Commission for incompetence, neglect of duty, or corruption, 2⁄3 of the membership of each house concurring.
end deleteThis bill would provide that a commissioner who acts as an owner, director, or officer of a nonstate entity that was established prior to January 1, 2014, as a result of an order, decision, motion, settlement, or other action by the commission in which the commissioner participated, is negligent of his or her duty and may be removed pursuant to the California Constitution.
end delete(6) Existing law establishes certain procedures that are applicable to adjudication, rulemaking and ratesetting cases.
end deleteThis bill would prohibit an officer, employee, or agent of the commission that is assigned to assist in the prosecution of, or to testify in, an adjudication case, from participating in the decision of the case, or in the decision of any factually related proceeding. The bill would permit an officer, employee, or agent of the commission that is assigned to assist in the prosecution of an adjudication case to participate in reaching a settlement of the case, but would prohibit the officer, employee, or agent from participating in the decision of the commission to accept or reject the settlement, except as a witness or counsel in an open hearing or a specified closed hearing.
end delete(7) Existing law requires the commission to submit an annual report on the number of cases where resolution exceeded the time periods prescribed in scoping memos and the days that commissioners presided in hearings.
end deleteThis bill would additionally require the commission to include data on the disposition of applications for rehearing in that report.
end deleteVote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 305 of the Public Utilities Code is
2amended to read:
The Governor shall designate a president of the
4commission from among the members of the commission. The
5president shall preside at all meetings and sessions of the
6commission.
Section 307 of the Public Utilities Code is amended
8to read:
(a) The commission may appoint as attorney to the
10commission an attorney at law of this state, who shall hold office
11during the pleasure of the commission. In carrying out his or her
P5 1functions and duties, the attorney shall be subject to the State Bar
2Act and the Rules of Professional Conduct of the State Bar of
3California.
4(b) The attorney shall represent and appear for the people of the
5State of California and the commission in all actions and
6proceedings involving any question under this part or under any
7order or act of the commission. If directed to do so by the
8commission, the attorney shall intervene, if possible,
in any action
9or proceeding in which any such question is involved.
10(c) Except as provided in Section 1701.2, the attorney shall
11commence, prosecute, and expedite the final determination of all
12actions and proceedings directed or authorized by the commission,
13advise the commission and each commissioner, when so requested,
14in regard to all matters in connection with the powers and duties
15of the commission and the members thereof, and generally perform
16all duties and services as attorney to the commission that the
17commission may require of him
or her.
Section 308 of the Public Utilities Code is amended
19to read:
(a) The commission shall appoint an executive director,
21who shall hold office during its pleasure. The executive director
22shall be responsible for the commission’s executive and
23administrative duties and shall organize, coordinate, supervise,
24and direct the operations and affairs of the commission and
25expedite all matters within the commission’s jurisdiction.
26(b) The executive director shall keep a full and true record of
27all proceedings of the commission, issue all necessary process,
28writs, warrants, and notices, and perform such other duties as the
29commission, prescribes. The commission may authorize the
30executive director to dismiss complaints or applications when all
31parties are in agreement thereto, in accordance with
rules that the
32commission may prescribe.
33(c) The commission may appoint assistant executive directors
34who may serve warrants and other process in any county or city
35and county of this state.
Section 309.5 of the Public Utilities Code is
38amended to read:
(a) There isbegin delete within the commissionend delete an Office of
40Ratepayer Advocates to represent and advocate on behalf of the
P6 1interests of public utility customers and subscribers within the
2jurisdiction of the commission. The goal of the office shall be to
3obtain the lowest possible rate for service consistent with reliable
4and safe service levels. For revenue allocation and rate design
5matters, the office shall primarily consider the interests of
6residential and small commercial customers. The office may seek
7rehearing and judicial review of commission decisions pursuant
8to Article 2 (commencing with Section 1731) and Article 3
9
(commencing with Section 1756) of Chapter 9.
10(b) The director of the office shall be appointed by, and serve
11at the pleasure of, the Governor, subject to confirmation by the
12Senate.
13The director shall annually appear before the appropriate policy
14committees of the Assembly and the Senate to report on the
15activities of the division.
16(c) The director shall develop a budget for the office which shall
17be subject to final approval of the Department of Finance. As
18authorized in the approved budget, the office shall employ
19personnel and resources, including attorneys and other legal support
20staff at a level sufficient to ensure that customer and subscriber
21interests are effectively represented in all significant proceedings.
22The
office may employ experts necessary to carry out its functions.
23The director may appoint a lead attorney who shall represent the
24office, and shall report to and serve at the pleasure of the director.
25All attorneys performing services for the office shall report to and
26be directed by the lead attorney appointed by the director.
27(d) The commission shall develop appropriate procedures to
28ensure that the existence of the office does not create a conflict of
29roles for any employee. The procedures shall include, but shall
30not be limited to, the development of a code of conduct and
31procedures for ensuring that advocates and their representatives
32on a particular case or proceeding are not advising decisionmakers
33on the same case or proceeding.
34(e) The office may compel the production or
disclosure of any
35information it deems necessary to perform its duties from any
36entity regulated by the commission, provided that any objections
37to any request for information shall be decided in writing by the
38assigned commissioner or by the commission, if there is no
39assigned commissioner. The office shall have access, upon request,
40to all information provided to the commission, a commissioner,
P7 1or an officer or person employed by the commission pursuant to
2Section 314.
3(f) There is hereby created the Public Utilities Commission
4Ratepayer Advocate Account in the General Fund. Moneys from
5the Public Utilities Commission Utilities Reimbursement Account
6in the General Fund shall be transferred in the annual Budget Act
7to the Public Utilities Commission Ratepayer Advocate Account.
8The funds in the Public Utilities Commission Ratepayer
Advocate
9Account shall be utilized exclusively by the office in the
10performance of its duties as determined by the director. The director
11shall annually submit a staffing report containing a comparison of
12the staffing levels for each five-year period.
13(g) On or before January 10 of each year, the office shall provide
14to the chairperson of the fiscal committee of each house of the
15Legislature and to the Joint Legislative Budget Committee all of
16the following information:
17(1) The number of personnel years
utilized during the prior year
18by the Office of Ratepayer Advocates.
19(2) The total dollars expended by the Office of Ratepayer
20Advocates in the prior year, the estimated total dollars expended
21in the current year, and the total dollars proposed for appropriation
22in the following budget year.
23(3) Workload standards and measures for the Office of
24Ratepayer Advocates.
25(h) The office shall meet and confer in an informal setting with
26a regulated entity prior to issuing a report or pleading to the
27commission regarding alleged misconduct, or a violation of a law
28or a commission rule or order, raised by the office in a complaint.
29The meet and confer process shall be utilized in good faith to reach
30agreement on
issues raised by the office regarding any regulated
31entity in the complaint proceeding.
Section 309.7 of the Public Utilities Code is amended
33to read:
(a) The division of the commission responsible for
35safety and enforcement shall be responsible for inspection,
36surveillance, and investigation of the rights-of-way, facilities,
37equipment, and operations of railroads and public mass transit
38guideways, and for enforcing state and federal laws, regulations,
39orders, and directives relating to transportation of persons or
40commodities, or both, of any nature or description by rail. The
P8 1safety
and enforcement division shall advise the commission on
2all matters relating to rail safety, and shall propose to the
3commission rules, orders, and other measures necessary to reduce
4the dangers caused by unsafe conditions on the railroads of the
5state. The delegation of enforcement responsibility to the safety
6and enforcement division shall not diminish the power of other
7agencies of state government to enforce laws relating to employee
8or environmental safety, pollution prevention, or public health and
9safety.
10(b) In performing its duties, the
safety and enforcement division
11shall exercise all powers of investigation granted to the
12commission, including rights to enter upon land or facilities, inspect
13books and records, and compel testimony. The commission shall
14employ sufficient federally certified inspectors to ensure at the
15time of inspection that railroad locomotives and equipment and
16facilities located in class I railroad yards in California are inspected
17not less frequently than every 180 days, and all main and branch
18line tracks are inspected not less frequently than every 12 months.
19In performing its duties, the safety and enforcement division shall
20consult with representatives of railroad corporations, labor
21organizations representing railroad employees, and the Federal
22Railroad Administration.
23(c) The general counsel shall assign to the safety and
24enforcement division the personnel and attorneys necessary to
25fully utilize the powers granted to the commission by any state
26law, and by any federal law relating to rail transportation,
27including, but not limited to, the Federal Rail Safety Act (45 U.S.C.
28Sec. 421m, et seq.), to enforce safety laws, rules, regulations, and
29orders, and to collect fines and penalties resulting from the
30violation of any safety rule or regulation.
31(d) The activities of the safety
and enforcement division that
32relate to safe operation of common carriers by rail, other than those
33relating to grade crossing protection, shall also be supported by
34the fees paid by railroad corporations, if any, pursuant to Sections
35421 to 424, inclusive. The activities of the safety and enforcement
36division that relate to grade crossing protection shall be supported
37by funds appropriated therefor from the State Highway Account
38in the State Transportation Fund. On or before November 30 of
39each year, the commission shall report to the Legislature on the
40activities of the safety and enforcement division, and shall fully
P9 1document in the report all
expenditures of those funds in the audit
2report provided in subdivision (f) of Section 421.
Section 321.6 of the Public Utilities Code is amended
4to read:
(a) The commission shall do all of the following:
6(1) Develop, publish, and annually update an annual workplan
7that describes in clear detail the scheduled ratemaking proceedings
8and other decisions that may be considered by the commission
9during the calendar year. The plan shall include, but is not limited
10to, information on how members of the public and ratepayers can
11gain access to the commission’s ratemaking process and
12information regarding the specific matters to be decided. The plan
13shall also include information on the operation of the office of the
14public adviser and identify the names and telephone numbers of
15those contact persons responsible for specific cases and matters
16to be decided. The plan shall also include a statement that specifies
17activities
that the commission proposes to reduce the costs of, and
18rates for, energy, including electricity, and for improving the
19competitive opportunities for state agriculture and other rural
20energy consumers. The commission shall post the plan under the
21Official Documents area of its Internet Web site and shall develop
22a program to disseminate the information in the plan utilizing
23computer mailing lists to provide regular updates on the
24information to those members of the public and organizations
25which request that information.
26(2) Produce a complete accounting of its transactions and
27proceedings for the preceding year, together with other facts,
28suggestions, and recommendations that it deems of value to the
29people of the state and a statement that specifies the activities and
30achievements of the commission in reducing the costs of, and rates
31for, energy, including electricity, for state agriculture and other
32rural energy consumers.
33(3) Create a report on the number of cases where resolution
34exceeded the time periods prescribed in scoping memos,
35information on the disposition of applications for rehearings, and
36the days that commissioners presided in hearings.
37(4) Submit annually the plan, accounting, and report required
38by paragraphs (1), (2), and (3) to the Governor and Legislature no
39later than February 1 of each year.
P10 1(b) The president of the commission shall annually appear before
2the appropriate policy committees of the Senate and Assembly to
3report on the annual workplan access guide of the commission
4required pursuant to this section.
5(c) The president of the commission
shall annually appear before
6the appropriate policy committees of the Senate and Assembly to
7report on the annual report of the commission on the number of
8cases where resolution exceeded the time periods prescribed in
9scoping memos and the days that commissioners presided in
10hearings, pursuant to Section 13 of Chapter 856 of the Statutes of
111996.
Section 854.5 is added to the Public Utilities Code, to
13read:
(a) For purposes of this section, a “nonstate entity”
15means a company, corporation, partnership, firm, or other entity
16or group of entities, whether organized for profit or not for profit.
17(b) The commission, by order, decision, motion, settlement, or
18other action shall not establish a nonstate entity. This subdivision
19does not limit the authority of the commission to form an advisory
20committee or other body whose budget is subject to oversight by
21the commission and the Department of Finance.
22(c) The commission shall not enter into a contract with a
23nonstate entity in which a person serves as an owner, director, or
24officer while serving as a commissioner. Any contract between
25the
commission and a nonstate entity shall be void and cease to
26exist by operation of law, if a commissioner, who was a
27commissioner at the time the contract was awarded, entered into,
28or extended, becomes, on or after January 1, 2014, an owner,
29director, or officer of the nonstate entity while serving as a
30commissioner.
31(d) A commissioner who acts as an owner, director, or officer
32of a nonstate entity that was established prior to January 1, 2014,
33as a result of an order, decision, motion, settlement, or other action
34by the commission in which the commissioner participated, is
35negligent of his or her duty pursuant to Section 1 of Article XII of
36the California Constitution, for which the commissioner may be
37removed pursuant to that section.
Section 958.5 of the Public Utilities Code is amended
39to read:
(a) Twice a year, or as determined by the commission,
2each gas corporation shall file with the commission’s safety and
3enforcement division a gas transmission and storage safety report.
4The safety and enforcement division shall review the reports to
5monitor each gas corporation’s storage and pipeline-related
6activities to assess whether the projects that have been identified
7as high risk are being carried out, and
to track whether the gas
8corporation is spending its allocated funds on these storage and
9pipeline-related safety, reliability, and integrity activities for which
10they have received approval from the commission.
11(b) The gas transmission and storage safety report shall include
12a thorough description and explanation of the strategic planning
13and decisionmaking approach used to determine and rank the gas
14storage projects, intrastate transmission line safety, integrity, and
15reliability, operation and maintenance activities, and inspections
16of its intrastate transmission lines. If there has been no change in
17the gas corporation’s approach for determining and ranking which
18projects and activities are prioritized since the previous gas
19transmission and storage safety report, the subsequent report may
20reference the immediately preceding report.
21(c) If the commission’s
safety
and enforcement division
22determines that there is a deficiency in a gas corporation’s
23prioritization or administration of the storage or pipeline capital
24projects or operation and maintenance activities, the division shall
25bring the problems to the commission’s immediate attention.
Section 1701.1 of the Public Utilities Code is amended
27to read:
(a) The commission, consistent with due process,
29public policy, and statutory requirements, shall determine whether
30a proceeding requires a hearing. The commission shall determine
31whether the matter requires a quasi-legislative, an adjudication,
32or a ratesetting hearing. The commission’s decision as to the nature
33of the proceeding shall be subject to a request for rehearing within
3410 days of the date of that decision. If that decision is not appealed
35to the commission within that time period it shall not be
36subsequently subject to judicial review. Only those parties who
37have requested a rehearing within that time period shall
38subsequently have standing for judicial review and that review
39shall only be available at the conclusion of the proceeding. The
40commission shall render its decision
regarding the rehearing within
P12 130 days. The commission shall establish rules regarding ex parte
2communication on case categorization issues.
3(b) The commission upon initiating a hearing shall assign one
4or more commissioners to oversee the case and an administrative
5law judge where appropriate. The assigned commissioner shall
6schedule a prehearing conference. The assigned commissioner
7shall prepare and issue by order or ruling a scoping memo that
8describes the issues to be considered and the applicable timetable
9for resolution.
10(c) (1) Quasi-legislative cases, for purposes of this article, are
11cases that establish policy, including, but not limited to,
12
rulemakings and investigations which may establish rules affecting
13an entire industry.
14(2) Adjudication cases, for purposes of this article, are
15enforcement cases and complaints except those challenging the
16reasonableness of any rates or charges as specified in Section 1702.
17(3) Ratesetting cases, for purposes of this article, are cases in
18which rates are established for a specific company, including, but
19not limited to, general rate cases, performance-based ratemaking,
20and other ratesetting mechanisms.
21(4) “Ex parte communication,” for purposes of this article,
22means any oral or written communication between a decisionmaker
23and a person with an interest in a matter before the commission
24concerning substantive, but not procedural issues, that does not
25occur in a public hearing, workshop, or other public proceeding,
26
or on the official record of the proceeding on the matter. “Person
27with an interest,” for purposes of this article, means any of the
28following:
29(A) Any applicant, an agent or an employee of the applicant,
30or a person receiving consideration for representing the applicant,
31or a participant in the proceeding on any matter before the
32commission.
33(B) Any person with a financial interest, as described in Article
341 (commencing with Section 87100) of Chapter 7 of Title 9 of the
35Government Code, in a matter before the commission, or an agent
36or employee of the person with a financial interest, or a person
37receiving consideration for representing the person with a financial
38interest.
39(C) A representative acting on behalf of any civic,
40environmental, neighborhood, business, labor, trade, or similar
P13 1organization who intends to
influence the decision of a commission
2member on a matter before the commission.
3The commission shall by
rule adopt and publish a definition of
4decisionmakers and persons for purposes of this section, along
5with any requirements for written reporting of ex parte
6communications and appropriate sanctions for noncompliance with
7any rule proscribing ex parte communications. The rule shall
8provide that reportable communications shall be reported by the
9party, whether the communication was initiated by the party or
10the decisionmaker. Communications shall be reported within three
11working days of the communication by filing a “Notice of Ex Parte
12Communication” with the commission in accordance with the
13procedures established by the commission for the service of that
14notice. The notice shall include the following information:
15(i) The date, time, and location of the communication, and
16whether it was oral, written, or a combination.
17(ii) The identity of the recipient and the person initiating the
18communication, as well as the identity of any persons present
19during the communication.
20(iii) A description of the party’s, but not the decisionmaker’s,
21communication and its content, to which shall be attached a copy
22of any written material or text used during the communication.
Section 1701.2 of the Public Utilities Code is
24amended to read:
(a) If the commission pursuant to Section 1701.1 has
26determined that an adjudication case requires a hearing, the
27procedures prescribed by this section shall be applicable. The
28assigned commissioner or the assigned administrative law judge
29shall hear the case in the manner described in the scoping memo.
30The scoping memo shall designate whether the assigned
31commissioner or the assigned administrative law judge shall preside
32in the case. The commission shall provide by rule for peremptory
33challenges and challenges for cause of the administrative law judge.
34Challenges for cause shall include, but not be limited to, financial
35interests and prejudice. The rule shall provide that all
parties are
36entitled to one peremptory challenge of the assignment of the
37administrative law judge in all cases. All parties are entitled to
38unlimited peremptory challenges in any case in which the
39administrative law judge has within the previous 12 months served
40in any capacity in an advocacy position at the commission, been
P14 1employed by a regulated public utility, or has represented a party
2or has been a party of interest in the case. The assigned
3commissioner or the administrative law judge shall prepare and
4file a decision setting forth recommendations, findings, and
5conclusions. The decision shall be filed with the commission and
6served upon all parties to the action or proceeding without undue
7delay, not later than 60 days after the matter has been
submitted
8for decision. The decision of the assigned commissioner or the
9administrative law judge shall become the decision of the
10commission if no further action is taken within 30 days. Any
11interested party may appeal the decision to the commission,
12provided that the appeal is made within 30 days of the issuance of
13the decision. The commission may itself initiate a review of the
14proposed decision on any grounds. The commission decision shall
15be based on the record developed by the assigned commissioner
16or the administrative law judge. A decision different from that of
17the assigned commissioner or the administrative law judge shall
18be accompanied by a written explanation of each of the changes
19made to the decision.
20(b) No officer, employee, or agent of the commission that is
21assigned to assist in the prosecution of,
to testify in, or to supervise
22the prosecution of an adjudication case before the commission,
23shall participate in the decision of the case, or in the decision of
24any factually related proceeding, including participation in or
25advising the commission as to findings of fact, conclusions of law,
26or orders. An officer, employee, or agent of the commission that
27is assigned to assist in the prosecution of an adjudication case may
28participate in reaching a settlement of the case, but shall not
29participate in the decision of the commission to accept or reject
30the settlement, except as a witness or counsel in an open hearing
31or a hearing closed pursuant to subdivision (d). The Legislature
32finds that the commission performs both prosecutorial and
33adjudicatory functions in an adjudication
case and declares its
34intent that an officer, employee, or agent of the commission,
35including its attorneys, may perform only one of those functions
36in any adjudication case, or factually related proceeding.
37(c) Ex parte communications shall be prohibited in adjudication
38cases.
39(d) Notwithstanding any other provision of law, the commission
40may meet in a closed hearing to consider the decision that is being
P15 1appealed. The vote on the appeal shall be in a public meeting and
2shall be accompanied with an explanation of the appeal decision.
3(e) Adjudication cases shall be resolved within 12 months of
4initiation unless the commission makes findings why that deadline
5cannot be met and issues an order extending that
deadline. In the
6event that a rehearing of an adjudication case is granted the parties
7shall have an opportunity for final oral argument.
8(f) (1) The commission may determine that the respondent
9lacks, or may lack, the ability to pay potential penalties or fines
10or to pay restitution that may be ordered by the commission.
11(2) If the commission determines that a respondent lacks, or
12may lack, the ability to pay, the commission may order the
13respondent to demonstrate, to the satisfaction of the commission,
14sufficient ability to pay potential penalties, fines, or restitution that
15may be ordered by the commission. The respondent shall
16demonstrate the ability to pay, or make other financial
17arrangements satisfactory to the commission, within seven days
18of the commission commencing an adjudication case. The
19commission may delegate to the attorney to the commission
the
20determination of whether a sufficient showing has been made by
21the respondent of an ability to pay.
22(3) Within seven days of the commission’s determination of the
23respondent’s ability to pay potential penalties, fines, or restitution,
24the respondent shall be entitled to an impartial review by an
25administrative law judge, of the sufficiency of the showing made
26by the respondent of the respondent’s ability to pay. The review
27by an administrative law judge of the ability of the respondent to
28pay shall become part of the record of the adjudication and is
29subject to the commission’s consideration in its order resolving
30the adjudication case. The administrative law judge may enter
31temporary orders modifying any financial requirement made of
32the respondent pending the review by the administrative law judge.
33(4) A respondent that is a public utility regulated under a rate
34of return or
rate of margin regulatory structure or that has gross
35annual revenues of more than one hundred million dollars
36($100,000,000) generated within California is presumed to be able
37to pay potential penalties or fines or to pay restitution that may be
38ordered by the commission, and, therefore, paragraphs (1) to (3),
39inclusive, do not apply to that respondent.
Section 1701.3 of the Public Utilities Code is amended
2to read:
(a) If the commission pursuant to Section 1701.1 has
4determined that a ratesetting case requires a hearing, the procedures
5prescribed by this section shall be applicable. The assigned
6commissioner shall determine prior to the first hearing whether
7the commissioner or the assigned administrative law judge shall
8be designated as the principal hearing officer. The principal hearing
9officer shall be present for more than one-half of the hearing days.
10The decision of the principal hearing officer shall be the proposed
11decision. An alternate decision may be issued by the assigned
12commissioner or the assigned administrative law judge who is not
13the principal hearing officer. The commission shall establish a
14procedure for any party to request the presence of a commissioner
15at a hearing. The
assigned commissioner shall be present at the
16closing arguments of the case. The principal hearing officer shall
17present the proposed decision to the full commission in a public
18meeting. The alternate decision, if any, shall also be presented to
19the full commission at that public meeting. The alternate decision
20shall be filed with the commission and shall be served on all parties
21simultaneously with the proposed decision.
22The presentation to the full commission shall contain a record
23of the number of days of the hearing, the number of days that each
24commissioner was present, and whether the decision was completed
25on time.
26(b) The commission shall provide by rule for peremptory
27challenges and challenges for cause of the administrative law judge.
28Challenges for cause shall include, but not be
limited to, financial
29interests and prejudice. All parties shall be entitled to unlimited
30peremptory challenges in any case in which the administrative law
31judge has, within the previous 12 months, served in any capacity
32in an advocacy position at the commission, been employed by a
33regulated public utility, or has represented a party or has been a
34party of interest in the case.
35(c) Ex parte communications are prohibited in ratesetting cases.
36However, oral ex parte communications may be permitted at any
37time by any commissioner if all interested parties are invited and
38given not less than three days’ notice. Written ex parte
39communications may be permitted by any party provided that
40copies of the communication are transmitted to all parties on the
P17 1same day. If an ex parte communication meeting is granted to any
2party, all other parties
shall also be granted individual ex parte
3meetings of a substantially equal period of time and shall be sent
4a notice of that authorization at the time that the request is granted.
5In no event shall that notice be less than three days. The
6commission may establish a period during which no oral or written
7ex parte communications shall be permitted and may meet in closed
8session during that period, which shall not in any circumstance
9exceed 14 days. If the commission holds the decision, it may permit
10ex parte communications during the first half of the interval
11between the hold date and the date that the decision is calendared
12for final decision. The commission may meet in closed session for
13the second half of that interval.
14(d) Any party has the right to present a final oral argument of
15its case before the commission. Those requests shall be scheduled
16in a timely manner. A quorum of the commission shall be present
17for the final oral
arguments.
18(e) The commission may, in issuing its decision, adopt, modify,
19or set aside the proposed decision or any part of the decision based
20on evidence in the record. The final decision of the commission
21shall be issued not later than 60 days after the issuance of the
22proposed decision. Under extraordinary circumstances the
23commission may extend this date for a reasonable period. The
2460-day period shall be extended for 30 days if any alternate
25decision is proposed pursuant to Section 311.
Section 1731 of the Public Utilities Code is amended
28to read:
(a) The commission shall set an effective date when
30issuing an order or decision. The commission may set the effective
31date of an order or decision prior to the date of issuance of the
32order or decision.
33(b) (1) After any order or decision has been made by the
34commission, any party to the action or proceeding, including the
35Office of Ratepayer Advocates, or any stockholder or bondholder
36or other party pecuniarily interested in the public utility affected,
37may apply for a rehearing in respect to any matters determined in
38the action or proceeding and specified in the application for
39rehearing. The commission may grant and hold a
rehearing on
40those matters, if in its judgment sufficient reason is made to appear.
P18 1No cause of action arising out of any order or decision of the
2commission shall accrue in any court to any corporation or person
3unless the corporation or person has filed an application to the
4commission for a rehearing within 30 days after the date of
5issuance or within 10 days after the date of issuance in the case of
6an order issued pursuant to either Article 5 (commencing with
7Section 816) or Article 6 (commencing with Section 851) of
8Chapter 4 relating to security transactions and the transfer or
9encumbrance of utility property.
10(2) The commission shall notify the parties of the issuance of
11an order or decision by either mail or electronic transmission.
12Notification of the parties may be accomplished by one of the
13following methods:
14(A) Mailing the order or decision to the parties to the action or
15proceeding.
16(B) If a party to an action or proceeding consents in advance to
17receive notice of any order or decision related to the action or
18proceeding by electronic mail address, notification of the party
19may be accomplished by transmitting an electronic copy of the
20official version of the order or decision to the party if the party
21has provided an electronic mail address to the commission.
22(C) If a party to an action or proceeding consents in advance to
23receive notice of any order or decision related to the action or
24proceeding by electronic mail address, notification of the party
25may be accomplished by transmitting a link to an Internet Web
26site
where the official version of the order or decision is readily
27available to the party if the party has provided an electronic mail
28address to the commission.
29(3) For the purposes of this article, “date of issuance” means
30the mailing or electronic transmission date that is stamped on the
31official version of the order or decision
32(c) No cause of action arising out of any order or decision of
33the commission construing, applying, or implementing the
34provisions of Chapter 4 of the Statutes of the 2001-02 First
35Extraordinary Session that (1) relates to the determination or
36implementation of the department’s revenue requirements, or the
37establishment or implementation of bond or power charges
38necessary to recover those revenue requirements, or (2) in the sole
39determination of the
Department of Water Resources, the expedited
40review of order or decision of the commission is necessary or
P19 1desirable, for the maintenance of any credit ratings on any bonds
2or notes of the department issued pursuant to Division 27
3(commencing with Section 80000) of the Water Code or for the
4department to meet its obligations with respect to any bonds or
5notes pursuant to that division, shall accrue in any court to any
6corporation or person unless the corporation or person has filed
7an application with the commission for a rehearing within 10 days
8after the date of issuance of the order or decision. The Department
9of Water Resources shall notify the commission of any
10determination pursuant to paragraph (2) of this subdivision prior
11to the issuance by the commission of any order or decision
12construing, applying, or implementing the provisions of Chapter
134 of the Statutes of the 2001-02 First
Extraordinary Session. The
14commission shall issue its decision and order on rehearing within
1520 days after the filing of the application.
Section 1756 of the Public Utilities Code is amended
18to read:
(a) Within 30 days after the commission issues its
20decision denying the application for a rehearing, or, if the
21application was granted, then within 30 days after the commission
22issues its decision on rehearing, or at least 120 days after the
23application is granted if no decision on rehearing has been issued,
24any aggrieved party, including the Office of Ratepayer Advocates,
25may petition for a writ of review in the court of appeal or the
26Supreme Court for the purpose of having the lawfulness of the
27original order or decision or of the order or decision on rehearing
28inquired into and determined. If the writ issues, it shall be made
29returnable at a time and place specified by court order and shall
30direct the
commission to certify its record in the case to the court
31within the time specified.
32(b) The petition for review shall be served upon the executive
33director and the general counsel of the commission either
34personally or by service at the office of the commission.
35(c) For purposes of this section, the issuance of a decision or
36the granting of an application shall be construed to have occurred
37on the date of issuance, as defined in paragraph (3) of subdivision
38(b) of Section 1731.
39(d) The venue of a petition filed in the court of appeal pursuant
40to this section shall be in the judicial district in which the petitioner
P20 1resides. If the petitioner is a business, venue shall be in the judicial
2district in which the petitioner has
its principal place of business
3in California.
4(e) Any party may seek from the Supreme Court, pursuant to
5California Rules of Court, an order transferring related actions to
6a single appellate district.
7(f) For purposes of this section, review of decisions pertaining
8solely to water corporations shall only be by petition for writ of
9review in the Supreme Court, except that review of complaint or
10enforcement proceedings may be in the court of appeal or the
11Supreme Court.
12(g) No order or decision arising out of a commission proceeding
13under Section 854 shall be reviewable in the court of appeal
14pursuant to subdivision (a) if the application for commission
15authority to complete the merger or acquisition was filed on
or
16before December 31, 1998, by two telecommunications-related
17corporations including at least one which provides local
18telecommunications service to over one million California
19customers. These orders or decisions shall be reviewed pursuant
20to the Public Utilities Code in existence on December 31, 1998.
Section 5900 of the Public Utilities Code is amended
23to read:
(a) The holder of a state franchise shall comply with
25the provisions of Sections 53055, 53055.1, 53055.2, and 53088.2
26of the Government Code, and any other customer service standards
27pertaining to the provision of video service established by federal
28law or regulation or adopted by subsequent enactment of the
29Legislature. All customer service and consumer protection
30standards under this section shall be interpreted and applied to
31accommodate newer or different technologies while meeting or
32exceeding the goals of the standards.
33(b) The holder of a state franchise shall comply with provisions
34of Section 637.5 of the Penal Code and the privacy
standards
35contained in Section 551 et seq. of Title 47 of the United States
36Code.
37(c) The local entity shall enforce all of the customer service and
38protection standards of this section with respect to complaints
39received from residents within the local entity’s jurisdiction, but
40it may not adopt or seek to enforce any additional or different
P21 1customer service or other performance standards under Section
253055.3 or subdivision (q), (r), or (s) of Section 53088.2 of the
3Government Code, or any other authority or provision of law.
4(d) The local entity shall, by ordinance or resolution, provide a
5schedule of penalties for any material breach by a holder of a state
6franchise of this section. No monetary penalties shall be assessed
7for a material breach if it is out of the reasonable control
of the
8holder. Further, no monetary penalties may be imposed prior to
9January 1, 2007. Any schedule of monetary penalties adopted
10pursuant to this section shall in no event exceed five hundred
11dollars ($500) for each day of each material breach, not to exceed
12one thousand five hundred dollars ($1,500) for each occurrence
13of a material breach. However, if a material breach of this section
14has occurred, and the local entity has provided notice and a fine
15or penalty has been assessed, and if a subsequent material breach
16of the same nature occurs within 12 months, the penalties may be
17increased by the local entity to a maximum of one thousand dollars
18($1,000) for each day of each material breach, not to exceed three
19thousand dollars ($3,000) for each occurrence of the material
20breach. If a third or further material breach of the same nature
21occurs within those same 12 months, and the local entity has
22provided
notice and a fine or penalty has been assessed, the
23penalties may be increased to a maximum of two thousand five
24hundred dollars ($2,500) for each day of each material breach, not
25to exceed seven thousand five hundred dollars ($7,500) for each
26occurrence of the material breach. With respect to video providers
27subject to a franchise or license, any monetary penalties assessed
28under this section shall be reduced dollar-for-dollar to the extent
29any liquidated damage or penalty provision of a current cable
30television ordinance, franchise contract, or license agreement
31imposes a monetary obligation upon a video provider for the same
32customer service failures, and no other monetary damages may be
33assessed.
34(e) The local entity shall give the video service provider written
35notice of any alleged material breach of the customer service
36standards
of this division and allow the video provider at least 30
37days from receipt of the notice to remedy the specified material
38breach.
39(f) A material breach for the purposes of assessing penalties
40shall be deemed to have occurred for each day within the
P22 1jurisdiction of each local entity, following the expiration of the
2period specified in subdivision (e), that any material breach has
3not been remedied by the video service provider, irrespective of
4the number of customers or subscribers affected.
5(g) Any penalty assessed pursuant to this section shall be
6remitted to the local entity, which shall submit one-half of the
7penalty to the Digital Divide Account established in Section 280.5.
8(h) Any interested person may seek judicial
review of a decision
9of the local entity in a court of appropriate jurisdiction. For this
10purpose, a court of law shall conduct a de novo review of any
11issues presented.
12(i) This section shall not preclude a party affected by this section
13from utilizing any judicial remedy available to that party without
14regard to this section. Actions taken by a local legislative body,
15including a local franchising entity, pursuant to this section shall
16not be binding upon a court of law. For this purpose, a court of
17law shall conduct de novo review of any issues presented.
18(j) For purposes of this section, “material breach” means any
19substantial and repeated failure of a video service provider to
20comply with service quality and other standards specified in
21subdivision (a).
22(k) The Office of Ratepayer Advocates shall have authority to
23advocate on behalf of video subscribers regarding renewal of a
24state-issued franchise and enforcement of this section, and Sections
255890 and 5950. For this purpose, the office shall have access to
26any information in the possession of the commission subject to all
27restrictions on disclosure of that information that are applicable
28to the commission.
Section 7661 of the Public Utilities Code is amended
30to read:
(a) The commission shall require every railroad
32corporation operating in this state to develop, within 90 days of
33the effective date of the act adding this section, in consultation
34with, and with the approval of, the Office of Emergency Services,
35a protocol for rapid communications with the agency, the
36Department of the California Highway Patrol, and designated
37county public safety agencies in an endangered area if there is a
38runaway train or any other uncontrolled train movement that
39threatens public health and safety.
P23 1(b) A railroad
corporation shall promptly notify the Office of
2Emergency Services, the Department of the California Highway
3Patrol, and designated county public safety agencies, through a
4communication to the Warning Center of the Office of Emergency
5Services, if there is a runaway train or any other uncontrolled train
6movement that threatens public health and safety, in accordance
7with the railroad corporation’s communications protocol developed
8pursuant to subdivision (a).
9(c) The notification required
pursuant to subdivision (b) shall
10include the following information, whether or not an accident or
11spill occurs:
12(1) The information required by subdivision (c) of Section 7673.
13(2) In the event of a runaway train, a train list.
14(3) In the event of an uncontrolled train movement or
15uncontrolled movement of railcars, a track list or other inventory
16document if available.
17(d) The
safety and enforcement division shall investigate any
18incident that results in a notification required pursuant to
19subdivision (b), and shall report its findings concerning the cause
20or causes to the commission. The commission shall include the
21division’s report in its report to the Legislature pursuant to Section
227711.
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