BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 415
                                                                  Page  1

          Date of Hearing:   April 8, 2013

                    ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
                               Steven Bradford, Chair
                     AB 415 (Garcia) - As Amended:  April 3, 2013
           
          SUBJECT  :   Public Utilities Act violation: defense

           SUMMARY  :   This bill specifies that evidence of a reasonable  
          good faith reliance upon advice staff of the California Public  
          Utilities Commission (PUC) is to be considered only for the  
          purposes of determining the appropriate penalty to impose in an  
          enforcement action by the commission PUC.  Specifically,  this  
          bill  :  


          a)In an enforcement action, pursuant to an act or an order,  
            decision, rule, direction, demand, or requirement of the PUC,  
            evidence of a reasonable good faith reliance upon advice  
            directly provided by the PUC staff is to be considered by the  
            PUC only for the purposes of determining the appropriate  
            penalty to impose. 


          b) Defines 'reasonable good faith reliance" as a reasonable  
            belief that an entity is acting on the direction and advice of  
            the PUC staff consistent with direction and advice provided.

           EXISTING LAW  

          1)Establishes that the PUC may appoint an attorney to represent  
            and appear for the PUC in all actions and proceedings  
            involving any question of the Public Utilities Code, order, or  
            act of the PUC and to commence, prosecute, and expedite final  
            determination of actions and proceedings except as directed by  
            a vote of the commission. (Public Utilities Code 307) 

          2)Establishes that whenever it is the opinion of the PUC that a  
            public utility is failing or omitting or about to fail or omit  
            to do anything required by law, order, decision, rule,  
            direction, or requirement of the PUC, it shall direct its  
            attorney to file an action or proceeding for appropriate  
            relief or injunction and seek appropriate penalties (Public  
            Utilities Code 2102, 2104)









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          3)Establishes fines for failure to comply with violations of any  
            order, decision, rule, regulation, direction, demand, or  
            requirement (Public Utilities Code 2106 et seq.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement.  "The PUC handles many complex and ever  
            evolving issues.  The PUC staff professionals are relied upon  
            by the Commissioners as well as the business entities,  
            utilities and even consumer groups attempting to do business  
            in the state under the purview of the PUC.  Whether  
            interpreting a new order from the Commissioners, issues with a  
            rate case or how to comply with a telecoms fee formula,  
            entities dealing with the PUC need direction.  In fact, staff  
            routinely provides direction on how to calculate fee formulas  
            or how to implement a PUC mandated program.  Under current  
            law, the PUC is all of the following on enforcement matters -  
            investigator, prosecutor, judge, jury, executioner.  With this  
            much inherent authority, when entities rely upon staff  
            direction, they should not be subject to prosecution when  
            staff or commission interpretation changes.  Commissioners  
            serve terms and are often replaced.  Staff moves on.  Entities  
            need to know that if they can rely upon direction of PUC staff  
            on these complex matters."

          2)Telephone Service Surcharges  . All telecommunications carriers  
            (carriers) or Voice Over Internet Protocol (VOIP) providers  
            offering telephone service to the public in California,  
            authorized by the PUC to operate in California, are required  
            to assess surcharges on their end-user Intrastate service  
            revenues and to remit the monies to the PUC. These surcharges  
            are collectively known as Universal Service Surcharges and are  
            used to fund:

               a)     California High Cost Fund A (CHCF-A) 
               b)     California High Cost Fund B (CHCF-B) 
               c)     California Lifeline (LifeLine)- (Formerly known as  
                 Universal Lifeline Telephone Service or ULTS)
               d)     California Teleconnect Fund (CTF) 
               e)     Deaf & Disabled Telecommunication Program (DDTP)
               f)     California Advance Service Funds (CASF)

            Carriers must assess the surcharges on all of their revenues  








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            for intrastate telecommunications services except for the  
            following: 

               a)     California LifeLine service revenue; 
               b)     Charges to other certificated carriers for services  
                 that are to be resold; 
               c)     Coin sent paid telephone calls (coin in box) and  
                 debit card calls; 
               d)     Customer-specific contracts effective before  
                 9/15/94; 
               e)     Usage charges for coin-operated pay telephones; 
               f)     Directory advertising; and 
               g)     One-way radio paging

            Carriers must assess and remit surcharges using a reasonable  
            method to determine intrastate revenues. The PUC suggests two  
            methods for carriers (FCC Safe Harbor or Traffic Study) but  
            does not limit carriers to these two methods.

           1)Ongoing Tracfone Investigation.  The bill could impact the  
            penalty phase of an ongoing enforcement proceeding  
            (I.09-12-016) where a company, Tracfone, had not been  
            remitting Universal Surcharge Funds in accordance with statute  
            and PUC decisions. Tracfone asserts that the PUC did not have  
            a method to calculate Universal Surcharge Funds from carriers  
            who utilize debit cards. According to Tracfone, they received  
            advice in 2003 from PUC staff that Tracfone should indicate  
            'zero' intrastate billing reports filed with the PUC. Entering  
            zero has the effect of not collecting or remitting any  
            Universal Surcharge Funds. 

            On March 13, 2013, the California Courts of Appeal denied  
            Tracfone's petition for writ of review. TracFone petitioned  
            the court for a writ of review of two Phase 1 decisions in  
            Investigation (I.) 09-12-016: D.12-02-032 which found that  
            TracFone is a telephone corporation operating as a public  
            utility providing prepaid wireless telephony services in  
            California, and also for review of D.12-10-018 which denied  
            TracFone's application for rehearing of D.12-02-032 and also  
            denied its motion to stay that decision.  D.12-02-032  
            determined that TracFone violated provisions of the Public  
            Utilities Code and Commission orders and decisions in failing  
            to pay the user fees and public purpose program surcharges  
            required by its operating license/registration.  TracFone was  
            ordered to immediately begin collecting and remitting the  








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            applicable surcharges and user fees; also, D.12-02-032 decided  
            that the amount of user fees and surcharges owed, if any, and  
            whether TracFone shall be subject to any penalties, would be  
            determined in Phase 2 of I.09-12-016. 

           2)It's a matter of opinion  . The PUC has five Commissioners  
            appointed by the Governor. Those Commissioners meet regularly  
            to vote on policy, procedural, and legal matters. The PUC has  
            roughly 1,000 full-time personnel who routinely speak to the  
            entities regulate by the PUC, the customers of the regulated  
            entities, and the general public. The PUC has well-established  
            and publicly available Rules of Practice which guide any  
            interested party in how to effectively participate at the PUC.  
            At any time an individual or company can petition the PUC. A  
            decision on the petition would ultimately be voted on by the  
            Commissioners and would represent the opinion of the PUC.  
            Opinions offered by PUC staff, and even among Commissioners,  
            can vary until the Commissioners have voted on a matter.
             
             AB 415 could have the effect of giving staff statements the  
            equivalence of a PUC decision.

           3)Chilling effect  . AB 415 could discourage informal  
            communications between PUC staff and the utilities and the  
            public. PUC staff may become less willing to provide informal  
            advice to utilities and the public, and would require the use  
            of more formal processes. Importantly, AB 415 applies to all  
            entities regulated by the PUC, including public electric and  
            gas utilities, electricity service providers, public water  
            utilities, transportation companies, and certain  
            telecommunication service providers.

           4)Technical amendment.  AB 415 includes a definition of  
            "reasonable good faith" The construction of the definition  
            does not specifically reference that an entity should rely on  
            advice from a person authorized by the PUC to give advice or  
            whether that advice should be consistent with commission  
            rules, orders, regulations, and decisions. The technical  
            amendment addresses this.

            (b) For the purpose of this section, "reasonable good faith  
            reliance" means a reasonable belief that the action of an  
            entity, acting on the direction and advice of the staff of the  
             commission authorized to give direction and advice and  
            consistent with rules, orders, regulations, and decisions  of  








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            the commission, is legal and consistent with the direction and  
            advice provided. 


           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Tracfone (Sponsor)

           Opposition 
           
          California Public Utilities Commission (CPUC)
          Consumer Attorneys of California (unless amended)
          Consumer Federation of California
          Division of Ratepayer Advocates (DRA)
          Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
          The Teamsters
          The Utility Reform Network (TURN)
          Utility Workers Union of America, Local 132, AFL-CIO
           
          Analysis Prepared by  :    Susan Kateley / U. & C. / (916)  
          319-2083