BILL NUMBER: SB 611 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 8, 2013
AMENDED IN SENATE APRIL 15, 2013
INTRODUCED BY Senator Hill
FEBRUARY 22, 2013
An act to amend Sections 305, 307, 308, 309.5,
309.7, 321.6, 958.5, 1701.1, 1701.2, 1701.3, 1731,
1756, 5900, and 7661of, and to add Section 854.5 to,
and 5900 of the Public Utilities Code, relating
to the Public Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
SB 611, as amended, Hill. Public Utilities Commission:
organization: proceedings. Division of Ratepayer
Advocates.
(1) The
The California Constitution establishes the Public
Utilities Commission, with jurisdiction over all public utilities, as
defined. 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. 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.
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.
The bill would repeal the requirement that the president
direct the executive director, attorney, and other staff of the
commission. The This bill 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. The bill would
change current statutory references from the division of consumer
protection and safety to the division of safety and enforcement.
(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.
This 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.
(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.
This 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.
(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.
This bill would correct certain statutory references from the
commission adopting regulations to the commission adopting rules.
(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.
This 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.
The 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.
This 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.
(6) Existing law establishes certain procedures that are
applicable to adjudication, rulemaking and ratesetting cases.
This 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.
(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.
This bill would additionally require the commission to include
data on the disposition of applications for rehearing in that report.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 305 of the Public Utilities
Code is amended to read:
305. The Governor shall designate a president of the commission
from among the members of the commission. The president shall preside
at all meetings and sessions of the commission.
SEC. 2. Section 307 of the Public Utilities
Code is amended to read:
307. (a) The commission may appoint as attorney to the commission
an attorney at law of this state, who shall hold office during the
pleasure of the commission. In carrying out his or her functions and
duties, the attorney shall be subject to the State Bar Act and the
Rules of Professional Conduct of the State Bar of California.
(b) The attorney shall represent and appear for the people of the
State of California and the commission in all actions and proceedings
involving any question under this part or under any order or act of
the commission. If directed to do so by the commission, the attorney
shall intervene, if possible, in any action or proceeding in which
any such question is involved.
(c) Except as provided in Section 1701.2, the attorney shall
commence, prosecute, and expedite the final determination of all
actions and proceedings directed or authorized by the commission,
advise the commission and each commissioner, when so requested, in
regard to all matters in connection with the powers and duties of the
commission and the members thereof, and generally perform all duties
and services as attorney to the commission that the commission may
require of him or her.
SEC. 3. Section 308 of the Public Utilities
Code is amended to read:
308. (a) The commission shall appoint an executive director, who
shall hold office during its pleasure. The executive director shall
be responsible for the commission's executive and administrative
duties and shall organize, coordinate, supervise, and direct the
operations and affairs of the commission and expedite all matters
within the commission's jurisdiction.
(b) The executive director shall 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
commission, prescribes. 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.
(c) The commission may appoint assistant executive directors who
may serve warrants and other process in any county or city and county
of this state.
SEC. 4. SECTION 1. Section 309.5 of
the Public Utilities Code is amended to read:
309.5. (a) There is within the commission an
Office of Ratepayer Advocates to represent and advocate on behalf of
the interests of public utility customers and subscribers within the
jurisdiction of the commission. The goal of the office shall be to
obtain the lowest possible rate for service consistent with reliable
and safe service levels. For revenue allocation and rate design
matters, the office shall primarily consider the interests of
residential and small commercial customers. The office may seek
rehearing and judicial review of commission decisions pursuant to
Article 2 (commencing with Section 1731) and Article 3 (commencing
with Section 1756) of Chapter 9.
(b) The director of the office shall be appointed by, and serve at
the pleasure of, the Governor, subject to confirmation by the
Senate.
The director shall annually appear before the appropriate policy
committees of the Assembly and the Senate to report on the activities
of the division.
(c) The director shall develop a budget for the office which shall
be subject to final approval of the Department of Finance. As
authorized in the approved budget, the office shall employ personnel
and resources, including attorneys and other legal support staff at a
level sufficient to ensure that customer and subscriber interests
are effectively represented in all significant proceedings. The
office may employ experts necessary to carry out its functions. The
director may appoint a lead attorney who shall represent the office,
and shall report to and serve at the pleasure of the director. All
attorneys performing services for the office shall report to and be
directed by the lead attorney appointed by the director.
(d) The commission shall develop appropriate procedures to ensure
that the existence of the office does not create a conflict of roles
for any employee. The procedures shall include, but shall not be
limited to, the development of a code of conduct and procedures for
ensuring that advocates and their representatives on a particular
case or proceeding are not advising decisionmakers on the same case
or proceeding.
(e) The office may compel the production or disclosure of any
information it deems necessary to perform its duties from any entity
regulated by the commission, provided that any objections to any
request for information shall be decided in writing by the assigned
commissioner or by the commission, if there is no assigned
commissioner. The office shall have access, upon request, to all
information provided to the commission, a commissioner, or an officer
or person employed by the commission pursuant to Section 314.
(f) There is hereby created the Public Utilities Commission
Ratepayer Advocate Account in the General Fund. Moneys from the
Public Utilities Commission Utilities Reimbursement Account in the
General Fund shall be transferred in the annual Budget Act to the
Public Utilities Commission Ratepayer Advocate Account. The funds in
the Public Utilities Commission Ratepayer Advocate Account shall be
utilized exclusively by the office in the performance of its duties
as determined by the director. The director shall annually submit a
staffing report containing a comparison of the staffing levels for
each five-year period.
(g) On or before January 10 of each year, the office shall provide
to the chairperson of the fiscal committee of each house of the
Legislature and to the Joint Legislative Budget Committee all of the
following information:
(1) The number of personnel years utilized during the prior year
by the Office of Ratepayer Advocates.
(2) The total dollars expended by the Office of Ratepayer
Advocates in the prior year, the estimated total dollars expended in
the current year, and the total dollars proposed for appropriation in
the following budget year.
(3) Workload standards and measures for the Office of Ratepayer
Advocates.
(h) The office shall meet and confer in an informal setting with a
regulated entity prior to issuing a report or pleading to the
commission regarding alleged misconduct, or a violation of a law or a
commission rule or order, raised by the office in a complaint. The
meet and confer process shall be utilized in good faith to reach
agreement on issues raised by the office regarding any regulated
entity in the complaint proceeding.
SEC. 5. Section 309.7 of the Public Utilities
Code is amended to read:
309.7. (a) The division of the commission responsible for safety
and enforcement shall be responsible for inspection, surveillance,
and investigation of the rights-of-way, facilities, equipment, and
operations of railroads and public mass transit guideways, and for
enforcing state and federal laws, regulations, orders, and directives
relating to transportation of persons or commodities, or both, of
any nature or description by rail. The safety and enforcement
division shall advise the commission on all matters relating to rail
safety, and shall propose to the commission rules, orders, and other
measures necessary to reduce the dangers caused by unsafe conditions
on the railroads of the state. The delegation of enforcement
responsibility to the safety and enforcement division shall not
diminish the power of other agencies of state government to enforce
laws relating to employee or environmental safety, pollution
prevention, or public health and safety.
(b) In performing its duties, the safety and enforcement division
shall exercise all powers of investigation granted to the commission,
including rights to enter upon land or facilities, inspect books and
records, and compel testimony. The commission shall employ
sufficient federally certified inspectors to ensure at the time of
inspection that railroad locomotives and equipment and facilities
located in class I railroad yards in California are inspected not
less frequently than every 180 days, and all main and branch line
tracks are inspected not less frequently than every 12 months. In
performing its duties, the safety and enforcement division shall
consult with representatives of railroad corporations, labor
organizations representing railroad employees, and the Federal
Railroad Administration.
(c) The general counsel shall assign to the safety and enforcement
division the personnel and attorneys necessary to fully utilize the
powers granted to the commission by any state law, and by any federal
law relating to rail transportation, including, but not limited to,
the Federal Rail Safety Act (45 U.S.C. Sec. 421m, et seq.), to
enforce safety laws, rules, regulations, and orders, and to collect
fines and penalties resulting from the violation of any safety rule
or regulation.
(d) The activities of the safety and enforcement division that
relate to safe operation of common carriers by rail, other than those
relating to grade crossing protection, shall also be supported by
the fees paid by railroad corporations, if any, pursuant to Sections
421 to 424, inclusive. The activities of the safety and enforcement
division that relate to grade crossing protection shall be supported
by funds appropriated therefor from the State Highway Account in the
State Transportation Fund. On or before November 30 of each year, the
commission shall report to the Legislature on the activities of the
safety and enforcement division, and shall fully document in the
report all expenditures of those funds in the audit report provided
in subdivision (f) of Section 421.
SEC. 6. Section 321.6 of the Public Utilities
Code is amended to read:
321.6. (a) The commission shall do all of the following:
(1) Develop, publish, and annually update an annual workplan that
describes in clear detail the scheduled ratemaking proceedings and
other decisions that may be considered by the commission during the
calendar year. The plan shall include, but is not limited to,
information on how members of the public and ratepayers can gain
access to the commission's ratemaking process and information
regarding the specific matters to be decided. The plan shall also
include information on the operation of the office of the public
adviser and identify the names and telephone numbers of those contact
persons responsible for specific cases and matters to be decided.
The plan shall also include a statement that specifies activities
that the commission proposes to reduce the costs of, and rates for,
energy, including electricity, and for improving the competitive
opportunities for state agriculture and other rural energy consumers.
The commission shall post the plan under the Official Documents area
of its Internet Web site and shall develop a program to disseminate
the information in the plan utilizing computer mailing lists to
provide regular updates on the information to those members of the
public and organizations which request that information.
(2) Produce a complete accounting of its transactions and
proceedings for the preceding year, together with other facts,
suggestions, and recommendations that it deems of value to the people
of the state and a statement that specifies the activities and
achievements of the commission in reducing the costs of, and rates
for, energy, including electricity, for state agriculture and other
rural energy consumers.
(3) Create a report on the number of cases where resolution
exceeded the time periods prescribed in scoping memos, information on
the disposition of applications for rehearings, and the days that
commissioners presided in hearings.
(4) Submit annually the plan, accounting, and report required by
paragraphs (1), (2), and (3) to the Governor and Legislature no later
than February 1 of each year.
(b) The president of the commission shall annually appear before
the appropriate policy committees of the Senate and Assembly to
report on the annual workplan access guide of the commission required
pursuant to this section.
(c) The president of the commission shall annually appear before
the appropriate policy committees of the Senate and Assembly to
report on the annual report of the commission on the number of cases
where resolution exceeded the time periods prescribed in scoping
memos and the days that commissioners presided in hearings, pursuant
to Section 13 of Chapter 856 of the Statutes of 1996.
SEC. 7. Section 854.5 is added to the Public
Utilities Code, to read:
854.5. (a) For purposes of this section, a "nonstate entity"
means a company, corporation, partnership, firm, or other entity or
group of entities, whether organized for profit or not for profit.
(b) The commission, by order, decision, motion, settlement, or
other action shall not establish a nonstate entity. This subdivision
does not limit the authority of the commission to form an advisory
committee or other body whose budget is subject to oversight by the
commission and the Department of Finance.
(c) The commission shall not enter into a contract with a nonstate
entity in which a person serves as an owner, director, or officer
while serving as a commissioner. Any contract between the commission
and a nonstate entity shall be void and cease to exist by operation
of law, if a commissioner, who was a commissioner at the time the
contract was awarded, entered into, or extended, becomes, on or after
January 1, 2014, an owner, director, or officer of the nonstate
entity while serving as a commissioner.
(d) 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 pursuant to Section 1 of Article XII of the
California Constitution, for which the commissioner may be removed
pursuant to that section.
SEC. 8. Section 958.5 of the Public Utilities
Code is amended to read:
958.5. (a) Twice a year, or as determined by the commission, each
gas corporation shall file with the commission's safety and
enforcement division a gas transmission and storage safety report.
The safety and enforcement division shall review the reports to
monitor each gas corporation's storage and pipeline-related
activities to assess whether the projects that have been identified
as high risk are being carried out, and to track whether the gas
corporation is spending its allocated funds on these storage and
pipeline-related safety, reliability, and integrity activities for
which they have received approval from the commission.
(b) The gas transmission and storage safety report shall include a
thorough description and explanation of the strategic planning and
decisionmaking approach used to determine and rank the gas storage
projects, intrastate transmission line safety, integrity, and
reliability, operation and maintenance activities, and inspections of
its intrastate transmission lines. If there has been no change in
the gas corporation's approach for determining and ranking which
projects and activities are prioritized since the previous gas
transmission and storage safety report, the subsequent report may
reference the immediately preceding report.
(c) If the commission's safety and enforcement division determines
that there is a deficiency in a gas corporation's prioritization or
administration of the storage or pipeline capital projects or
operation and maintenance activities, the division shall bring the
problems to the commission's immediate attention.
SEC. 9. Section 1701.1 of the Public Utilities
Code is amended to read:
1701.1. (a) The commission, consistent with due process, public
policy, and statutory requirements, shall determine whether a
proceeding requires a hearing. The commission shall determine whether
the matter requires a quasi-legislative, an adjudication, or a
ratesetting hearing. The commission's decision as to the nature of
the proceeding shall be subject to a request for rehearing within 10
days of the date of that decision. If that decision is not appealed
to the commission within that time period it shall not be
subsequently subject to judicial review. Only those parties who have
requested a rehearing within that time period shall subsequently have
standing for judicial review and that review shall only be available
at the conclusion of the proceeding. The commission shall render its
decision regarding the rehearing within 30 days. The commission
shall establish rules regarding ex parte communication on case
categorization issues.
(b) The commission upon initiating a hearing shall assign one or
more commissioners to oversee the case and an administrative law
judge where appropriate. The assigned commissioner shall schedule a
prehearing conference. The assigned commissioner shall prepare and
issue by order or ruling a scoping memo that describes the issues to
be considered and the applicable timetable for resolution.
(c) (1) Quasi-legislative cases, for purposes of this article, are
cases that establish policy, including, but not limited to,
rulemakings and investigations which may establish rules affecting an
entire industry.
(2) Adjudication cases, for purposes of this article, are
enforcement cases and complaints except those challenging the
reasonableness of any rates or charges as specified in Section 1702.
(3) Ratesetting cases, for purposes of this article, are cases in
which rates are established for a specific company, including, but
not limited to, general rate cases, performance-based ratemaking, and
other ratesetting mechanisms.
(4) "Ex parte communication," for purposes of this article, means
any oral or written communication between a decisionmaker and a
person with an interest in a matter before the commission concerning
substantive, but not procedural issues, that does not occur in a
public hearing, workshop, or other public proceeding, or on the
official record of the proceeding on the matter. "Person with an
interest," for purposes of this article, means any of the following:
(A) Any applicant, an agent or an employee of the applicant, or a
person receiving consideration for representing the applicant, or a
participant in the proceeding on any matter before the commission.
(B) Any person with a financial interest, as described in Article
1 (commencing with Section 87100) of Chapter 7 of Title 9 of the
Government Code, in a matter before the commission, or an agent or
employee of the person with a financial interest, or a person
receiving consideration for representing the person with a financial
interest.
(C) A representative acting on behalf of any civic, environmental,
neighborhood, business, labor, trade, or similar organization who
intends to influence the decision of a commission member on a matter
before the commission.
The commission shall by rule adopt and publish a definition of
decisionmakers and persons for purposes of this section, along with
any requirements for written reporting of ex parte communications and
appropriate sanctions for noncompliance with any rule proscribing ex
parte communications. The rule shall provide that reportable
communications shall be reported by the party, whether the
communication was initiated by the party or the decisionmaker.
Communications shall be reported within three working days of the
communication by filing a "Notice of Ex Parte Communication" with the
commission in accordance with the procedures established by the
commission for the service of that notice. The notice shall include
the following information:
(i) The date, time, and location of the communication, and whether
it was oral, written, or a combination.
(ii) The identity of the recipient and the person initiating the
communication, as well as the identity of any persons present during
the communication.
(iii) A description of the party's, but not the decisionmaker's,
communication and its content, to which shall be attached a copy of
any written material or text used during the communication.
SEC. 10. Section 1701.2 of the Public Utilities
Code is amended to read:
1701.2. (a) If the commission pursuant to Section 1701.1 has
determined that an adjudication case requires a hearing, the
procedures prescribed by this section shall be applicable. The
assigned commissioner or the assigned administrative law judge shall
hear the case in the manner described in the scoping memo. The
scoping memo shall designate whether the assigned commissioner or the
assigned administrative law judge shall preside in the case. The
commission shall provide by rule for peremptory challenges and
challenges for cause of the administrative law judge. Challenges for
cause shall include, but not be limited to, financial interests and
prejudice. The rule shall provide that all parties are entitled to
one peremptory challenge of the assignment of the administrative law
judge in all cases. All parties are entitled to unlimited peremptory
challenges in any case in which the administrative law judge has
within the previous 12 months served in any capacity in an advocacy
position at the commission, been employed by a regulated public
utility, or has represented a party or has been a party of interest
in the case. The assigned commissioner or the administrative law
judge shall prepare and file a decision setting forth
recommendations, findings, and conclusions. The decision shall be
filed with the commission and served upon all parties to the action
or proceeding without undue delay, not later than 60 days after the
matter has been submitted for decision. The decision of the assigned
commissioner or the administrative law judge shall become the
decision of the commission if no further action is taken within 30
days. Any interested party may appeal the decision to the commission,
provided that the appeal is made within 30 days of the issuance of
the decision. The commission may itself initiate a review of the
proposed decision on any grounds. The commission decision shall be
based on the record developed by the assigned commissioner or the
administrative law judge. A decision different from that of the
assigned commissioner or the administrative law judge shall be
accompanied by a written explanation of each of the changes made to
the decision.
(b) No officer, employee, or agent of the commission that is
assigned to assist in the prosecution of, to testify in, or to
supervise the prosecution of an adjudication case before the
commission, shall participate in the decision of the case, or in the
decision of any factually related proceeding, including participation
in or advising the commission as to findings of fact, conclusions of
law, or orders. An officer, employee, or agent of the commission
that is assigned to assist in the prosecution of an adjudication case
may participate in reaching a settlement of the case, but shall not
participate in the decision of the commission to accept or reject the
settlement, except as a witness or counsel in an open hearing or a
hearing closed pursuant to subdivision (d). The Legislature finds
that the commission performs both prosecutorial and adjudicatory
functions in an adjudication case and declares its intent that an
officer, employee, or agent of the
commission, including its attorneys, may perform only one of
those functions in any adjudication case, or factually related
proceeding.
(c) Ex parte communications shall be prohibited in adjudication
cases.
(d) Notwithstanding any other provision of law, the commission may
meet in a closed hearing to consider the decision that is being
appealed. The vote on the appeal shall be in a public meeting and
shall be accompanied with an explanation of the appeal decision.
(e) Adjudication cases shall be resolved within 12 months of
initiation unless the commission makes findings why that deadline
cannot be met and issues an order extending that deadline. In the
event that a rehearing of an adjudication case is granted the parties
shall have an opportunity for final oral argument.
(f) (1) The commission may determine that the respondent lacks, or
may lack, the ability to pay potential penalties or fines or to pay
restitution that may be ordered by the commission.
(2) If the commission determines that a respondent lacks, or may
lack, the ability to pay, the commission may order the respondent to
demonstrate, to the satisfaction of the commission, sufficient
ability to pay potential penalties, fines, or restitution that may be
ordered by the commission. The respondent shall demonstrate the
ability to pay, or make other financial arrangements satisfactory to
the commission, within seven days of the commission commencing an
adjudication case. The commission may delegate to the attorney to the
commission the determination of whether a sufficient showing has
been made by the respondent of an ability to pay.
(3) Within seven days of the commission's determination of the
respondent's ability to pay potential penalties, fines, or
restitution, the respondent shall be entitled to an impartial review
by an administrative law judge, of the sufficiency of the showing
made by the respondent of the respondent's ability to pay. The review
by an administrative law judge of the ability of the respondent to
pay shall become part of the record of the adjudication and is
subject to the commission's consideration in its order resolving the
adjudication case. The administrative law judge may enter temporary
orders modifying any financial requirement made of the respondent
pending the review by the administrative law judge.
(4) A respondent that is a public utility regulated under a rate
of return or rate of margin regulatory structure or that has gross
annual revenues of more than one hundred million dollars
($100,000,000) generated within California is presumed to be able to
pay potential penalties or fines or to pay restitution that may be
ordered by the commission, and, therefore, paragraphs (1) to (3),
inclusive, do not apply to that respondent.
SEC. 11. Section 1701.3 of the Public Utilities
Code is amended to read:
1701.3. (a) If the commission pursuant to Section 1701.1 has
determined that a ratesetting case requires a hearing, the procedures
prescribed by this section shall be applicable. The assigned
commissioner shall determine prior to the first hearing whether the
commissioner or the assigned administrative law judge shall be
designated as the principal hearing officer. The principal hearing
officer shall be present for more than one-half of the hearing days.
The decision of the principal hearing officer shall be the proposed
decision. An alternate decision may be issued by the assigned
commissioner or the assigned administrative law judge who is not the
principal hearing officer. The commission shall establish a procedure
for any party to request the presence of a commissioner at a
hearing. The assigned commissioner shall be present at the closing
arguments of the case. The principal hearing officer shall present
the proposed decision to the full commission in a public meeting. The
alternate decision, if any, shall also be presented to the full
commission at that public meeting. The alternate decision shall be
filed with the commission and shall be served on all parties
simultaneously with the proposed decision.
The presentation to the full commission shall contain a record of
the number of days of the hearing, the number of days that each
commissioner was present, and whether the decision was completed on
time.
(b) The commission shall provide by rule for peremptory challenges
and challenges for cause of the administrative law judge. Challenges
for cause shall include, but not be limited to, financial interests
and prejudice. All parties shall be entitled to unlimited peremptory
challenges in any case in which the administrative law judge has,
within the previous 12 months, served in any capacity in an advocacy
position at the commission, been employed by a regulated public
utility, or has represented a party or has been a party of interest
in the case.
(c) Ex parte communications are prohibited in ratesetting cases.
However, oral ex parte communications may be permitted at any time by
any commissioner if all interested parties are invited and given not
less than three days' notice. Written ex parte communications may be
permitted by any party provided that copies of the communication are
transmitted to all parties on the same day. If an ex parte
communication meeting is granted to any party, all other parties
shall also be granted individual ex parte meetings of a substantially
equal period of time and shall be sent a notice of that
authorization at the time that the request is granted. In no event
shall that notice be less than three days. The commission may
establish a period during which no oral or written ex parte
communications shall be permitted and may meet in closed session
during that period, which shall not in any circumstance exceed 14
days. If the commission holds the decision, it may permit ex parte
communications during the first half of the interval between the hold
date and the date that the decision is calendared for final
decision. The commission may meet in closed session for the second
half of that interval.
(d) Any party has the right to present a final oral argument of
its case before the commission. Those requests shall be scheduled in
a timely manner. A quorum of the commission shall be present for the
final oral arguments.
(e) The commission may, in issuing its decision, adopt, modify, or
set aside the proposed decision or any part of the decision based on
evidence in the record. The final decision of the commission shall
be issued not later than 60 days after the issuance of the proposed
decision. Under extraordinary circumstances the commission may extend
this date for a reasonable period. The 60-day period shall be
extended for 30 days if any alternate decision is proposed pursuant
to Section 311.
SEC. 12. SEC. 2. Section 1731 of the
Public Utilities Code is amended to read:
1731. (a) The commission shall set an effective date when issuing
an order or decision. The commission may set the effective date of
an order or decision prior to the date of issuance of the order or
decision.
(b) (1) After any order or decision has been made by the
commission, any party to the action or proceeding, including the
Office of Ratepayer Advocates, or any stockholder or bondholder or
other party pecuniarily interested in the public utility affected,
may apply for a rehearing in respect to any matters determined in the
action or proceeding and specified in the application for rehearing.
The commission may grant and hold a rehearing on those matters, if
in its judgment sufficient reason is made to appear. No cause of
action arising out of any order or decision of the commission shall
accrue in any court to any corporation or person unless the
corporation or person has filed an application to the commission for
a rehearing within 30 days after the date of issuance or within 10
days after the date of issuance in the case of an order issued
pursuant to either Article 5 (commencing with Section 816) or Article
6 (commencing with Section 851) of Chapter 4 relating to security
transactions and the transfer or encumbrance of utility property.
(2) The commission shall notify the parties of the issuance of an
order or decision by either mail or electronic transmission.
Notification of the parties may be accomplished by one of the
following methods:
(A) Mailing the order or decision to the parties to the action or
proceeding.
(B) If a party to an action or proceeding consents in advance to
receive notice of any order or decision related to the action or
proceeding by electronic mail address, notification of the party may
be accomplished by transmitting an electronic copy of the official
version of the order or decision to the party if the party has
provided an electronic mail address to the commission.
(C) If a party to an action or proceeding consents in advance to
receive notice of any order or decision related to the action or
proceeding by electronic mail address, notification of the party may
be accomplished by transmitting a link to an Internet Web site where
the official version of the order or decision is readily available to
the party if the party has provided an electronic mail address to
the commission.
(3) For the purposes of this article, "date of issuance" means the
mailing or electronic transmission date that is stamped on the
official version of the order or decision
(c) No cause of action arising out of any order or decision of the
commission construing, applying, or implementing the provisions of
Chapter 4 of the Statutes of the 2001-02 First Extraordinary Session
that (1) relates to the determination or implementation of the
department's revenue requirements, or the establishment or
implementation of bond or power charges necessary to recover those
revenue requirements, or (2) in the sole determination of the
Department of Water Resources, the expedited review of order or
decision of the commission is necessary or desirable, for the
maintenance of any credit ratings on any bonds or notes of the
department issued pursuant to Division 27 (commencing with Section
80000) of the Water Code or for the department to meet its
obligations with respect to any bonds or notes pursuant to that
division, shall accrue in any court to any corporation or person
unless the corporation or person has filed an application with the
commission for a rehearing within 10 days after the date of issuance
of the order or decision. The Department of Water Resources shall
notify the commission of any determination pursuant to paragraph (2)
of this subdivision prior to the issuance by the commission of any
order or decision construing, applying, or implementing the
provisions of Chapter 4 of the Statutes of the 2001-02 First
Extraordinary Session. The commission shall issue its decision and
order on rehearing within 20 days after the filing of the
application.
SEC. 13. SEC. 3. Section 1756 of the
Public Utilities Code is amended to read:
1756. (a) Within 30 days after the commission issues its decision
denying the application for a rehearing, or, if the application was
granted, then within 30 days after the commission issues its decision
on rehearing, or at least 120 days after the application is granted
if no decision on rehearing has been issued, any aggrieved party,
including the Office of Ratepayer Advocates, may petition for a writ
of review in the court of appeal or the Supreme Court for the purpose
of having the lawfulness of the original order or decision or of the
order or decision on rehearing inquired into and determined. If the
writ issues, it shall be made returnable at a time and place
specified by court order and shall direct the commission to certify
its record in the case to the court within the time specified.
(b) The petition for review shall be served upon the executive
director and the general counsel of the commission either personally
or by service at the office of the commission.
(c) For purposes of this section, the issuance of a decision or
the granting of an application shall be construed to have occurred on
the date of issuance, as defined in paragraph (3) of subdivision (b)
of Section 1731.
(d) The venue of a petition filed in the court of appeal pursuant
to this section shall be in the judicial district in which the
petitioner resides. If the petitioner is a business, venue shall be
in the judicial district in which the petitioner has its principal
place of business in California.
(e) Any party may seek from the Supreme Court, pursuant to
California Rules of Court, an order transferring related actions to a
single appellate district.
(f) For purposes of this section, review of decisions pertaining
solely to water corporations shall only be by petition for writ of
review in the Supreme Court, except that review of complaint or
enforcement proceedings may be in the court of appeal or the Supreme
Court.
(g) No order or decision arising out of a commission proceeding
under Section 854 shall be reviewable in the court of appeal pursuant
to subdivision (a) if the application for commission authority to
complete the merger or acquisition was filed on or before December
31, 1998, by two telecommunications-related corporations including at
least one which provides local telecommunications service to over
one million California customers. These orders or decisions shall be
reviewed pursuant to the Public Utilities Code in existence on
December 31, 1998.
SEC. 14. SEC. 4. Section 5900 of the
Public Utilities Code is amended to read:
5900. (a) The holder of a state franchise shall comply with the
provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the
Government Code, and any other customer service standards pertaining
to the provision of video service established by federal law or
regulation or adopted by subsequent enactment of the Legislature. All
customer service and consumer protection standards under this
section shall be interpreted and applied to accommodate newer or
different technologies while meeting or exceeding the goals of the
standards.
(b) The holder of a state franchise shall comply with provisions
of Section 637.5 of the Penal Code and the privacy standards
contained in Section 551 et seq. of Title 47 of the United States
Code.
(c) The local entity shall enforce all of the customer service and
protection standards of this section with respect to complaints
received from residents within the local entity's jurisdiction, but
it may not adopt or seek to enforce any additional or different
customer service or other performance standards under Section 53055.3
or subdivision (q), (r), or (s) of Section 53088.2 of the Government
Code, or any other authority or provision of law.
(d) The local entity shall, by ordinance or resolution, provide a
schedule of penalties for any material breach by a holder of a state
franchise of this section. No monetary penalties shall be assessed
for a material breach if it is out of the reasonable control of the
holder. Further, no monetary penalties may be imposed prior to
January 1, 2007. Any schedule of monetary penalties adopted pursuant
to this section shall in no event exceed five hundred dollars ($500)
for each day of each material breach, not to exceed one thousand five
hundred dollars ($1,500) for each occurrence of a material breach.
However, if a material breach of this section has occurred, and the
local entity has provided notice and a fine or penalty has been
assessed, and if a subsequent material breach of the same nature
occurs within 12 months, the penalties may be increased by the local
entity to a maximum of one thousand dollars ($1,000) for each day of
each material breach, not to exceed three thousand dollars ($3,000)
for each occurrence of the material breach. If a third or further
material breach of the same nature occurs within those same 12
months, and the local entity has provided notice and a fine or
penalty has been assessed, the penalties may be increased to a
maximum of two thousand five hundred dollars ($2,500) for each day of
each material breach, not to exceed seven thousand five hundred
dollars ($7,500) for each occurrence of the material breach. With
respect to video providers subject to a franchise or license, any
monetary penalties assessed under this section shall be reduced
dollar-for-dollar to the extent any liquidated damage or penalty
provision of a current cable television ordinance, franchise
contract, or license agreement imposes a monetary obligation upon a
video provider for the same customer service failures, and no other
monetary damages may be assessed.
(e) The local entity shall give the video service provider written
notice of any alleged material breach of the customer service
standards of this division and allow the video provider at least 30
days from receipt of the notice to remedy the specified material
breach.
(f) A material breach for the purposes of assessing penalties
shall be deemed to have occurred for each day within the jurisdiction
of each local entity, following the expiration of the period
specified in subdivision (e), that any material breach has not been
remedied by the video service provider, irrespective of the number of
customers or subscribers affected.
(g) Any penalty assessed pursuant to this section shall be
remitted to the local entity, which shall submit one-half of the
penalty to the Digital Divide Account established in Section 280.5.
(h) Any interested person may seek judicial review of a decision
of the local entity in a court of appropriate jurisdiction. For this
purpose, a court of law shall conduct a de novo review of any issues
presented.
(i) This section shall not preclude a party affected by this
section from utilizing any judicial remedy available to that party
without regard to this section. Actions taken by a local legislative
body, including a local franchising entity, pursuant to this section
shall not be binding upon a court of law. For this purpose, a court
of law shall conduct de novo review of any issues presented.
(j) For purposes of this section, "material breach" means any
substantial and repeated failure of a video service provider to
comply with service quality and other standards specified in
subdivision (a).
(k) The Office of Ratepayer Advocates shall have authority to
advocate on behalf of video subscribers regarding renewal of a
state-issued franchise and enforcement of this section, and Sections
5890 and 5950. For this purpose, the office shall have access to any
information in the possession of the commission subject to all
restrictions on disclosure of that information that are applicable to
the commission.
SEC. 15. Section 7661 of the Public Utilities
Code is amended to read:
7661. (a) The commission shall require every railroad corporation
operating in this state to develop, within 90 days of the effective
date of the act adding this section, in consultation with, and with
the approval of, the Office of Emergency Services, a protocol for
rapid communications with the agency, the Department of the
California Highway Patrol, and designated county public safety
agencies in an endangered area if there is a runaway train or any
other uncontrolled train movement that threatens public health and
safety.
(b) A railroad corporation shall promptly notify the Office of
Emergency Services, the Department of the California Highway Patrol,
and designated county public safety agencies, through a communication
to the Warning Center of the Office of Emergency Services, if there
is a runaway train or any other uncontrolled train movement that
threatens public health and safety, in accordance with the railroad
corporation's communications protocol developed pursuant to
subdivision (a).
(c) The notification required pursuant to subdivision (b) shall
include the following information, whether or not an accident or
spill occurs:
(1) The information required by subdivision (c) of Section 7673.
(2) In the event of a runaway train, a train list.
(3) In the event of an uncontrolled train movement or uncontrolled
movement of railcars, a track list or other inventory document if
available.
(d) The safety and enforcement division shall investigate any
incident that results in a notification required pursuant to
subdivision (b), and shall report its findings concerning the cause
or causes to the commission. The commission shall include the
division's report in its report to the Legislature pursuant to
Section 7711.