Amended in Assembly September 6, 2013

Amended in Assembly September 3, 2013

Amended in Assembly August 6, 2013

Amended in Assembly June 14, 2013

Amended in Senate May 28, 2013

Amended in Senate May 8, 2013

Amended in Senate April 15, 2013

Senate Bill No. 611

Introduced by Senator Hill

February 22, 2013

An act to amend Sections 309.5, 1731, 1756, begin delete 1759, end delete 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: Division of Ratepayer Advocates: judicial review of commission decisions.

The California Constitution establishes the Public Utilities Commission, with jurisdiction over all public utilities, as defined. 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 division to annually submit specified information to the Legislature, as prescribed. Existing law requires the Director of the Division of Ratepayer Advocates to submit an annual budget to the commission for final approval. Existing law authorizes the director of the division to appoint a lead attorney to represent the division and requires all attorneys assigned by the Public Utilities Commission to perform services for the division to report to and be directed by the lead attorney for the division.

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 the office to include information about petitions for writs of review filed by the office under this authority in the annual report to the Legislature. The bill 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 require the lead attorney to obtain adequate legal personnel for the work to be conducted by the office from the Public Utilities Commission’s attorney and requires the Public Utilities Commission’s attorney to timely and appropriately fulfill all requests for legal personnel made by the lead attorney for the office, provided the office has sufficient moneys and positions in its budget for the services requested. The bill would make other conforming changes.

begin delete

Existing law generally authorizes an aggrieved party to petition the Supreme Court or a court of appeal for a writ of review of an order or decision of the Public Utilities Commission within 30 days after the commission issues its decision denying an application for a rehearing, or, if the commission grants the application, within 30 days after the commission issues its decision on rehearing. Existing law provides that no court of the state, except the Supreme Court and the court of appeal, has jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties. Existing law provides that a writ of mandamus lies from the Supreme Court and from the court of appeal to the commission in all proper cases, as prescribed by a specified section in the Code of Civil Procedure.

end delete begin delete

This bill would instead provide that a writ of mandamus lies from the Supreme Court and from the court of appeal to the commission in all proper cases.

end delete

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 309.5 of the Public Utilities Code is
amended to read:

309.5.  

(a) There is within the commission an independent
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 office.

(c) The director shall develop a budget for the office that 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.
The lead attorney for the office shall obtain adequate legal
personnel for the work to be conducted by the office from the
commission’s attorney appointed pursuant to Section 307. The
commission’s attorney shall timely and appropriately fulfill all
requests for legal personnel made by the lead attorney for the
office, provided the office has sufficient moneys and positions in
its budget for the services requested.

(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 president of the commission, if
there is no assigned commissioner.

(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 a budgetary program fund administered and
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. 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. 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) With regard to petitions for a writ of review filed pursuant
to subdivision (a) by the Office of Ratepayer Advocates, the office
shall include in its annual written report to the chairperson of the
fiscal committee of each house of the Legislature and to the Joint
Legislative Budget Committee, required by subdivision (g) of
Section 309.5, all of the following information:

(1) The number of petitions for writs of review the office filed.

(2) The office’s rationale for seeking each writ of review.

(3) The amount of ratepayer dollars the office expended on
petitions.

(d) 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.

(e) 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.

(f) Any party may seek from the Supreme Court, pursuant to
California Rules of Court, an order transferring related actions to
a single appellate district.

(g) 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.

(h) 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.

begin delete

SEC. 4.  

Section 1759 of the Public Utilities Code is amended
to read:

1759.  

(a) No court of this state, except the Supreme Court and
the court of appeal, to the extent specified in this article, shall have
jurisdiction to review, reverse, correct, or annul any order or
decision of the commission or to suspend or delay the execution
or operation thereof, or to enjoin, restrain, or interfere with the
commission in the performance of its official duties, as provided
by law and the rules of court.

(b) The writ of mandamus shall lie from the Supreme Court and
from the court of appeal to the commission in all proper cases.

end delete

begin delete SEC. 5. end delete
begin insert SEC. 4. end insert   

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.