New Cingular Wireless PCS, LLC (“New Cingular Wireless II”) (The Utility Reform Network et al., Real Parties in Interest)

12 Cal App. 5th 1197, 2018 Cal. App. LEXIS 1705.(March 13, 2018)

The Court of Appeal (First District, Division Four) again reversed the Commission’s award of intervenor compensation to TURN and CforAT. In New Cingular Wireless PCS, LLC Para. 3 infra; hereinafter New Cingular Wireless I), the same Court rejected AT&T’s argument that no intervenor compensation could be awarded in a case where no decision on the merits was issued. Nonetheless the Court vacated the intervenor compensation awards that were the subject of New Cingular Wireless I because the Commission did not provide an adequate explanation of how it determined the level of the awards.  On remand, the Commission again awarded intervenor compensation to TURN and CforAT.  While it modified its rationale for doing so, the awards were in the same amounts awarded in the order vacated by New Cingular Wireless I.  AT&T again sought appellate review and again the Commission order was vacated.  The Court’s decision was initially unpublished and one can glean from the Court’s tone a view by the Court that it had already said all it thought it needed to express in New Cingular Wireless I, observing that:

On remand, as expected ,the CPUC jettisoned its harmonization rationale, but seems to have focused on the fact we confirmed it has discretion to award intervenors’ compensation under…[Sections 1801-1807] while ignoring the limitations we identified.  We said that, on remand, the CPUC needed to “anchor its rationale in its own factual findings and show how those findings fit into the statutory language” while avoiding the justification of fees and costs for reasons that “produce[] a range of discretion going well beyond anything claimed in . . . [any] prior administrative decisions since 1992.”

The Remand Decisions fail to bridge this gap in the record, choosing instead to patch it over with a new rationale that suffers from the same flaw we identified before.  The CPUC has now taken the view that, so long as positions advocated by TURN and CforAT “would have” materially influenced a decision on the merits in Docket. No. I11-06-009—had there been one—an award of 100 percent of the claimed fees and costs is reasonable…  In doing so, it makes no serious attempt to link with any specificity the fees and costs incurred to any of the many interim rulings, both procedural and substantive, that the record shows were adopted as part of the final resolution of Docket No. I.11-06-009.

Again, the matter was remanded to the Commission “for further proceedings consistent with New Cingular [I] and with this opinion.”  Ironically, the day before the Court issued its opinion in New Cingular II, TURN filed a notice with the Commission seeking intervenor compensation for its activity in New Cingular I.  On August 21, 2019, in response to the remand directed by New Cingular II, the Commission ordered TURN to repay approximately $100,000 in intervenor compensation (D. 19-08-031).

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