Toward Utility Rate Normalization

22 Cal. 3d 529 (1978), 585 P.2d 491

Over various constitutional and statutory objections raised by TURN, the Court affirmed a Commission decision adopting single message-rate timing (“SMRT”) for Pacific Bell.  TURN’s principal argument was that the findings failed to satisfy Section 1705.  By a 4‑3 vote, the Court disagreed.  The Court also took the opportunity to dispel any notion that a party must “seek rehearing of a decision following rehearing” before seeking a writ of review.  The Court observed that, instead, the second application may be implicitly foreclosed by Section 1756.  In a 2011 decision, D.11-10-020, the Commission took the view that the second application for rehearing was absolutely foreclosed but left room for the Commission to grant an “exception” in “extraordinary circumstances”, a view the Commission again took in 2015 (D.15-05-056).  The two decisions treat the matter of “second round applications for rehearing” as almost one of policy rather than law although D.15-05-056 does state the rule to be as follows:  “a second round rehearing application must be based on new issues presented in the decision being challenged …and not on issues that are entirely new to the proceeding…”  Somewhat surprisingly, D.15-05-056 makes no reference to the decision addressed here nor really addresses the matter from any statutory perspective.  This memorandum dwells on this issue because the filing deadlines are statutory; a  party that guesses wrong on the point it could be left with no remedy.  If a second application for rehearing is filed and dismissed, it will be too late to file a petition for writ of review of the first rehearing decision.  If a petition for writ of review is instead filed, the petition may be dismissed if a second application for rehearing was required; but, at that point, it will be too late to file one.  Another issue recently raised with regard to applications for rehearing is the lawfulness of the Commission’s common practice of responding to an application for rehearing by modifying the decision at issue and then simply denying rehearing of the decision as modified without any further proceedings; Section 1736 provides that the modification of a decision of which rehearing is sought can take place only after “such rehearing..”

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