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 Commisson 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 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.

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