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1. New Cingular Wireless PCS,4 (The Utility Reform Network et al., Real Parties in Interest)

Posted by Arthur Newmark in Writ of Review Cases

246 Cal. App. 4th 784; 2016 Cal. App. LEXIS 298 (April 19, 2016) 

The Court of Appeal (First, District, Division 4) affirmed5 the Commission’s determination that Section 1801-1807 of the Public Utilities Code (“Article 5”) permitted to the Commission to award intervenor compensation with respect to a decision other than one on the merits of the case; the decision at issue dismissed as moot a Commission investigation regarding AT&T’s proposed acquisition of T-Mobile. The Court went on, however, to reverse the specific intervenor compensation awards to The Utility Reform Network (TURN) and the Center for Accessible Technology (CforAT). The Court, citing, Southern California Gas Company (Para. 41, infra), observed that it was addressing “a set of ‘explicit, limited fee rules’…enacted as part of detailed statutory scheme defining the CPUC’s jurisdiction in this area.” Accordingly, the Court concluded that it need not broadly defer to the Commission’s construction of Article 5 in the manner described in Greyhound (Para. 68, infra).6 The Court cautioned that “applying the Greyhound test here would effectively swallow the statutory scheme in whole, rendering its limitations subordinate to the CPUC’s interpretation of the statute.” The Court held that the level of deference to be afforded the Commission was instead governed by Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1 (“Yamaha”) and Ramirez v. Yosemite Water Co. (1999) 20 Cal. 4th 785 (“Ramirez”). The Court acknowledged that the California Supreme Court had not settled on the proper measure of deference required where an agency decision at issue was “hybrid” in nature, both quasi-legislative and interpretive. Accordingly, the Court, like other intermediate appellate courts, tested the Commission determination (in great detail) under both Yamaha and Ramirez. In the Court’s view, application of Yamaha and Ramirez required that the awards be set aside because “the CPUC’s explanation of the legal basis for the awards at issue falls short.” The Court was unable to discern whether the Commission had placed undue emphasis on Section 1801.3(b) (which states that Article 5 is to be administered in a manner that encourages participation) when it applied Section 1802(i) (detailed definition of “substantial contribution”). It noted that the broad policy directive in Section 1801.3(b) should not, “be used as a roving warrant to nullify more specific statutory limitations that follow.” Accordingly it vacated the awards to TURN and CforAT “without prejudice to reinstatement…on grounds consistent with this opinion.”
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4Only the name of the Petitioner and, where appropriate, a real party interest is provided.
5Prior to 1996, the Court could either affirm or “annul” the Commission’s order. Today, Section 1758(a) provides that after review, the court “shall enter judgment either affirming or setting aside the order or decision of the commission.” This memo employs the more common terms, “affirm” or “reverse.”
6The high-water mark of Greyhound deference is found in Southern California Edison (Para. 24, infra) v. Public Utilities Commission, 117 Cal. App. 4th 1039 (2004). New Cingular Wireless PCS may represent outflowing tide.

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