In the proposed rule, each utility would be required to designate an officer who is responsible for compliance with the rules and for receiving, investigating and attempting to resolve complaints. ORA seeks clarification of the Commission's intention that the same officer who is responsible for compliance with the affiliate rules generally would also be responsible for compliance with the complaint procedures and remedies. That is our intent. In order to clarify that intent, we will slightly modify the language. Edison, as well as SDG&E/SoCalGas, suggests giving this officer the title of Affiliate Compliance Manager and allowing this officer to delegate responsibilities to one or more other officers and employees. These are reasonable suggestions, so long as the Affiliate Compliance Manager is ultimately accountable for compliance with these rules. We have modified the language in this section to read as to read as follows:
"Each utility shall designate an Affiliate Compliance Manager who is responsible for compliance with these affiliate rules and the utility's compliance plan adopted pursuant to these rules. Such officer shall also be responsible for receiving, investigating and attempting to resolve complaints. The Affiliate Compliance Manger may, however, delegate responsibilities to other officers and employees."
C.2.a. Informal Resolution Period
This section gives the defendant utility three weeks from the date the complaint is filed to investigate and attempt to resolve the complaint. The resolution effort must include a meet-and-confer session with the complainant and, potentially, a Commission staff representative. PG&E would increase this initial period from three to six weeks. This would be inconsistent with our desire to allow the complaint process to move expeditiously, since it would lead to delaying the time for filing an answer to a complaint. The answer must normally be filed within 30 days. PG&E Energy Services proposes changing the language from "three weeks" to "15 business days." Although a three-week period will normally include 15 business days, changing the language as proposed will enable the utility to use a full 15 business days even when the otherwise-applicable three-week period includes one or more holidays. We will make this change to ensure that the parties can take full advantage of this expedited period for pursuing an informal resolution.
QST Energy and the University of California/California State University each ask for the addition of a provision allowing for the pursuit of a temporary restraining order, where appropriate, during the initial informal resolution period. Such a provision is consistent with our intention to allow for the use of temporary restraining orders. We will modify language proposed by the University of California/California State University to indicate that an assigned commissioner or administrative law judge may also issue a temporary restraining order, where appropriate.
Section C.2.a. is modified to read as follows:
"The utility shall have 15 working days from the date the complaint is filed to investigate and attempt to resolve the complaint. The resolution process shall include a meet-and-confer session with the complainant. A Commission staff member may, upon request by the utility or the complainant, participate in such meet-and-confer sessions and shall participate in the case of a whistleblower complaint.
"A party filing a complaint may seek a temporary restraining order at the time the formal complaint is filed. The defendant utility and other interested parties may file responses to a request for a temporary restraining order within ten days of the filing of the request. An assigned commissioner or administrative law judge may shorten the period for responses, where appropriate. An assigned commissioner or administrative law judge, or the Commission shall act on the request for a temporary restraining order within 30 days, and may grant the request when: (1) the moving party is reasonably likely to prevail on the merits, and (2) a temporary restraining order relief is necessary to avoid irreparable injury, will not substantially harm other parts, and is consistent with the public interest.
"A temporary restraining order issued by an assigned commissioner or administrative law judge will only stay in effect until the end of the day of the next regularly-scheduled commission meeting at which the commission can consider an order seeking a preliminary injunction. If the commission declines to issue a preliminary injunction, the temporary restraining order will be immediately lifted. Whether or not a temporary restraining order or a preliminary injunction is issued, the underlying complaint may still move forward."
C.2.c. Complaint-Specific Reporting Requirements
Here, the utility is required to prepare a report on each complaint within four weeks of the filing of the complaint, providing relevant information about the complaint, any resolution achieved, and any steps taken to prevent further violations from occurring. PG&E asks to extend the time for filing the report to six weeks. For now, we prefer to retain the four-week requirement, so that this report will coincide with the filing of an answer to the complaint. We will revisit this deadline at a later time if it proves to create problems. Edison would change the language to state that the utility must only make a "reasonable effort" to supply the report within 30 days. This would make the deadline meaningless. We prefer to entertain formal requests for extensions of time in the event that unexpected circumstances make it impractical to provide the report within four weeks.
PacifiCorp proposes replacing the words "to prevent further violation" with the word "remedial," so that the report would include discussion of any remedial actions taken in response to the complaint. PacifiCorp does not explain what it sees as being the significance of this change. It is not clear that the proposed change would add precision to the rule, and we will not adopt it.
QST Energy proposes that the defendant utility be required to post each report on its web pages and that the Commission plan to post the report on its web pages, as well. We agree that it would be useful to preserve all such reports and make them available on the Commission's web pages. However, we will ask the staff to pursue this approach in the context of its broader efforts to expand our on-line offerings. For the time being, we will simply modify the rule to require that the utility make electronic copies of its reports available to the Commission and to all parties that provide e-mail addresses. This section is modified to read as follows:
"The utility shall prepare and preserve a report on each complaint, all relevant dates, companies, customers, and employees involved, and if applicable, the resolution reached, the date of the resolution and any actions taken to prevent further violations from occurring. The report shall be provided to the Commission and all parties within four weeks of the date the complaint was filed. In addition, to providing hard copies, the utility shall also provide electronic copies to the Commission and to any party providing an e-mail address."
C.2.d. Commission Investigations
As proposed, this provision states that the Commission may always convert a complaint to an investigation and impose appropriate penalties if it finds that a utility violated a rule. Sierra "strongly objects" to this provision, arguing that after having satisfactorily resolved a complaint, there is no reason for the Commission to investigate further. Sierra seeks "some sort of objective limitation" on the Commission's discretion to investigate further. Dynergy "strongly supports" the proposal, arguing that the Commission must be able to impose remedies that are not compromised by a settlement between the complainant and the utility.
The Commission always has the discretion to open an investigation into any matter related to its jurisdiction. Thus, we are not changing the status quo by including this option in the enforcement rules. Instead, we are notifying all of those affected by the rules that we will pursue this approach where appropriate. We will not place restrictions on our ability to exercise reasonable discretion. In addition, it would be misleading if we were to announce some limitation on the Commission's ability to initiate investigations, as Sierra proposes, because we cannot bind future Commissions.
PG&E Energy Services has proposed two changes to this section. The first would strike the reference to the Commission seeking a finding that the utility violated a rule, and instead state that the Commission would determine whether the utility violated the rules. We will adopt this change, since it more accurately reflects the Commission's neutral role in considering whether or not violations have occurred. However, PG&E Energy Services also proposes that the Commission impose on itself a limit of 30 days after the utility issues a complaint report in which to open an investigation. We will not adopt this change, since there is no apparent reason that the Commission should be unable to initiate an investigation at any time it appears necessary.
This section is modified to read as follows:
"The Commission may, notwithstanding any resolution reached by the utility and the complainant, convert a complaint to an investigation and determine whether the utility violated these rules, and impose any appropriate penalties under Section VIII.D. or any other remedies provided by the Commission's rules or the Public Utilities Code."
There are no objections to the report requirements addressed in this subsection of the rule. PG&E offers one grammatical improvement, which we will adopt. The revised rule reads as follows:
"The utility will inform the Commission's Energy Division and Consumer Services Division of the results of this dispute resolution process. If the dispute is resolved, the utility shall inform the Commission staff of the actions taken to resolve the complaint and the date the complaint was resolved."
C.4 Steps Taken When Informal Resolution Fails
The Joint Petitioners ask that the 180-period for resolving formal complaints set forth in this subsection be reduced to 120 days, because the timely resolution of complaints is an important element of an effective enforcement scheme. We agree with that timely decisions are critical to this process. However, in an era in which even ex parte orders must be released for comment 30 days prior to a vote by the Commission, a 120-day decision deadline is not practical in most situations.
A utility answer is not required until 30 days after the complaint is served on the utility. Because of the need to release a proposed decision for comment, the Commission would have only 60 days in which to schedule and hold any necessary prehearing conference and hearings, receive and consider briefs, and release a proposed decision. Even where no other work demands intervene, this would be a very ambitious schedule.
In light of procedural constraints resulting from SB 960 and the recent SB 779, it is not practical to commit to a 180-day schedule either. Instead, we will retain a goal of deciding such cases within 180 days whenever possible. We will make three other small changes to make the language more precise. The revised subsection reads as follows:
"If the utility and the complainant cannot reach a resolution of the complaint, the utility will so inform the Commission's Energy Division. It will also file an answer to the complaint within thirty days of the issuance by the Commission's Docket office of instructions to answer the original complaint. Within ten business days of notice of failure to resolve the complaint, Energy Division staff will meet and confer with the utility and the complainant and propose actions to resolve the complaint. Under the circumstances where the complainant and the utility cannot resolve the complaint, the Commission shall strive to resolve the complaint within 180 days of the date the instructions to answer are served on the utility."
C.5. Web-Based Log of Complaints
This subsection would require the Commission staff to maintain, on its web page, a public log of all new, pending and resolved complaints. This appears to be a reasonable way to ensure that information about affiliate transaction complaints will be available in one central location. The log would include information about the allegations contained in the complaint, a description of any similar complaint at the Commission, and information about the resolution of any similar complaints. Sierra objects to including any reference to similar complaints or any information about the resolution of the complaint. Sierra argues that such information can prejudice the parties. Since all of this information is otherwise available, it is not clear how its posting on the Commission's web site would be prejudicial. We will direct the staff to provide this information on the web site as part of our continuing efforts to improve access to relevant information.
PG&E Energy Services would add dismissed cases to this list. Since dismissal is one way to resolve a case, we see no need to specifically add it to the list. PG&E suggests that the information in the log include the date the complaint was resolved, as well as how it was resolved. This a useful addition, and we will make this change to the rule.
The revised subsection reads as follows:
"The Commission shall maintain on its web page a public log of all new, pending and resolved complaints. The Commission shall update the log once at least once every week. The log shall specify, at a minimum, the date the complaint was received, the specific allegations contained in the complaint, the date the complaint was resolved and the manner in which it was resolved, and a description of any similar complaints, including the resolution of such similar complaints."
C.6 Consumer Services Division Procedures
As discussed above, in the section of this decision that addresses Standing, we are removing this proposed subsection.
