Review petition granted for AT&T in New Cingular Wireless PCS LLC case

By Angela Underwood | Apr 12, 2018

SAN FRANCISCO – The 1st District Court of Appeal in California has granted AT&T's petition for a writ of review and remanded the matter for further proceedings in a matter regarding compensation awards.

In a March 29 ruling, Judge Jon Streeter, John Ruvolo and Ethan Schulman granted AT&T’s petition for review of remand decisions regarding New Cingular Wireless PCS LLC v. Public Utilities Com. and the California Public Utilities Commission (CPUC). The decision states that previously, the court had vacated awards in a ruling that CPUC later awarded in two decisions to The Utility Reform Network (TURN) and the Center for Accessible Technology (CforAT).

Referring back to the 2016 ruling, authoring judge Streeter began the panel discussion writing that “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- 4 06-009—had there been one—an award of 100 percent of the claimed fees and costs is reasonable,” Streeter added.

The judge refers back to the Article 5, amended in 1992, to further define the panel’s reasoning.

“The Legislature blessed the concept of using a CPUC determination of substantiality as the threshold trigger for intervenor compensation eligibility, but confined the discretion it conferred by tethering the amounts awardable to objectively successful advocacy,” Streeter wrote.

However, the judge noted the panel’s apprehension with Legislature’s statutory language.

“If, as a policy matter, the ‘order or decision’ limitation hinders the CPUC’s ability to promote the overall goal of incentivizing intervenor participation in CPUC proceedings in an optimal way, that issue is for the Legislature to address,” Streeter wrote.

Furthermore, Streeter wrote “if it is not feasible to trace time and costs billed by TURN and CforAT with precision to an ‘order or decision,’ the CPUC must make an effort to discount the claimed amount for that lack of precision—allocating the claimed time and cost in reasonable proportion to the amounts these intervenors claimed for the proceedings as a whole—rather than simply accept 100 percent of what is claimed on the ground all of work done by TURN and CforAT, in gross, hypothetically ‘would have’ influenced a decision on the merits that was never made.”

Streeter concluded ruling that AT&T’s appeal for review is granted while the remand decisions are vacated until additional “proceedings consistent with New Cingular and with this opinion,” can be reached.

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