California Senate Bill SB611 Amended / Bill

 BILL NUMBER: SB 611AMENDED BILL TEXT AMENDED IN SENATE MAY 28, 2013 AMENDED IN SENATE MAY 8, 2013 AMENDED IN SENATE APRIL 15, 2013 INTRODUCED BY Senator Hill FEBRUARY 22, 2013 An act to amend  Sections 101 and 110 of, and to add Section 203.5 to, the Business and Professions Code, and to amend  Sections 309.5,  402, 409,  1731, 1756, and 5900 of the Public Utilities Code, relating to the Public Utilities Commission. LEGISLATIVE COUNSEL'S DIGEST SB 611, as amended, Hill. Public Utilities Commission: Division of Ratepayer Advocates. The California Constitution establishes the Public Utilities Commission, with jurisdiction over all public utilities, as defined. Existing law establishes the Division of Ratepayer Advocates within the commission to represent the interests of public utility customers and subscribers, with the goal of obtaining the lowest possible rate for service consistent with reliable and safe service levels. Existing law requires the Director of the Division of Ratepayer Advocates to submit an annual budget to the commission for final approval. This bill would rename the Division of Ratepayer Advocates the Office of Ratepayer Advocates,  would transfer the office to the Department of Consumer Affairs,  would authorize the office to seek rehearings and judicial review of commission decisions, and would require that the director of the office develop a budget for the office that would be submitted to the Department of Finance for final approval.  Existing law establishes the Public Utilities Commission Utilities Reimbursement Account and authorizes the commission to annually determine a fee to be paid by every public utility providing service directly to customers or subscribers and subject to the jurisdiction of the commission, except for a railroad corporation. The commission is required to establish the fee, with the approval of the Department of Finance, to produce a total amount equal to that amount established in the authorized commission budget for the same year, and an appropriate reserve to regulate public utilities, less specified sources of funding. Existing law provides for the Public Utilities Commission Ratepayer Advocate Account in the General Fund and requires that money from the Public Utilities Commission Utilities Reimbursement Account be transferred in the annual Budget Act to the Public Utilities Commission Ratepayer Advocate Account for performance of the duties of the division.   This bill would require the commission to continue to collect moneys through Public Utilities Commission reimbursement fees for the support of the Office of Ratepayer Advocates in the amounts authorized by the Department of Finance. The bill would provide that moneys collected for the support of the Office of Ratepayer Advocates be paid into the Office of Ratepayer Advocates Special Fund Account, which the bill would create in the existing Consumer Affairs Fund. The bill would provide that moneys in the account would be available, upon appropriation by the Legislature, only for use by the Office of Ratepayer Advocates in performing its assigned functions and that moneys in the account are held in trust on behalf of the public utility ratepayers from whom the moneys were collected and may not be appropriated, or in any other manner transferred or otherwise diverted, to any other fund or entity.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 101 of the   Business and Professions Code   is amended to read:  101. The department is comprised of: (a) The Dental Board of California. (b) The Medical Board of California. (c) The State Board of Optometry. (d) The California State Board of Pharmacy. (e) The Veterinary Medical Board. (f) The California Board of Accountancy. (g) The California Architects Board. (h) The Bureau of Barbering and Cosmetology. (i) The Board for Professional Engineers and Land Surveyors. (j) The Contractors' State License Board. (k) The Bureau for Private Postsecondary Education. (l) The Bureau of Electronic and Appliance Repair, Home Furnishings, and Thermal Insulation. (m) The Board of Registered Nursing. (n) The Board of Behavioral Sciences. (o) The State Athletic Commission. (p) The Cemetery and Funeral Bureau. (q) The State Board of Guide Dogs for the Blind. (r) The Bureau of Security and Investigative Services. (s) The Court Reporters Board of California. (t) The Board of Vocational Nursing and Psychiatric Technicians. (u) The Landscape Architects Technical Committee. (v) The Division of Investigation. (w) The Bureau of Automotive Repair. (x) The Respiratory Care Board of California. (y) The Acupuncture Board. (z) The Board of Psychology. (aa) The California Board of Podiatric Medicine. (ab) The Physical Therapy Board of California. (ac) The Arbitration Review Program. (ad) The Physician Assistant Committee. (ae) The Speech-Language Pathology and Audiology Board. (af) The California Board of Occupational Therapy. (ag) The Osteopathic Medical Board of California. (ah) The Naturopathic Medicine Committee. (ai) The Dental Hygiene Committee of California. (aj) The Professional Fiduciaries Bureau.  (ak) The Office of Ratepayer Advocates.   (ak)   (al)  Any other boards, offices, or officers subject to its jurisdiction by law.  SEC. 2.   Section 110 of the   Business and Professions Code   is amended to read:  110.  The   (a)     Except as provided in subdivision (b), the  department shall have possession and control of all records, books, papers, offices, equipment, supplies, funds, appropriations, land and other property--real or personal--now or hereafter held for the benefit or use of all of the bodies, offices or officers comprising the department. The title to all property held by any of these bodies, offices or officers for the use and benefit of the state, is vested in the State of California to be held in the possession of the department. Except as authorized by a board, the department shall not have the possession and control of examination questions prior to submission to applicants at scheduled examinations.  (b) The Office of Ratepayer Advocates shall have possession and control of all records, books, papers, offices, equipment, supplies, funds, appropriations, land and other property, real or personal, now or hereafter held for the benefit or use of the office. The title to all property held by the Office of Ratepayer Advocates is vested in the State of California in trust on behalf of the ratepayers of the state's public utilities, to be held in the possession of the office. The records of the Office of Ratepayer Advocates are subject to Section 583 of the Public Utilities Code.   SEC. 3.   Section 203   .5 is added to the   Business and Professions Code   , to read:   203.5. Within the Consumer Affairs Fund there is hereby created the Office of Ratepayer Advocates Special Fund Account. Moneys in the account shall be available, upon appropriation by the Legislature, only for use by the Office of Ratepayer Advocates in performing its functions pursuant to Section 309.5 of the Public Utilities Code. Moneys in the account are held in trust on behalf of the public utility ratepayers from whom the moneys were collected and may not be appropriated, or in any other manner transferred or otherwise diverted, to any other fund or entity.   SECTION 1.   SEC. 4.  Section 309.5 of the Public Utilities Code is amended to read: 309.5. (a) There is  , within the Department of Consumer Affairs,  an Office of Ratepayer Advocates to represent and advocate on behalf of the interests of public utility customers and subscribers within the jurisdiction of the commission. The goal of the office shall be to obtain the lowest possible rate for service consistent with reliable and safe service levels. For revenue allocation and rate design matters, the office shall primarily consider the interests of residential and small commercial customers. The office may seek rehearing and judicial review of commission decisions pursuant to Article 2 (commencing with Section 1731) and Article 3 (commencing with Section 1756) of Chapter 9. (b) The director of the office shall be appointed by, and serve at the pleasure of, the Governor, subject to confirmation by the Senate. The director shall annually appear before the appropriate policy committees of the Assembly and the Senate to report on the activities of the  division   office  . (c) The director shall develop a budget for the office which shall be subject to final approval of the Department of Finance. As authorized in the approved budget, the office shall employ personnel and resources, including attorneys and other legal support staff at a level sufficient to ensure that customer and subscriber interests are effectively represented in all significant proceedings. The office may employ experts necessary to carry out its functions. The director may appoint a lead attorney who shall represent the office, and shall report to and serve at the pleasure of the director. All attorneys performing services for the office shall report to and be directed by the lead attorney appointed by the director. (d) The commission shall develop appropriate procedures to ensure that the existence of the office does not create a conflict of roles for any employee. The procedures shall include, but shall not be limited to, the development of a code of conduct and procedures for ensuring that advocates and their representatives on a particular case or proceeding are not advising decisionmakers on the same case or proceeding. (e) The office may compel the production or disclosure of any information it deems necessary to perform its duties from any entity regulated by the commission, provided that any objections to any request for information shall be decided in writing by the assigned commissioner or by the commission, if there is no assigned commissioner.  The office shall have access, upon request, to all information provided to the commission, a commissioner, or an officer or person employed by the commission pursuant to Section 314.  (f)  There is hereby created the Public Utilities Commission Ratepayer Advocate Account in the General Fund.   The commission shall continue to collect moneys pursuant to Chapter 2.5 (commencing with Section 401) for the support of the Office of Ratepayer Advocates in the amounts   authorized by the Department of Finance.  Moneys from the Public Utilities Commission Utilities Reimbursement Account in the General Fund shall be transferred in the annual Budget Act to the  Public Utilities Commission Ratepayer Advocate Account   Office of Ratepayer Advocates Special Fund Account in the Consumer Affairs Fund  . The funds in the  Public Utilities Commission Ratepayer Advocate   Office of Ratepayer Advocates Special Fund  Account shall be utilized exclusively by the office in the performance of its duties as determined by the director. The director shall annually submit a staffing report  to the Director of Finance  containing a comparison of the staffing levels for each five-year period. (g) On or before January 10 of each year, the office shall provide to the chairperson of the fiscal committee of each house of the Legislature and to the Joint Legislative Budget Committee all of the following information: (1) The number of personnel years utilized during the prior year by the Office of Ratepayer Advocates. (2) The total dollars expended by the Office of Ratepayer Advocates in the prior year, the estimated total dollars expended in the current year, and the total dollars proposed for appropriation in the following budget year. (3) Workload standards and measures for the Office of Ratepayer Advocates. (h) The office shall meet and confer in an informal setting with a regulated entity prior to issuing a report or pleading to the commission regarding alleged misconduct, or a violation of a law or a commission rule or order, raised by the office in a complaint. The meet and confer process shall be utilized in good faith to reach agreement on issues raised by the office regarding any regulated entity in the complaint proceeding.  SEC. 5.   Section 402 of the  Public Utilities Code   is amended to read:  402. The Public Utilities Commission Utilities Reimbursement Account is hereby continued in existence. All fees collected by the commission pursuant to Section 431 shall be transmitted to the Treasurer at least quarterly for deposit in the account  or the Office of Ratepayer Advocates Special Fund Account within the Consumer Affairs Fund  .  SEC. 6.   Section 409 of the   Public Utilities Code   is amended to read:  409. (a) Notwithstanding any other provision of law, all fees and charges collected pursuant to this code by the commission from each public utility subject to Section 431, with the exception of any penalty collected pursuant to Section 405 or 406, shall be deposited in the Public Utilities Commission Utilities Reimbursement Account, in addition to the fee authorized by Section 431  , o   r in the   Office of Ratepayer Advocates Special Fund Account within the Consumer Affairs Fund  . (b) A penalty collected pursuant to Section 405 or 406 shall be deposited in the General Fund.  SEC. 2.   SEC. 7.  Section 1731 of the Public Utilities Code is amended to read: 1731. (a) The commission shall set an effective date when issuing an order or decision. The commission may set the effective date of an order or decision prior to the date of issuance of the order or decision. (b) (1) After any order or decision has been made by the commission, any party to the action or proceeding, including the Office of Ratepayer Advocates, or any stockholder or bondholder or other party pecuniarily interested in the public utility affected, may apply for a rehearing in respect to any matters determined in the action or proceeding and specified in the application for rehearing. The commission may grant and hold a rehearing on those matters, if in its judgment sufficient reason is made to appear. No cause of action arising out of any order or decision of the commission shall accrue in any court to any corporation or person unless the corporation or person has filed an application to the commission for a rehearing within 30 days after the date of issuance or within 10 days after the date of issuance in the case of an order issued pursuant to either Article 5 (commencing with Section 816) or Article 6 (commencing with Section 851) of Chapter 4 relating to security transactions and the transfer or encumbrance of utility property. (2) The commission shall notify the parties of the issuance of an order or decision by either mail or electronic transmission. Notification of the parties may be accomplished by one of the following methods: (A) Mailing the order or decision to the parties to the action or proceeding. (B) If a party to an action or proceeding consents in advance to receive notice of any order or decision related to the action or proceeding by electronic mail address, notification of the party may be accomplished by transmitting an electronic copy of the official version of the order or decision to the party if the party has provided an electronic mail address to the commission. (C) If a party to an action or proceeding consents in advance to receive notice of any order or decision related to the action or proceeding by electronic mail address, notification of the party may be accomplished by transmitting a link to an Internet Web site where the official version of the order or decision is readily available to the party if the party has provided an electronic mail address to the commission. (3) For the purposes of this article, "date of issuance" means the mailing or electronic transmission date that is stamped on the official version of the order or decision  .  (c) No cause of action arising out of any order or decision of the commission construing, applying, or implementing the provisions of Chapter 4 of the Statutes of the 2001-02 First Extraordinary Session that (1) relates to the determination or implementation of the department's revenue requirements, or the establishment or implementation of bond or power charges necessary to recover those revenue requirements, or (2) in the sole determination of the Department of Water Resources, the expedited review of order or decision of the commission is necessary or desirable, for the maintenance of any credit ratings on any bonds or notes of the department issued pursuant to Division 27 (commencing with Section 80000) of the Water Code or for the department to meet its obligations with respect to any bonds or notes pursuant to that division, shall accrue in any court to any corporation or person unless the corporation or person has filed an application with the commission for a rehearing within 10 days after the date of issuance of the order or decision. The Department of Water Resources shall notify the commission of any determination pursuant to paragraph (2) of this subdivision prior to the issuance by the commission of any order or decision construing, applying, or implementing the provisions of Chapter 4 of the Statutes of the 2001-02 First Extraordinary Session. The commission shall issue its decision and order on rehearing within 20 days after the filing of the application.  SEC. 3.   SEC. 8.  Section 1756 of the Public Utilities Code is amended to read: 1756. (a) Within 30 days after the commission issues its decision denying the application for a rehearing, or, if the application was granted, then within 30 days after the commission issues its decision on rehearing, or at least 120 days after the application is granted if no decision on rehearing has been issued, any aggrieved party, including the Office of Ratepayer Advocates, may petition for a writ of review in the court of appeal or the Supreme Court for the purpose of having the lawfulness of the original order or decision or of the order or decision on rehearing inquired into and determined. If the writ issues, it shall be made returnable at a time and place specified by court order and shall direct the commission to certify its record in the case to the court within the time specified. (b) The petition for review shall be served upon the executive director and the general counsel of the commission either personally or by service at the office of the commission. (c) For purposes of this section, the issuance of a decision or the granting of an application shall be construed to have occurred on the date of issuance, as defined in paragraph (3) of subdivision (b) of Section 1731. (d) The venue of a petition filed in the court of appeal pursuant to this section shall be in the judicial district in which the petitioner resides. If the petitioner is a business, venue shall be in the judicial district in which the petitioner has its principal place of business in California. (e) Any party may seek from the Supreme Court, pursuant to California Rules of Court, an order transferring related actions to a single appellate district. (f) For purposes of this section, review of decisions pertaining solely to water corporations shall only be by petition for writ of review in the Supreme Court, except that review of complaint or enforcement proceedings may be in the court of appeal or the Supreme Court. (g) No order or decision arising out of a commission proceeding under Section 854 shall be reviewable in the court of appeal pursuant to subdivision (a) if the application for commission authority to complete the merger or acquisition was filed on or before December 31, 1998, by two telecommunications-related corporations including at least one which provides local telecommunications service to over one million California customers. These orders or decisions shall be reviewed pursuant to the Public Utilities Code in existence on December 31, 1998.  SEC. 4.   SEC. 9.  Section 5900 of the Public Utilities Code is amended to read: 5900. (a) The holder of a state franchise shall comply with the provisions of Sections 53055, 53055.1, 53055.2, and 53088.2 of the Government Code, and any other customer service standards pertaining to the provision of video service established by federal law or regulation or adopted by subsequent enactment of the Legislature. All customer service and consumer protection standards under this section shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards. (b) The holder of a state franchise shall comply with provisions of Section 637.5 of the Penal Code and the privacy standards contained in Section 551 et seq. of Title 47 of the United States Code. (c) The local entity shall enforce all of the customer service and protection standards of this section with respect to complaints received from residents within the local entity's jurisdiction, but it may not adopt or seek to enforce any additional or different customer service or other performance standards under Section 53055.3 or subdivision (q), (r), or (s) of Section 53088.2 of the Government Code, or any other authority or provision of law. (d) The local entity shall, by ordinance or resolution, provide a schedule of penalties for any material breach by a holder of a state franchise of this section. No monetary penalties shall be assessed for a material breach if it is out of the reasonable control of the holder. Further, no monetary penalties may be imposed prior to January 1, 2007. Any schedule of monetary penalties adopted pursuant to this section shall in no event exceed five hundred dollars ($500) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500) for each occurrence of a material breach. However, if a material breach of this section has occurred, and the local entity has provided notice and a fine or penalty has been assessed, and if a subsequent material breach of the same nature occurs within 12 months, the penalties may be increased by the local entity to a maximum of one thousand dollars ($1,000) for each day of each material breach, not to exceed three thousand dollars ($3,000) for each occurrence of the material breach. If a third or further material breach of the same nature occurs within those same 12 months, and the local entity has provided notice and a fine or penalty has been assessed, the penalties may be increased to a maximum of two thousand five hundred dollars ($2,500) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500) for each occurrence of the material breach. With respect to video providers subject to a franchise or license, any monetary penalties assessed under this section shall be reduced dollar-for-dollar to the extent any liquidated damage or penalty provision of a current cable television ordinance, franchise contract, or license agreement imposes a monetary obligation upon a video provider for the same customer service failures, and no other monetary damages may be assessed. (e) The local entity shall give the video service provider written notice of any alleged material breach of the customer service standards of this division and allow the video provider at least 30 days from receipt of the notice to remedy the specified material breach. (f) A material breach for the purposes of assessing penalties shall be deemed to have occurred for each day within the jurisdiction of each local entity, following the expiration of the period specified in subdivision (e), that any material breach has not been remedied by the video service provider, irrespective of the number of customers or subscribers affected. (g) Any penalty assessed pursuant to this section shall be remitted to the local entity, which shall submit one-half of the penalty to the Digital Divide Account established in Section 280.5. (h) Any interested person may seek judicial review of a decision of the local entity in a court of appropriate jurisdiction. For this purpose, a court of law shall conduct a de novo review of any issues presented. (i) This section shall not preclude a party affected by this section from utilizing any judicial remedy available to that party without regard to this section. Actions taken by a local legislative body, including a local franchising entity, pursuant to this section shall not be binding upon a court of law. For this purpose, a court of law shall conduct de novo review of any issues presented. (j) For purposes of this section, "material breach" means any substantial and repeated failure of a video service provider to comply with service quality and other standards specified in subdivision (a). (k) The Office of Ratepayer Advocates shall have authority to advocate on behalf of video subscribers regarding renewal of a state-issued franchise and enforcement of this section, and Sections 5890 and 5950. For this purpose, the office shall have access to any information in the possession of the commission subject to all restrictions on disclosure of that information that are applicable to the commission.