Filed 4/19/16
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                    DIVISION FOUR


NEW CINGULAR WIRELESS PCS, LLC
et al.,
        Petitioners,
                                                  A144005
v.
PUBLIC UTILITIES COMMISSION OF                    (California Public Utilities Commission
THE STATE OF CALIFORNIA,                           Decisions 13-05-031, 14-06-026,
                                                   14-12-085)
        Respondent;
THE UTILITY REFORM NETWORK et
al.,
        Real Parties in Interest.


        Here we decide whether the Public Utilities Commission of the State of California
(CPUC) properly awarded fees and costs to two intervenors, The Utility Reform Network
(TURN) and the Center for Accessible Technology (CforAT), for their work in a
complex telecommunications merger review proceeding dismissed by the CPUC as moot
for reasons unrelated to anything that happened in the proceeding itself.
        A group of entities affiliated with AT&T, Inc. (AT&T), one of the merger
proponents, filed a petition for a writ of review seeking reversal of these awards. The
petition alleges that neither TURN nor CforAT “substantially assisted the commission in
the making of its order or decision” (Pub. Util. Code, § 1802) and therefore that neither
of them made a “substantial contribution” to the proceeding, as that phrase is specifically




                                             1
defined in Public Utilities Code, Part I, Chapter 9, Article 5, sections 1801 et seq. (Article
5),1 the statutory scheme governing intervenor compensation in the CPUC’s proceedings.
        We deny the requested writ relief, but for reasons explained below will
nonetheless vacate the challenged awards without prejudice to the renewal and
redetermination by the CPUC of TURN’s and CforAT’s requests for fees and costs.
                           I.     PROCEDURAL BACKGROUND
        Five years ago, AT&T sought to acquire T-Mobile USA, then a subsidiary of
Deutsche Telekom, and merge the operations and infrastructure of T-Mobile USA into
itself. The prospect of this combination attracted immediate and intense regulatory
scrutiny nationwide.
        Beginning in approximately April 2011, when the AT&T/T-Mobile merger
proposal was announced, and for the next five months, the Federal Communications
Commission (FCC), the United States Department of Justice, and various state regulatory
agencies, undertook overlapping investigation and review proceedings to determine
whether the merger would have adverse effects on competition and customer service, and
if so, whether mitigation measures were warranted as a condition of regulatory approval.
In California, the center of the action was the CPUC’s investigatory proceeding in this
case, Investigation No. 11-06-009 (hereafter Docket No. I11–06–009), which
commenced June 9, 2011 pursuant to an Order Instituting Investigation (OII). Among
the participants in Docket No. I11-06-009 were the petitioners here, New Cingular
Wireless PCS, LLC, AT&T Mobility Wireless Operations Holdings Inc., Santa Barbara
Cellular Systems, Ltd., and AT&T Mobility Wireless Operations Holdings, LLC
(collectively, New Cingular), which are all entities owned directly or indirectly by
AT&T.
        The OII set an expedited schedule under which any and all comments from
interested parties had to be submitted within 60 days. Procedurally, the CPUC sought to
carry out and complete the investigation of a complex transaction having national scope

        1
            Unless otherwise indicated, all statutory references are to the Public Utilities
Code.
                                                 2
within a few months, and in doing so, to build an evidentiary record robust enough for the
CPUC’s staff to prepare written comments for filing in the FCC proceedings. The end
goal was to enable the CPUC to provide its input on the impact of the proposed merger in
California and to take a position on any appropriate mitigation conditions, should the
merger be approved by the FCC. Since the FCC proceedings were themselves unfolding
on an expedited schedule, with a target for completion by year-end 2011, maintaining the
required schedule in Docket No. I11-06-009, without slippage, was of paramount
importance. The CPUC apparently believed it could not accomplish all of this on its
own, solely with staff support, because upon issuance of the OII it immediately invited
participation from a group of intervenors, including TURN and CforAT.
       TURN appears to have taken a leading role in the proceeding from the beginning,
starting with its successful advocacy concerning the need for an intensive review of the
proposed transaction before the OII even issued.2 At the outset of the proceeding, TURN
won some crucial procedural victories that kept things on track, first defeating an effort
by AT&T to stop the investigation based on jurisdictional and preemption arguments that
the CPUC has no authority to regulate wireless telephone carriers,3 and then arguing
successfully that the OII proceeding should be categorized as a “procedural rate-setting
proceeding,” which had the effect of triggering a number of rules designed to ensure




       2
        Decision Granting Compensation to the Utility Reform Network for Substantial
Contributions to Decision 12-08-025 (May 23, 2013) Cal.P.U.C. Decision No. 13-05-
031, page 5 <http://www.cpuc.ca.gov/> [2013 Cal.P.U.C. Lexis 270, p. *3] (hereafter
Decision No. 13-05-031) (“In meetings with the Commission leading up to the issuance
of the OII, and in a pleading after the OII was adopted, TURN advocated that the
Commission had a statutory responsibility to do a detailed review of the proposed
merger.”).
       3
         Decision No. 13-05-031, supra, at page 6 (“While not specifically ruling on
[jurisdictional and preemption] issues, the Commission’s actions were consistent with
TURN’s recommendations. The Commission moved forward with the investigation and
issued an ALJ ruling” containing information requests in accord with the scope of inquiry
TURN sought.).
                                             3
public transparency (among other things, restrictions on ex parte contacts).4 On TURN’s
motion, the administrative law judge (ALJ) took official notice of a complaint filed by
the Department of Justice seeking to enjoin the AT&T/T-Mobile merger.5 TURN also
prevailed in numerous scheduling disputes and discovery contests.6 As a result of these
preliminary rulings, TURN and all other parties in Docket No. I11-06-009 were able to
obtain, subject to a protective order, thousands of pages of confidential data—including a
financial model of the proposed merger that was essential for economic analysis of its
impacts in California—in time to analyze and file detailed comments within the tight
time-frames required by the schedule.
       The CPUC placed a high priority on obtaining maximum public input during the
investigatory process. Thus, “[c]onsistent with the direction set forth in the OII, the
Assigned Commissioner and the ALJ held workshops and public participation hearings
throughout California in the month of July [2011], to gather information on specific
issues related to the proposed merger and to hear public comment. Each workshop was
facilitated by the assigned ALJ, with the assigned Commissioner and other
Commissioners in attendance. Participants at each workshop included independent
experts, representatives of the respondents and other market participants, and
representatives of other interested groups, including unions, consumer advocates, and
others. Each workshop consisted of panel presentations, and provided opportunities for
parties to ask questions of panel members. Each workshop also included time during


       4
          Decision No. 13-05-031, supra, at pages 4–5 (“AT&T objected to the
[‘ratesetting’] categorization as ‘a matter of law’ asserting that since the commission has
no authority over rates of wireless carriers, then the Commission could not categorize the
proceeding as ‘rate-setting.’ ” TURN opposed the appeal, and “[w]hile there was no
official ruling on the categorization appeal, the Commission retained the ratesetting
category consistent with the outcome TURN recommended.”).
       5
           Decision No. 13-05-031, supra, at page 16.
       6
          Decision No. 13-05-031, supra, at page 16 (“It is notable that TURN prevailed
on all its issues relating to getting access to AT&T materials as well as in seeking
extensions of time to permit TURN and other parties to analyze such materials and
develop appropriate pleadings.”).
                                                4
which members of the public could comment.” (Decision Dismissing Investigation Into
Acquisition of T-Mobile by AT&T and New Cingular Wireless (Aug. 23, 2012)
Cal.P.U.C. Dec. No. 12-08-025, p. 6 [2012 Cal.P.U.C. Lexis 365, p. *8] (hereafter Final
Decision and Order).)
       A key piece of the CPUC’s record-building process in Docket No. I11-06-009
was economic analysis, which is often at the core of antitrust litigation, and is something
that typically requires examination of voluminous financial data. In this area, the bulk of
the work was done by TURN’s expert economist, Dr. Trevor Roycroft, who filed a
detailed affidavit setting forth his opinions in August 2011. Before filing his affidavit,
Dr. Roycroft appeared and presented his views at a public workshop on July 22, 2011.
At all three workshops, speakers from TURN presented their views, arguing that the
proposed merger would have serious anticompetitive effects in California. Consistent
with the position it took from the beginning of the proceeding in favor of public
transparency, TURN later sought to persuade the ALJ that the transcripts of these
workshops should be posted and made available publicly. The ALJ so ordered.7
       Before the CPUC had occasion to prepare comments for submission to the FCC,
AT&T and Deutsche Telekom unexpectedly announced the withdrawal of their proposed
merger transaction (see Federal Communications Com., Order No. DA 11-1955 (Nov. 29,
2011) p. 2, at <https://apps.fcc.gov/edocs_public/attachmatch/DA-11-1955A1.pdf> [as of
April 19, 2016].), and in November 2011 moved to dismiss Docket No. I11-06-009 on
grounds of mootness. The CPUC granted that motion on August 23, 2012 (the Final
Decision and Order). The Final Decision and Order was more than a naked, unexplained
dismissal. It addressed and decided a number of collateral matters, including whether to
adopt all of the interim rulings that had issued in the course of the proceeding. In section
5 entitled “Affirmation of All Rulings,” the CPUC explained: “All Rulings by the
assigned ALJ and assigned Commissioner in the course of this proceeding, including

       7
        Administrative Law Judge’s Ruling Placing Workshop Materials in the Record
and Memorializing Several Electronic Mail Rulings (Sept. 19, 2011) Cal.P.U.C. Docket
No. I11-06-009; see Decision No. 13-05-031, supra, at page 16.
                                              5
rulings made by electronic mail, are affirmed. Rulings affirmed through this decision
include the July 5, 2011, ruling requiring that AT&T provide and pay for support services
for all workshops and public participation hearings held in this proceeding. In addition,
this decision affirms various electronic mail rulings modifying the proceedings,
schedules, granting party status to [specified intervenors], and addressing other
procedural issues.”
       The Final Decision and Order also addressed the issue of intervenor compensation,
explaining as follows: “The former merger proponents moved to dismiss this proceeding
after approximately six months of concentrated effort to evaluate the proposed
transaction, undertaken in good faith by Commission staff and parties participating in this
proceeding. Given the advanced stage of the proceeding at the time the respondents
abandoned the proposed transaction and requested dismissal, it is reasonable for the
Commission to acknowledge the work done by parties to this proceeding, and to
explicitly state that requests for intervenor compensation are appropriate.” TURN and
CforAT then moved for awards of intervenor compensation, and in subsequent orders—
each of which, in turn, was based on detailed findings explaining the “substantial
contributions” TURN and CforAT made to specific rulings prior to dismissal—the CPUC
issued the compensation awards that are now at issue (respectively, the TURN Award
and the CforAT Award). These orders were finalized following denial of a motion for
rehearing on December 18, 2014 (the Rehearing Decision).8


       8
         (See Decision No. 13-05-031, supra [granting $255,944.03 in compensation to
TURN]; Decision Awarding Compensation to Center for Accessible Technology for
Substantial Contribution to Decision 12-08-025 (June 12, 2014) Cal.P.U.C. Dec. No. 14-
06-026 [2014 Cal.P.U.C. Lexis 247] [granting $20,286.42 in compensation to CforAT]
(hereafter Decision No. 14-06-026); Order Modifying Decision Nos. 13-05-031 and 14-
06-026 and Denying Rehearing (Dec. 18, 2014) Cal.P.U.C. Dec. No. 14-12-085 [2014
Cal.P.U.C. Lexis 629] (the Rehearing Decision).) The underlying findings are set forth in
the form of a chart running thirty-four pages in TURN’s case, and twelve pages in
CforAT’s case. These charts, which in effect track proposed findings by TURN and
CforAT, have three columns. The first column, labeled “Contribution,” describes the
claimant intervenor’s advocacy during the course of the proceeding on specific issues; the
second column, labeled “Specific References to Claimant’s Presentation and Decision,”
                                             6
       New Cingular now petitions for review in this court, urging us to reverse the Final
Decision and Order insofar as it finds TURN and CforAT to be eligible for intervenor
compensation, and to reverse outright the three orders that followed the eligibility
finding—the TURN Award, the CforAT Award, and the Rehearing Decision.
                                     III.   DISCUSSION
       Section 1803 provides, in essence, that the CPUC shall award reasonable
advocate’s fees, expert witness fees, and costs of preparing for and participating in a
proceeding, to any customer who makes a “substantial contribution to the adoption, in
whole or in part, of the commission’s order or decision,” and for whom such participation
or intervention imposes a “significant financial hardship.” (§ 1803, subds. (a) & (b).)
New Cingular challenges the compensation awards to TURN and CforAT on the ground
that neither of them could have made a “substantial contribution” to any “decision or
order” of the CPUC because AT&T withdrew its proposed merger with T-Mobile for
reasons unrelated to anything these intervenors did or argued in Docket No. I11-06-009.
The implicit premise of this contention, at least as presented in New Cingular’s briefs—
and as acknowledged explicitly by New Cingular’s counsel at oral argument—is that, to
qualify as a “substantial contribution,” an intervenor’s advocacy must contribute to an
“order or decision” on the merits.
       New Cingular’s interpretation of Article 5 is based on statutory provisions
contemplating that requests for compensation awards may be made only after issuance of
the “final order or decision by the commission in the hearing or proceedings” and that,

cross-references an order or decision, in virtually every instance showing a clear linkage;
and the third column, labeled “Showing Accepted by CPUC,” allowed the CPUC to
indicate whether it agreed with the proposed findings on an issue-by-issue basis. All of
TURN’s and CforAT’s proposed findings were accepted by the CPUC. For TURN, the
supporting findings list seven specific rulings that adopt or reflect a position taken by
TURN, beginning with the OII itself. (See Dec. No. 13-05-031, supra, at pp. 1–19
[listing the OII and later rulings dated June 28, 2011, July 19, 2011, Aug. 11, 2011, Aug.
31, 2011, Sept. 19, 2011, Nov. 16, 2011].) And for CforAT—which had a much
narrower role in the proceeding than TURN did, and the amount of its award was
commensurately lower—the supporting finding lists one specific ruling. (See Dec. No.
14-06-026, supra, at p. 4 [listing ruling of Aug. 11, 2011].)
                                              7
upon the making of any such request, “the commission shall issue a decision that
determines whether or not the customer has made a substantial contribution to the final
order or decision in the hearing or proceeding.” (§ 1804, subds. (c) & (e).)
While this reading of Article 5 has some surface plausibility, given the references to a
“final order or decision,” the record in this case illustrates that the CPUC’s reading of
section 1803, subdivision (a) is equally plausible, since its final order in Docket No. I11-
06-009 expressly adopts all interim procedural rulings made prior to dismissal. Thus, we
are presented with an ambiguity.
       “ ‘As in any case involving statutory interpretation, our fundamental task is to
determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] The
rules for performing this task are well established. We begin by examining the statutory
language, giving it a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language in isolation; rather, we look to the entire substance of the
statutes in order to determine their scope and purposes. [Citations.] . . . That is, we
construe the words in question in context, keeping in mind the statutes’ nature and
obvious purposes. [Citation.] We must harmonize the various parts of the enactments by
considering them in the context of the statutory framework as a whole.” (People v. Cole
(2006) 38 Cal.4th 964, 974–975 (Cole). To discern the legislative intent here, we begin
our analysis with an examination of the statutory language, setting out the relevant text of
Article 5, placed within its overall context and structure.
       A.      The Text and Structure of Article 5
        Article 5 opens with a broad statement of purpose: “The purpose of this article is
to provide compensation for reasonable advocate’s fees, reasonable expert witness fees,
and other reasonable costs to public utility customers of participation or intervention in
any proceeding of the commission.” (§ 1801.) There follows a more specific statement
of legislative intent. “It is the intent of the Legislature that: [¶] . . . [¶] (b) The provisions
of this article shall be administered in a manner that encourages the effective and efficient
participation of all groups that have a stake in the public utility regulation process. [¶]. . .
[¶] (d) Intervenors be compensated for making a substantial contribution to proceedings

                                                8
of the commission, as determined by the commission in its orders and decisions. . . .”
(§ 1801.3, italics added.) Next, there is a series of definitions, including the following:
“(f) ‘Proceeding’ means an application, complaint, or investigation, rulemaking,
alternative dispute resolution procedures in lieu of formal proceedings as may be
sponsored or endorsed by the commission, or other formal proceeding before the
commission. [¶] . . . [¶] . . . [¶] (i) ‘Substantial contribution’ means that, in the judgment
of the commission, the customer’s presentation has substantially assisted the commission
in the making of its order or decision because the order or decision has adopted in whole
or in part one or more factual contentions, legal contentions, or specific policy or
procedural recommendations presented by the customer . . . .” (§ 1802, italics added.)
       These definitional sections are followed by a series of clauses addressing
eligibility for compensation. “Participation by a customer that materially supplements,
complements, or contributes to the presentation of another party, including the
commission staff, may be fully eligible for compensation if the participation makes a
substantial contribution to a commission order or decision, consistent with Section
1801.3.” (§ 1802.5, italics added.) The core eligibility criteria—and the focal point of
the dispute in this case—are twofold. “The commission shall award reasonable
advocate’s fees, reasonable expert witness fees, and other reasonable costs of preparation
for and participation in a hearing or proceeding to any customer who . . . satisfies both of
the following requirements: [¶] (a) The customer’s presentation makes a substantial
contribution to the adoption, in whole or in part, of the commission’s order or decision.
[¶] (b) Participation or intervention without an award of fees or costs imposes a
significant financial hardship.” (§ 1803, italics added.)
       Finally, Article 5 concludes with a series of clauses that set out pre-conditions to
eligibility, mostly procedural in nature, including the following: “(c) Following issuance
of a final order or decision by the commission in the hearing or proceeding, a customer
who has been found . . . to be eligible for an award of compensation may file within 60
days a request for an award. The request shall include at a minimum a detailed
description of services and expenditures and a description of the customer’s substantial

                                               9
contribution to the hearing or proceeding. . . . [¶] . . . [¶] (e) Within 75 days after the
filing of a request for compensation pursuant to subdivision (c), . . . the commission shall
issue a decision that determines whether or not the customer has made a substantial
contribution to the final order or decision in the hearing or proceeding.” (§ 1804, subds.
(c) & (e), italics added.)
       On its face, the above language yields no definitive answer to the statutory
construction question presented here. That question turns on the meaning of the phrase
“order or decision,” which appears in section 1802, subdivision (i); section 1802.5;
section 1803, subdivision (a); and section 1804, subdivisions (c) and (e). The context
surrounding the use of “order or decision” in each of these clauses sheds no particular
light on the meaning of the phrase. Semantically, the words “order or decision” could be
given any number of permissible interpretations,9 all of which at some level call for an
assessment of how “substantial” an intervenor’s contribution must be to the “order or
decision” in question if it is to trigger compensation eligibility. Rather than look at this
interpretive issue in binary terms as a matter of winning or losing in the final order
terminating a proceeding, the CPUC appears to view it as a matter of context and degree,
to be evaluated in its considered discretion against the backdrop of the proceeding as a
whole. As explained in more detail below we conclude that is a reasonable interpretation
of the key statutory provisions (§§ 1802, subd. (i), 1803, subd. (a) & 1804, subds. (c) &
(e)), when they are read together, giving meaning to each one, with the Legislature’s
expressly stated intent in mind (see § 1801.3).
       New Cingular’s position runs contrary to the statutory language contemplating that
even a “procedural recommendation[]” (§ 1802, subd. (i)) if adopted by the CPUC in a
“final order or decision” (§ 1804, subd. (c)) will justify an award of compensation. Here,


       9
         For example, to merit an award of compensation, an intervenor’s contribution to
an “order or decision” could mean contributing to (1) any outcome determinative “order
or decision,” whether on the merits or on a procedural matter; (2) any “order or decision,”
whether on the merits or a procedural matter, so long as it terminates the proceeding; or
(3) any “order or decision,” whether or not it is on the merits or on a procedural matter,
so long as it is included in the order terminating the proceeding.
                                              10
Section 5 of the Final Decision and Order affirms all interim decisions of the ALJ and
Assigned Commissioner. Some of the procedural positions taken by TURN are reflected
in formal interim rulings, and some others, although not memorialized in any written
order,10 were effectively followed. What is important, though, is not the form in which
positions taken by TURN were adopted, but that the CPUC decided to adopt some
position TURN advocated. By proceeding through discovery to the brink of preparing
comments on the merits, the CPUC implicitly decided to reject the argument that it was
powerless to proceed; and because it treated the proceeding, procedurally, as a rate-
setting matter, it implicitly decided to follow TURN’s classification recommendation.
These were not trivial procedural matters in the overall context of the proceeding. For its
part, CforAT apparently joined in many of the positions advocated by TURN, which
presumably ensured that the proceedings included a uniquely valuable point of view from
the standpoint of consumers with disabilities. Although the findings supporting
CforAT’s contributions suggest that its procedural contributions were, by comparison to
TURN, more modest, so was the amount of its award. Thus, as we read the record here,
the CPUC’s position appears to be more consistent with the statutory language than the
position proffered by New Cingular.
          B.     The Statutory History
          For confirmation of the legislative intent, we may look to the pertinent statutory
history and the wider circumstances of Article 5’s enactment. (See Dyna-Med, Inc. v.
Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [“Both the legislative
history of the statute and the wider historical circumstances of its enactment may be
considered in ascertaining the legislative intent.”].) In this case, that history is complex
and multilayered, as will become apparent, but after taking stock of everything, we
conclude that the CPUC’s reading of the statutory text aligns best with the legislative
intent.


          10
          See footnotes 3 and 4, ante (positions taken by TURN on jurisdictional and
classification issues).
                                               11
              1.     The Origins of Article 5
       The model for Article 5 was a set of regulations adopted by the CPUC in 1980
pursuant to a federal statute, the Public Utilities Regulatory Policies Act of 1978
(PURPA), 16 U.S.C. sections 2601 et seq. Section 122 of PURPA allows intervenors in
electric utility regulatory proceedings to bring an action for reimbursement of their
participation costs in state court for having “substantially contributed” to those
proceedings. (16 U.S.C. § 2632(a)(1) & (2).) But resort to state court is not required
under PURPA if the state regulatory authority has a “reasonable procedure” for awarding
compensation on the same basis. (16 U.S.C. § 2632(a)(2).) To establish such a
procedure, on June 27, 1980 the CPUC promulgated regulations permitting intervenors to
request compensation in regulatory proceedings contemplated by PURPA. (See 1993
Cal. Code Regs., tit. 20, art. 18.5, former §§ 76.01–76.11 (rules 76.01–76.11) & history
foll. § 76.01, p. 22.2 (hereafter PURPA Regulations).) Under rule 76.06 of the PURPA
Regulations, the basic test for entitlement to an award, a test which in turn comes from
section 122, subdivision (a) of PURPA (16 U.S.C. § 2632(a)), authorized awards of
compensation to any participating “consumer” in a covered electrical utility proceeding
who “substantially contributed to the adoption, in whole or in part, in a Commission
order or decision, of a PURPA position advocated by such consumer related to a PURPA
standard.” (PURPA Regulations, rule 76.06.)
       From the beginning, the CPUC took the view that because it could not anticipate
the procedural nuances of every situation that might arise in the application of the
“substantial contribution” test, it would have to flesh out the meaning of that concept
over time, using its discretion. In its order adopting the PURPA Regulations, the CPUC
noted that, since Congress intended the term “substantially contributed” to be broadly
construed under PURPA (Utah State Coalition of Senior Citizens v. Utah Power & Light
Co. (Utah 1989) 776 P.2d 632, 638; H.R.Rep. No. 95-1750, 2d Sess. (1978), reprinted in
1978 U.S. Code Cong. & Admin. News, pp. 7797, 7817), it intended to take a similarly
expansive approach in implementing the PURPA Regulations: “There are many
questions about the terms used in Section 122(a) which require the exercise of judgment

                                             12
by the commission. We adopt rules today which provide guidance to this exercise of
discretion but do not rely on precise formulae to resolve all concerns. [¶] The phrase
‘position advocated by such consumer’ is an example of language in the section which
require[s] flexibility in interpretation. Some would construe this to mean the specific end
result in a decision advocated by the consumer. Others would construe this to mean a
factual or legal contention upon which a recommendation is based. [¶] Similar questions
arise regarding the nature of a ‘substantial contribution’. Decisionmaking is a process.
Substantial contributions are made in many ways and at many times in the process. A
record is more than a dry tabulation of facts leading to a clear decision. [¶] Persuasively
raising a new issue at a prehearing conference[, for example,] can change the nature of a
proceeding [. . . , just as] [i]ntense cross-examination of a single key witness can
contribute more than any entire affirmative presentation.” (Order Establishing Rules to
Compensate Qualified Electric Consumers for their Participation in Electric Utility Rate
Proceedings (1980) 4 Cal.P.U.C.2d 3, 8, [1980 Cal.P.U.C. Lexis 636, *21–*22], italics
added (hereafter Order Establishing PURPA Regulations).)
              2.     Consumers Lobby Against Monopolies v. CPUC

       Outside of the context of electric utilities regulation proceedings covered by the
PURPA Regulations, the CPUC initially viewed its authority to award intervenors
compensation for participating in its proceedings as quite limited. In Consumers Lobby
Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891 (CLAM), the
California Supreme Court adopted that view as well, at the CPUC’s urging. In CLAM,
two consumer advocates sought compensation for their participation in CPUC
proceedings. The first of these parties, Consumers Lobby Against Monopolies (CLAM),
filed a reparations complaint with the CPUC alleging that Pacific Telephone and
Telegraph (Pacific) was failing to collect equipment disconnection charges from
commercial customers. Following a settlement in which Pacific agreed to pay $400,000
into a CPUC-approved fund for public benefit, CLAM sought reimbursement for the time
and expenses it spent pursuing the matter. (Id. at pp. 897–898.) In a separate proceeding,


                                             13
the second consumer advocate group, TURN,11 requested an award of fees and costs on
the ground that its advocacy in a multiparty rate-setting proceeding led Pacific to adopt
significant reforms, including the cessation of certain “ ‘wiretapping/monitoring’ ”
activities that only TURN had focused on in the case. (Id. at p. 898.) The CPUC denied
both compensation claims, taking the position in each case that it had no authority to
award fees and costs. (Id. at p. 897.)
       In consolidated writ proceedings, the Supreme Court reversed in part. (CLAM,
supra, 25 Cal.3d at pp. 915–916.) Drawing a distinction between quasi-judicial
proceedings, such as the complaint proceedings in which CLAM had been involved, and
quasi-legislative proceedings, such as the rate-setting proceedings in which TURN had
been involved, the court ruled that the CPUC had authority to award compensation to
CLAM, but not to TURN. (Id. at p. 913.) In quasi-adjudicatory proceedings, the court
explained, the CPUC has equitable powers analogous to those of a judicial tribunal, and
thus a fee award was justified under the “common fund” doctrine where a litigant confers
a significant benefit on others. (Id. at pp. 905–908.) But with respect to TURN, the
“[c]onsiderations . . . militat[ing] in favor of recognizing equitable jurisdiction to award
attorney fees in reparation cases . . . do not apply . . . .” (Id. at p. 909.) Echoing concerns
that the CPUC itself raised, the court held that because of the complexity of the issues in
rate-setting cases, the task of evaluating and separately valuing the contributions of the
many parties involved was impracticable. (Id. at pp. 909–910.) The petitioners
attempted to argue that section 701, a broad and expansive grant of CPUC regulatory
authority, may be read to confer blanket authority to award intervenor compensation, but
the court was unpersuaded. (25 Cal.3d at pp. 910–911.) “The decision to include such
‘public participation costs’ in ratemaking proceedings is . . . appropriately within the
province of the Legislature,” the court said. (Id at p. 912.)



       11
         At that time TURN stood for Toward Utility Rate Normalization, but it later
changed its name to The Utility Reform Network. (See
<http://www.turn.org/donate/sylvia.pdf> [as of April 19, 2016].)
                                              14
              3.     The OII 100 Regulations, Southern California Gas, and the
                     Enactment of Article 5
       Following the decision in CLAM, the CPUC shifted course and began to take a
broader view of its authority to grant intervenor compensation in ratemaking proceedings.
In May 1983, it promulgated a new set of regulations, providing for the award of public
participation costs to eligible intervenors in virtually all formal CPUC proceedings,
including rate-setting proceedings. (1993 Cal. Code Regs., tit 20, art. 18.6, former
§§ 76.21–76.32 (rules 76.21–76.32) & history foll. § 76.21 (the OII 100 Regulations).)
In a reversal of the position it took in CLAM—where it argued that it did not have
authority to award intervenor compensation under section 701 (CLAM, supra, 25 Cal.3d
at pp. 897, 906)—the CPUC cited section 1701, the basic grant of statutory authority
allowing the CPUC to make rules of practice and procedure in proceedings before it, as
the statutory authority for these rules.12 Adopting a variation on the PURPA-derived test
that would later appear in Article 5, the PURPA and OII 100 Regulations allowed
participants in covered proceedings to claim reimbursement for fees and costs upon a
showing of “significant financial hardship” where a “substantial contribution” to the
proceedings was made. (PURPA Regulations, rule 76.05; OII 100 Regulations, rule
76.26.)
       In the OII 100 Regulations, the CPUC formally codified the idea—announced in
1980 in its Order Establishing PURPA Regulations—that it would use its discretionary
judgment to establish the contours of what constitutes a “substantial contribution,” which
it defined as “that contribution which, in the judgment of the Commission, greatly assists
the Commission to promote a public purpose in a matter relating to an issue by the
adoption, at least in part, of the participant’s position. A showing of substantial
contribution shall include, but need not be limited to, a demonstration that the

       12
         See Order Instituting Investigation By Rulemaking into the Adoption of New
Rules of Practice and Procedure to Process and Administer Requests for Attorney and
Witness Fees and Other Expenses of Participants in Commission Proceedings 100,
Decision No. 83-04-017 (1983) 11 Cal.P.U.C.2d 177, page 3 [1983 Cal.P.U.C. Lexis 942,
pp. *9–*10].
                                             15
Commission’s order or decision has adopted factual contention(s), legal contention(s),
and/or specific recommendation(s) presented by the participant.” (OII 100 Regulations,
rule 76.26, italics added.)
       The OII 100 Regulations drew an immediate challenge from a group of utilities in
Southern California Gas Co. v. Public Utilities Com. (1985) 38 Cal.3d 64 (Southern
California Gas) on the ground that the CPUC’s assertion of regulatory authority to
provide for intervenor compensation was directly contrary to the Supreme Court’s
decision in CLAM. But while Southern California Gas was pending in the Supreme
Court, the Legislature enacted Article 5, passing it in the form of Senate Bill No. 4, which
was signed by Governor Deukmejian on July 5, 1984. (Stats. 1984, ch. 297, § 2,
pp. 1526–1529.) 13 Borrowing definitional language drawn from rule 76.26 of the OII
100 Regulations—including use of the phrase “in the judgment of the Commission”—
Article 5 defined “substantial contribution” to mean “the customer’s presentation has
substantially assisted the commission in the making of its order or decision because the
order or decision has adopted in whole or in part one or more factual contentions, legal
contentions, or specific policy or procedural recommendations presented by the
customer.” (Id. at p. 1527, § 1802, former subd. (g), now included in subd. (i), amended
by Stats. 1992, ch. 942 § 3, redesignating § 1802, former subd. (g) as former subd. (h)
(Assem. Bill 1975); further amended by Stats. 2003, ch. 300 § 2, redesignating § 1802,
former subd. (h) as subd. (i) (Sen. Bill 521).)
       Although the open-ended framing of the “substantial contribution” definition in
rule 76.26 (a “showing of substantial contribution shall include, but need not be limited to
. . .”) (OII 100 Regulations, rule 76.26) was in some respects more expansive than the
definitional language ultimately adopted by statute in Article 5, there is no indication in
the legislative history that the definition of “substantial contribution” was intended to be


       13
         To carry Article 5 into effect, the CPUC promulgated a new set of intervenor
compensation regulations tracking the statutory language of Article 5 in identical terms.
(See Cal. Code Regs., tit. 20, art. 18.7, former rules 76.51–76.62 (the Article 5
Implementing Regulations).)
                                             16
different, in substance, from that used in rule 76.26. Indeed, in other respects the
definitional language adopted by statute was slightly broader than that used in rule
76.26.14 Nothing in the legislative history shows any particular focus on these textual
nuances or any intent to narrow the CPUC’s discretionary power to make findings of
“substantial contribution.” And one thing is abundantly clear: The main purpose of
Article 5, stated over and over in the legislative history—indicating that the Legislature
acted in direct response to Southern California Gas—was to “confirm” the statutory
authority for the CPUC’s then existing practice of awarding intervenor compensation
under the OII 100 Regulations, retrospectively, and to codify that practice by statute,
going forward.15 In light of newly enacted Article 5, the Supreme Court dismissed the

       14
          As introduced by Senator Montoya, Senate Bill No. 4’s definition of “substantial
contribution” adopted by the Legislature required a showing that the intervenor “has
substantially assisted the commission in making [an] order or decision because . . . the
order or decision has adopted one or more factual contentions, legal contentions, or
specific recommendation presented by” the intervenor. (Sen. Bill No. 4 (1982–1983 Reg.
Sess.) as introduced December 6, 1982 (hereafter Senate Bill 4, sometimes referred to as
“SB 4”); art. 5, § 1802, former subd. (g).).) That definitional language tracked, word for
word, the definition of “substantial contribution” in rule 76.26 of the OII Regulations,
which required a showing that an “order or decision has adopted factual contention(s),
legal contention(s), and/or specific recommendation(s) presented by” the intervenor,
except that rule 76.26 permitted a finding of “substantial contribution” where the
intervenor’s position was adopted only “in part.” (OII Regulations, rule 76.26.) As SB 4
was amended after conference negotiations between the Assembly and the Senate
between April and August of 1983—and as ultimately enacted—the bill continued to
track the language of rule 76.26, but added some breadth, revising the definition of
“substantial contribution” to require a showing that the intervenor “has substantially
assisted the commission in the making of its order or decision because the order or
decision has adopted in whole or in part one or more factual contentions, legal
contentions, or specific policy or procedural recommendations presented by the
customer.” (Sen. Bill 4, § 2, adding art. 5, § 1802, former subd. (g), as amended in
conference and passed by the Assembly June 11, 1984 and by the Senate June 21, 1984.)
       15
         Legislative Counsel’s Digest of Senate Bill 4 (“This bill would state the intent
of the Legislature to confirm the authority of the commission to make awards to
participants in proceedings of the commission commenced on or before December 31,
1984, pursuant to the commission’s rules and regulations, and to require that awards in
proceedings commenced on and after January 1, 1985, be governed by this bill.”); Senate
Democratic and Republican Caucuses, Conference Report, joint analysis of Senate Bill 4
                                             17
writ proceedings in Southern California Gas as moot. (Southern California Gas, supra,
38 Cal.3d at p. 67.) The court’s brief opinion resolving the case explained that “even if
the Legislature cannot ‘confirm’ that such authority always existed, despite contrary
judicial precedent, it may furnish the missing authority nunc pro tunc. SB 4 appears to
have that effect.” (Ibid.)
              4.     The 1992 Amendments
       Responding to a Report of the California Auditor General entitled “The California
Public Utilities Commission Can Improve Aspects of its Program to Compensate
Intervenors” (1992) (the State Auditor’s Report),16 the legislature passed Assembly Bill
No. 1975 in August 1992 (Assem. Bill No. 1975 (1991–1992 Reg. Sess.) (hereafter
Assembly Bill 1975, sometimes referred to as “AB 1975”)), substantially updating




(June 7, 1984) (“[t]he amendments . . . confirm the authority of the [C]PUC to issue
awards under their current rules until December 31, 1984, after which the terms of this
bill shall become effective”); Senate Republican Caucus Digest re: Senate Bill 4 (June
13, 1984) (“This bill would now state the intent of the Legislature to confirm the
authority of the Public Utilities Commission . . . to make awards to participants in
[C]PUC proceedings commenced on or before December 31, 1984, pursuant to [C]PUC
rules and regulations, and to require that awards in proceedings commenced on and after
January 1, 1985, be governed by this bill.”); Senate Democratic Caucus Conference
Report on Senate Bill 4 as amended August 30, 1983, p. 2 (“this bill merely provides the
[C]PUC with statutory authority for the existing practice of awarding intervenor fees”);
Assembly Office of Research, Conference Committee Report No. 011583 on Senate Bill
4 as amended August 30, 1983 (Senate bill, adopted with Assembly amendments
following conference, “provided a statutory basis for the Public Utilities Commission
. . . to award fees for costs incurred by advocates of residential consumer interests who
participate in public utility rate proceedings before the [C]PUC . . . The [C]PUC already
awards these costs as a matter of practice.”). See People v. Martinez (1987) 194
Cal.App.3d 15, 22 (in relying on legislative history “courts may properly consider
committee reports [citation], partisan caucus analyses [citation], and the digest of the
Legislative Counsel [citation].”).
       16
         We take judicial notice of this report on our own motion as an official
governmental act under Evidence Code sections 452, subdivision (c) and 459. Under the
same statutes we judicially notice all legislative history materials cited in this opinion.
                                            18
Article 5 with a set of amendments (the 1992 Amendments).17 Rather than promote
broad public participation in CPUC proceedings, the State Auditor found that Article 5
had actually created a disincentive for many groups who might have wanted to participate
in CPUC proceedings, but were wary of doing so because of the uncertainty surrounding
whether they would be paid. (State Auditor’s Report, p.13.) Thus, the focus of AB 1975
was to revise Article 5 so that, implementing it going forward, the CPUC could achieve
the Legislature’s original objective of encouraging broad public input in CPUC
proceedings by creating stronger incentives for intervenors to participate.
       AB 1975 was sponsored by the Chair of the Assembly Committee on Utilities and
Commerce, Assemblywoman Gwen Moore. (Assem. Bill 1975 as introduced Mar. 8,
1991.) In remarks in committee hearings and when AB 1975 came before the Assembly
for final vote, Assemblywoman Moore argued that it was necessary to broaden the
circumstances in which compensation would be paid in order “to assure that effective
intervenor participation continues as the [C]PUC moves toward more informal
proceedings, with less emphasis on adversarial process with formal hearings, decisions
and orders.” (Statement of Assemblywoman Moore on Assem. Bill. 1975 on Assembly
Floor (Aug. 26, 1992).) 18 Moore’s bill was passed in the Assembly and Senate and


       17
           See Senate Committee on Energy and Public Utilities, Bill Analysis for June 23,
1992 Hearing on Assembly Bill 1975 as amended June 18, 1992 (‘The bill responds, in
part, to a January 1992 report by the Auditor General of California”); Senate Rules
Committee, Floor Analysis, Assembly Bill 1975, Third Reading (Aug. 24, 1992) (same).
       18
         See also Assembly Committee on Utilities and Commerce, Hearing Digest on
Assembly Bill 1975 (April 29, 1991), comments at p. 2, italics added (“Since the
landmark decision of the California Supreme Court in [CLAM] describing the [C]PUC’s
power to award attorneys fees and costs to successful litigants in their proceedings, the
[C]PUC and the Legislature have attempted to articulate procedures for affording
nonutility participants in [C]PUC proceedings reimbursement for their costs. . . . In 1983,
the [C]PUC issued OII 100, a comprehensive set of rules governing intervenor
compensation. These rules were appealed to the California Supreme Court, and during
the pendency of the appeal the Legislature enacted SB 4 (Montoya, 1984) . . . .[¶] . . . [¶]
The intervenor funding regime established by SB 4 is affected by changes in the
regulatory process which have occurred in the years since its adoption. The [C]PUC has
increased the use of informal proceedings and procedures, such as settlement, workshops,
                                            19
signed by Governor Wilson on September 26, 1992. (Stats. 1992, ch. 942, p. 4485.) AB
1975 made two notable changes to Article 5. It revised and expanded the defined term
“proceeding” in section 1802, subdivision (f), which marks out the range of procedural
settings in which Article 5 applies, extending its coverage from only rate-related
proceedings to a broad array of proceedings, both formal and informal.19 AB 1975 also
added a very detailed statement of legislative intent. Section 1801.3, among other things,
directs the CPUC to implement Article 5 “in a manner that encourages the effective and
efficient participation of all groups that have a stake in the public utility regulation
process.” (§ 1801.3, subd. (b).)20


advice letters, etc. The [C]PUC also extended the intervals between formal proceedings,
such as general rate cases, and in the case of telephone utilities, virtually eliminated them.
As a result[,] the opportunities for a formal [C]PUC decision adopting a party’s
contention have been reduced. The effect of creating more long and drawn-out
proceedings, coupled with the reduction in the number of proceedings that are actually
brought to closure, is straining the ability to participate of even the most dedicated
consumer advocate organizations.”); Assembly Committee on Utilities and Commerce,
Hearing Digest on Assembly Bill 1975, as amended May 7, 1991, page 3 (“The CPUC
has been making increased use of informal proceedings, such as workshops and
settlement discussions, which do not directly effect [sic] rates. . . . This bill specifically
provides for compensation in these informal proceedings.”). See In re R.V. (2015) 61
Cal.4th 181, 194 (relying on views of author of legislation “whose statement was
included in a number of bill analyses” to discern legislative intent where statute, as
enacted, was silent on point in dispute).
       19
          (See Stats. 1992, ch. 942, § 3, adding section 1802, subdivision (f) by
amendment; Assem. Bill 1975 as amended July 22, 1992.) With the broadened definition
of “proceeding” that was enacted as part of the 1992 Amendments, there was no longer
any justification for having so many separate sets of rules governing intervenor
compensation. Thus, the CPUC, citing the unnecessary complexity of having multiple
sets of regulations, undertook a rules consolidation exercise in 1993, repealing the
PURPA Regulations and the OII 100 Regulations, and replacing the Article 5
Implementing Regulations with some brief language cross-referencing Article 5. (See
Cal.P.U.C. Ruling No. 84-12-028 (Dec. 16, 1992), attached as Appendix B to Interim
Opinion Issuing Proposed Rules to Govern Compensation of Intervenors in Commission
Proceedings (1993) 48 Cal.P.U.C.2d 389, 404–410 [1993 Cal.P.U.C. Lexis 163, pp. *15–
*23].)
       20
        Section 1801.3, subdivision (b), was added by amendment June 17, 1992.
(Assem. Bill 1975 as amended June 17, 1992.) This effort to encourage wide
                                          20
       The 1992 Amendments, especially when taken together with the broader history of
Article 5, appear to be inconsistent with New Cingular’s core position in this case,
resting, as it does, on the premise that there can be no “substantial contribution” to an
“order or decision” of the CPUC without a merits determination. The heart of New
Cingular’s argument, drawn from the statutory structure, is that Article 5 unfolds in a
logical progression, becoming increasingly specific, from generalized statements of
purpose in section 1801.3, to more specific language in section 1802, subdivision (i), to
even more specific language in section 1804, subdivisions (c) and (e), where the
references to “final order or decision” appear (§ 1804, italics added). But that mode of
interpretation begs the ultimate question here, since it tells us little about whether an
“order or decision” must be on the merits. It also assumes the Legislature intended
Article 5 to be a complete expression of every circumstance in which intervenor
compensation could be awarded, leaving for the CPUC only a narrow ministerial role in
applying the statutory language. The legislative history suggests otherwise, showing that,
from the beginning, when Article 5 was enacted in 1984, the Legislature contemplated a


participation in regulatory proceedings follows a modern trend in administrative law and
procedure to open regulatory process as broadly as possible to public input. (See
Mariano-Florentino Cuéllar, Rethinking Regulatory Democracy (2005) 57 Admin. L.
Rev. 411, 420 [In formal rulemaking proceedings, “agencies ordinarily provide notice of
proposed regulations, and members of the public have a limited right to take part in most
regulatory rulemaking proceedings. With few exceptions, the right belongs to the public
regardless of whether they are savvy lawyers for a chemical products company or
individual laypeople with no particular technical expertise.”].) A variety of new forms of
administrative proceeding began to surface across the country in the 1970s, including
participatory compensation programs, all of which were designed to encourage maximum
input into regulatory decisionmaking, creating new opportunities for a more diverse set of
voices to participate. (See Daniel Schwartz, Preventing Capture Through Consumer
Empowerment Programs: Some Evidence From Insurance Regulation, in Preventing
Regulatory Capture, Special Interest Influence and How to Limit It (Carpenter & Moss
edits., 2014) at p. 369 [“In recent years, lawmakers have experimented with cooperative
and participatory approaches to regulation that fall loosely under the heading of ‘new
governance,’ ” and which emphasize “flexible, participatory and collaborative
programs”].) The expression of intent in section 1803.1, subdivision (b), from its
inception has been in line with this trend.

                                              21
significant role for the CPUC in defining the scope and meaning of the intervenor
compensation rules, as applied. The enactment of section 1801.3, subdivision (b) as part
of the 1992 Amendments serves to confirm this legislative expectation.
       C.     Judicial Review of the CPUC’s Interpretation of Article 5

       We now turn to the scope of our own review of the agency decisions at issue in
this writ proceeding, focusing particularly on how much deference we should give to the
CPUC’s interpretation of its power to award intervenor compensation, as conferred upon
it in Article 5. Having satisfied ourselves that the TURN Award and the CforAT Award
are based on a reasonable construction of Article 5, the CPUC contends our task is
complete. According to the CPUC, the applicable standard of review is so narrow that
we should simply defer to its decisionmaking, without further inquiry, denying the writ
and leaving these awards undisturbed. Considerable deference is warranted, we agree,
but in our view, the applicable standard of review calls for a more searching inquiry than
the CPUC would have us apply, one that ultimately leads us to reject the CPUC’s stated
reasons for issuing the awards at issue here, while deferring to its overall conclusion that
TURN and CforAT are eligible for compensation.
              1.     The Applicable Standard of Review
       “[T]he [C]PUC is not an ordinary administrative agency, but a constitutional body
with broad legislative and judicial powers.” (Wise v. Pacific Gas & Electric Co. (1999)
77 Cal.App.4th 287, 300.) On judicial review, the CPUC’s decisions historically have
been generally presumed valid, not to be disturbed absent a manifest abuse of discretion
or unreasonable interpretation of the relevant statute, particularly on matters of
procedure. (See Greyhound Lines, Inc. v. Public Utilities Com. (1968) 68 Cal.2d 406,
410–411 (Greyhound); Southern Cal. Edison Co. v. Public Utilities Com. (2000) 85
Cal.App.4th 1086, 1096–1097.) “[W]hen no constitutional issue is presented, a [C]PUC
decision has the same standing as a judgment of the superior court: it is presumed correct,
and any party challenging the decision has the burden of proving that it suffers from
prejudicial error.” (Pacific Gas and Electric Co. v. Public Utilities Com. (2015) 237
Cal.App.4th 812, 838; see generally, City and County of San Francisco v. Public Utilities
                                             22
Com. (1985) 39 Cal.3d 523, 530; Southern California Edison Co. v. Public Utilities Com.
(2014) 227 Cal.App.4th 172, 185.) “Indeed, our Supreme Court has repeatedly called the
presumption in favor of the Commission’s decision a ‘strong’ one. (Greyhound [ , supra,
at p. 410] [‘There is a strong presumption in favor of the validity of the commission’s
decisions . . . .’]; Pacific Tel. & Tel. Co. v. Public Util. Com. (1965) 62 Cal.2d 634, 647
[‘strong presumption of the correctness of the findings . . . of the commission, which may
choose its own criteria or method of arriving at its decision’].)” (Pacific Gas and Electric
Co. v. Public Utilities Com., supra, at p. 838.)
       But the call for deference to agency decisionmaking is not uniformly compelling
in all circumstances. The final word on question of statutory interpretation always rests
with the judiciary. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal.4th 1, 7, 11 (Yamaha).) The rationale for deference is strongest when the challenged
action by the agency results from a rulemaking decision within the authority delegated to
the agency (id. at pp. 11–12), where the agency interprets one of its own regulations
(Pacific Gas and Electric Co. v. Public Utilities Com., supra, 237 Cal.App.4th at p. 840;
Utility Consumers’ Action Network v. Public Utilities Com. (2010) 187 Cal.App.4th 688,
697–698), or where the agency engages in fact-finding based on conflicting evidence
(Pacific Gas and Electric Co. v. Public Utilities Com., supra, at pp. 838–839). One basis
for challenging a CPUC decision is that the CPUC acted “without, or in excess of, its
powers or jurisdiction.” (§§1757, subd. (a)(1), 1757.1, subd. (a)(3).) Where the statute
subject to interpretation is one that defines the very scope of the CPUC’s jurisdiction,
Greyhound deference is not appropriate. (San Pablo Bay Pipeline Co., LLC v. Public
Utilities Com. (2015) 243 Cal.App.4th 295, 310; PG&E Corp. v. Public Utilities Com.
(2004) 118 Cal.App.4th 1174, 1194.) And the CPUC may not exercise its jurisdiction in
a manner inconsistent with other express provisions of the Public Utilities Code. (PG&E
Corp. v. Public Utilities Com., supra, 118 Cal.App.4th at pp. 1198–1199; see Carmel
Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 299–300.)
       Citing Greyhound and its progeny, the CPUC urges us to recognize the “ ‘strong
presumption’ ” that Greyhound sets up in its favor. Under the Greyhound test, the CPUC

                                             23
argues, “ ‘the [C]ommission’s interpretation of the Public Utilities Code should not be
disturbed unless it fails to bear a reasonable relation to statutory purposes and
language.’ ” (Greyhound, supra, 68 Cal.2d at p. 410.) New Cingular, on the other hand,
takes the position that the CPUC has acted in excess of its authority and argues that we
have an independent obligation to construe the statutory language under Yamaha, supra,
19 Cal.4th at page 11. We conclude New Cingular has the better of the argument on this
point. Because we are reviewing the CPUC’s interpretation of a statute that defines the
reach of its power to enter the awards under review, Yamaha, not Greyhound, governs the
applicable standard of review. It is not enough for the CPUC simply to demonstrate that
its proffered interpretation bears a reasonable relation to the language and purposes of
Article 5 under Greyhound. Since we are dealing with a set of “explicit, limited fee
rules” (Southern California Gas, supra, 38 Cal.3d at p. 68) enacted as part of a detailed
statutory scheme defining the CPUC’s jurisdiction in this area, 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. New Cingular is
therefore correct that Yamaha supplies the appropriate lens through which to evaluate this
case.21
                2.     The Yamaha Framework

          “Although balancing the necessary respect for an agency’s knowledge, expertise,
and constitutional office with the courts’ role as interpreter of laws can be a delicate
matter, familiar principles guide us.” (Gonzales v. Oregon (2006) 546 U.S. 243, 255.)
Under the Yamaha framework of analysis, “ ‘The standard for judicial review of agency
interpretation of law is the independent judgment of the court, giving deference to the


          21
         But see The Utility Reform Network v. Public Utilities Com. of State of Cal.
(2008) 166 Cal.App.4th 522, 533 (applying Greyhound test in writ proceedings
challenging CPUC’s interpretation of Article 5; statutory interpretation supporting denial
of intervenor compensation upheld without considering Yamaha); Southern California
Edison Co. v. Public Utilities Com. (2004) 117 Cal.App.4th 1039, 1050 (CPUC’s
statutory interpretation supporting grant of intervenor compensation upheld under
Greyhound test; no mention of Yamaha).
                                              24
determination of the agency appropriate to the circumstances of the agency action.’ ”
(Yamaha, supra, 19 Cal.4th at p. 8, italics in original.) Applying the directives of
Yamaha is a “nuanced” matter, calling upon us to evaluate the “contextual merit of [the
agency’s] interpretation, together with the rules of statutory construction.” (California
School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298, 1314–1315.)
       Conceptually, the Yamaha framework rests on “two classes of [administrative]
rules—quasi-legislative and interpretive . . . .” (Yamaha, supra, 19 Cal.4th at p. 10.)
“[B]ecause of their differing legal sources,” the rules in these two categories “command
significantly different degrees of deference by the courts.” (Ibid.) “One kind—quasi-
legislative rules—represents an authentic form of substantive lawmaking: Within its
jurisdiction, the agency has been delegated the Legislature’s lawmaking power.
[Citations.] Because agencies granted such substantive rulemaking power are truly
‘making law,’ their quasi-legislative rules have the dignity of statutes. When a court
assesses the validity of such rules, the scope of its review is narrow. If satisfied that the
rule in question lay within the lawmaking authority delegated by the Legislature, and that
it is reasonably necessary to implement the purpose of the statute, judicial review is at an
end.” (Id. at pp. 10–11.)
       At issue in Yamaha was a summary legal opinion, known as an “annotation,”
prepared by the legal staff of the State Board of Equalization (Board). In practice before
the Board, annotations are nothing but brief written statements—often only a sentence or
two—stating the tax consequences of specific hypothetical business transactions. The
practice of the Board was to provide annotations to taxpayers in response to requests for
legal opinions by the Board, by its field auditors, or by taxpayers. (Yamaha, supra, 19
Cal.4th at pp. 4–5.) In a taxpayer’s challenge to an assessment by the Board, the Court of
Appeal upheld the assessment, giving dispositive weight to an annotation that interpreted
section 6009.1 of the Revenue and Taxation Code. (Id. at pp. 5–6 & fn. 2.) The Supreme
Court reversed and remanded for further consideration on the ground that the Court of
Appeal had given too much weight to the annotation and had failed to apply its
independent interpretation of the statute. (Id. at p. 15.)

                                              25
       The specific legal issue presented in Yamaha concerned the applicable standard of
review for “interpretive” agency decisionmaking. “Unlike quasi-legislative rules, an
agency’s interpretation does not implicate the exercise of a delegated lawmaking power;
instead, it represents the agency’s view of the statute’s legal meaning and effect,
questions lying within the constitutional domain of the courts. But because the agency
will often be interpreting a statute within its administrative jurisdiction, it may possess
special familiarity with satellite legal and regulatory issues. It is this ‘expertise,’
expressed as an interpretation . . . , that is the source of the presumptive value of the
agency’s views. An important corollary of agency interpretations, however, is their
diminished power to bind. Because an interpretation is an agency’s legal opinion,
however ‘expert,’ rather than the exercise of a delegated legislative power to make law, it
commands a commensurably lesser degree of judicial deference.” (Yamaha, supra, 19
Cal.4th at p. 11.)
       On a question of interpretation, “ ‘the opinion of an administrative agency as to a
statute’s meaning may be helpful even if it is “not binding or necessarily even
authoritative.” ’ ” (Pacific Gas and Electric Co. v. Public Utilities Com., supra, 237
Cal.App.4th at pp. 851–852.) “Courts must, in short, independently judge the text of the
statute, taking into account and respecting the agency’s interpretation of its meaning, of
course, whether embodied in a formal rule or less formal representation. Where the
meaning and legal effect of a statute is the issue, an agency’s interpretation is one among
several tools available to the court. Depending on the context, it may be helpful,
enlightening, even convincing. It may sometimes be of little worth.” (Yamaha, supra, 19
Cal.4th at pp. 7–8.) Thus, courts may give weight to agency interpretations of statutes,
by degrees, ranging from respectful but minimal consideration, to great weight.
“Whether judicial deference to an agency’s interpretation is appropriate and, if so, its
extent—the ‘weight’ it should be given—is thus fundamentally situational. A court
assessing the value of an interpretation must consider a complex of factors material to the
substantive legal issue before it, the particular agency offering the interpretation, and the
comparative weight the factors ought in reason to command.” (Id. at p. 12.) Applying

                                               26
this “situational” test (id. at p. 12), the Yamaha court held that the Board’s annotations
were entitled to “ ‘some consideration,’ ” but not great weight (id. at p. 15).22
                3.     Yamaha as Clarified by Ramirez
          Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785 (Ramirez), added a key
refinement to the Yamaha framework. Concurring in Yamaha, Justice Mosk explained,
“There is an important qualification to the independent judgment/great weight standard
. . . when a court finds that the Legislature has delegated the task of interpreting or
elaborating on a statute to an administrative agency. A court may find that the
Legislature has intended to delegate this interpretive or gap-filling power when it
employs open-ended statutory language that an agency is authorized to apply or ‘when an
issue of interpretation is heavily freighted with policy choices which the agency is
empowered to make.’ ” (Yamaha, supra, 19 Cal.4th at p. 17 (conc. opn. of Mosk, J.),
italics in original.) Highlighting language from a footnote in Justice Brown’s opinion for
the majority in Yamaha, Justice Mosk emphasized that administrative decisionmaking
does not always fall “neatly into one category or the other . . . .” (Ibid; see id. at p. 6,
fn. 3.)
          Barely a year after Yamaha was decided, the California Supreme Court
unanimously adopted Justice Mosk’s clarifying qualification, explaining that because the
Yamaha framework is a “continuum,” some agency decisions will be hybrid in nature,
having “both quasi-legislative and interpretive characteristics, as when an administrative
agency exercises a legislatively delegated power to interpret key statutory terms”
(Ramirez, supra, 20 Cal.4th at p. 799, italics added), allowing it to “ ‘fill up the details’ of
a statutory scheme” (ibid.). Without resolving what standard of review applies to agency

          22
         The analytic framework established in Yamaha drew heavily from Justice
Jackson’s opinion for the United States Supreme Court in Skidmore v. Swift & Co. (1944)
323 U.S. 134, 140 (Skidmore), which presented an analogous scope of review question
under the federal Administrative Procedure Act. Skidmore, like Yamaha, involved an
agency position that was adopted without the statutory formalities of administrative
process that are typically used for decisionmaking intended to have the force of law (i.e.,
notice-and-comment rulemaking or on-the-record adjudicative decisionmaking). (Id. at
pp. 137–140.)
                                             27
decisions of this kind, Ramirez analyzed the decision under review there—a Wage Order
issued by the California Industrial Welfare Commission, defining a statutory term in
section 1171 of the Labor Code—as a hybrid decision, testing it under the standards
applicable to both quasi-legislative and interpretive decisions. (20 Cal.4th at pp. 799–
800.) The court ultimately upheld the Wage Order in question, finding, first, that it was
within the scope of authority conferred on the Industrial Welfare Commission by the
Legislature and was reasonably necessary to effectuate the purposes of Labor Code
section 1171, and, second, even treating the Wage Order as “a purely interpretive
regulation,” it was entitled to “considerable judicial deference” as an agency decision of
long standing that had been adopted formally by notice-and-comment procedures.23 (Id.
at pp. 800–801.)
       Whether a unitary standard of review applies to agency action with characteristics
of both quasi-legislative and interpretive decisionmaking, and if so, what that standard is,
has not yet been settled by the California Supreme Court. (See Western States Petroleum
Assn. v. Board of Equalization (2013) 57 Cal.4th 401, 437 (conc. & dis. opn. of Kennard,
J.) [“This court has not resolved what standard of review applies to such hybrid cases”],
italics in original.) But in the meantime, the courts of appeal have used the same two-
track approach that the Supreme Court used in Ramirez, analyzing such decisions under
the standards of review applicable to both. (See Diageo-Guinness USA, Inc. v. Board. of


       23
           Although the federal law of deference to agency interpretive decisionmaking has
diverged sharply from that of California in the years since Skidmore was decided (see
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837,
842–843), in recent years the United State Supreme Court has decided a series of cases
that revitalize Skidmore, applying it in much the same way Ramirez applies Yamaha.
(See U.S. v. Mead Corp. (2001) 533 U.S. 218, 237 [explaining that even in the absence of
an express general delegation of lawmaking power, “circumstances pointing to implicit
congressional delegation” to fill in gaps in a statutory scheme “present a particularly
insistent call for deference”]; Barnhart v. Walton (2002) 535 U.S. 212, 222 [“the
interstitial nature of the legal question, the related expertise of the Agency, the
importance of the question to administration of the statute, the complexity of that
administration, and the careful consideration the Agency has given the question over a
long period of time” all call for the highest level of deference].)
                                             28
Equalization (2012) 205 Cal.App.4th 907, 917–922 [regulations adopted by the Board of
Equalization defining the statutory term “distilled spirits” found to be both quasi-
legislative and interpretive; regulation invalidated]; Megrabian v. Saenz (2005) 130
Cal.App.4th 468, 477–487 [benefits eligibility decision by the California Department of
Social Services, embodied in its Manual of Policies and Procedures, found to be both
quasi-legislative and interpretive; agency decision upheld].) In this case, the first step of
the Ramirez test is easily satisfied, since the interpretive position the CPUC has taken is
broadly within the scope of authority conferred upon it by Article 5, as recognized in
Southern California Gas, and bears a reasonable relation to the purposes of Article 5.
The question remains, however, what weight the CPUC’s decision in this case should be
given, applying Yamaha with Ramirez in mind.
       D.     Application of Yamaha
       In evaluating the deference to be accorded agency decisionmaking under Yamaha,
we apply a group of interrelated “situational” factors that break down into two broad
categories (Yamaha, supra, 19 Cal.4th at pp. 11–13): first, those suggesting that the
agency may have some “comparative interpretive advantage” over courts in deciding the
issue in question (id. at pp. 11–12), and, second, those indicating that the interpretation in
question is “ ‘probably correct’ ” (id. at pp. 12–13).
       The comparative advantage criteria all focus on the substantive nature of the
interpretive issue decided by the agency. We look to whether “ ‘the agency has expertise
and technical knowledge, especially where the legal text to be interpreted is technical,
obscure, complex, open-ended, or entwined with issues of fact, policy, and discretion,’ ”
as for example when an agency is interpreting its own regulations, since it is “likely to be
intimately familiar with regulations it authored and sensitive to the practical implications
of one interpretation over another” (Yamaha, supra, 19 Cal.4th at p. 12). The likely-to-
be-correct criteria, by contrast, all focus on circumstantial evidence surrounding the
agency’s decision. Here, we look to whether there are indications of careful
consideration by senior agency officials (id. at p. 13), whether the agency “ ‘has
consistently maintained the interpretation in question, especially if [it] is long-standing’ ”

                                             29
(ibid.), whether the interpretation was contemporaneous with legislative enactment of the
statute being interpreted (ibid.), and whether the decision or rule in question was adopted
in accordance with the California Administrative Procedure Act, since that statute
requires formal process (e.g., notice-and-comment procedures for issuance of regulations)
“enhanc[ing] the accuracy and reliability of the administrative product” (ibid.).

              1.      The Position Taken By the CPUC Is Informed By Significant
                      Expertise, Is One Of Long Standing, and Existed At The Time Of
                      Article 5’s Enactment.

       Applying Yamaha’s “situational” factors on this record, three factors—agency
expertise, longevity of the CPUC’s interpretive position, and the contemporaneousness of
that position with enactment—appear to be most important, and they all cut in favor of
giving deference to CPUC’s interpretation. First, it seems undeniable that the CPUC has
considerable expertise relevant to its interpretation of Article 5, since the origin of the
“substantial contribution” test goes back to a set of regulations that the CPUC itself
adopted in 1980, and since the CPUC has decades of accumulated practical experience
applying iterations of that test. It also seems clear that when the Legislature enacted
Article 5, and then amended it significantly in 1992, it was building on top of the CPUC’s
administrative experience when it codified and refined the “substantial contribution” test.
       Second and third, the interpretive position taken by the CPUC in this case—at
least in its outcome, putting aside for now its reasoning—is one of long standing, so long-
standing, in fact, that it dates all the way back to Article 5’s enactment, and before. For
context here in particular, the statutory history must be kept in mind. Left unaddressed
explicitly in Article 5, even as amended in 1992, was a question brought into sharp focus
by the broadened definition of “proceeding” in section 1802, subsection (f) as revised:
What happens with fee eligibility when an intervenor participates extensively in
proceedings such as workshops, mediations, settlement conferences or any other of the
many forms of informal proceedings (coming into use in the early 1990s more and more
often, as Assemblywoman Moore pointed out) in which no one wins on the merits in the
conventional sense? Clearly, the Legislature contemplated that there would be fee
                                              30
eligibility in such proceedings, for that was why AB 1975 expressly included non-
traditional types of proceeding in the definition of “proceeding.” But other than that,
nothing in the amended language of Article 5 speaks to the issue directly. And while
there is no explicit answer to this question in the revised language of Article 5, by 1992
the Legislature was acting against a backdrop in which there was already a clear answer.
       The CPUC first answered the question in November 1981 in The Environmental
Defense Fund Requests Compensation for its Participation in SoCal Edison Co.’s
Application for a Certificate for the Harry Allen/Warner Valley Energy System (1981) 7
Cal.P.U.C.2d 75 [1981 Cal.P.U.C. Lexis 370] (Allen/Warner), the very case that led the
CPUC to promulgate the OII 100 Regulations. In Allen/Warner, PG&E, SoCal Edison
and several other utilities sought a certificate of public convenience and necessity to
operate a coal-fired power plant. The Environmental Defense Fund (EDF) participated
extensively in these certificate proceedings as an intervenor, but ultimately there was no
decision on the merits because the certificate application was abruptly withdrawn by the
utility proponents on the eve of the hearing. (Allen/Warner, supra, 1981 Cal.P.U.C.
Lexis 370, at pp. *8–*10.) Acknowledging that strict application of the “substantial
contribution” test required a showing that it had “adopted” some “factual contention(s),
legal contention(s), and/or specific recommendation(s)” of EDF in an “order or decision,”
the CPUC decided that an “exception” was warranted for the “unique circumstances” of
an unexpected, abrupt dismissal. (Allen/Warner, supra, 1981 Cal.P.U.C. Lexis 370, at
pp. *8, *46–*47, *61.) This exception—explained in Allen/Warner as a discretionary
rule, applicable as a matter of equity—was ultimately codified in rule 76.26 of the OII
100 Regulations, which provided that “In proceedings where some or all of the relief
sought by a participant is obtained without a Commission order or decision, the
participant may be entitled to compensation by clearly establishing a causal relationship
between its participation and such relief.” (1993 Cal. Code Regs., tit. 20, art. 18.6,
former § 76.26 (former rule 76.26), italics added.) 24

       24
         When the Legislature was considering enactment of Article 5, it was not only
aware of the pending Southern California Gas case, the uncertainty around the CPUC’s
                                          31
       Since Allen/Warner was decided in 1981, the CPUC has invoked its discretion to
award intervenor compensation many times in cases resolved without a decision on the
merits, in a wide variety of settings.25 Among these cases was a telecommunications


authority raised by CLAM, and the fact that the CPUC had adopted the OII 100
Regulations (see Section III.B.3, ante)—for all of that history led to the introduction of
SB 4—but there is also some indication it was specifically aware of the Allen/Warner
case. (See Legis. Analyst, analysis of Sen. Bill 4, as amended in Senate Apr. 7, 1983,
p. 2 [“Existing state law does not contain specific statutory authority for the commission
to award intervenor fees to advocates of residential consumer interests. The awarding of
such fees by the [C]PUC began following a 1979 California Supreme Court decision
authorizing the practice. The commission subsequently issued a decision in November
1981 which currently serves as the basis for [C]PUC awards of intervenor fees in most
proceedings. [¶] [T]his bill merely provides the [C]PUC with statutory authority for the
existing practice of awarding intervenor fees . . . .”], italics added.)
       25
          See, e.g., Opinion Awarding Compensation to TURN in Application of Southern
California Edison Company (March 21, 2002) Cal.P.U.C. Decision No. 02-03-034 page 4
<http://www.cpuc.ca.gov> [2000 Cal.P.U.C. Lexis 1106, p. *5] (“Where a party has
participated in settlement negotiations and endorses a settlement of some or all issues, the
Commission uses its judgment and the discretion conferred by the Legislature to assess
requests for intervenor compensation.”); Opinion on Request for Intervenor
Compensation in Application of Pacific Gas and Electric Company Submitting Electric
Rate Proposal for Direct Access Services Described in Decision 97-10-087, etc.
Cal.P.U.C. Decision No. 03-06-065 (June 19, 2003) at pages 6, 8
<http://www.cpuc.ca.gov> [1992 Cal.P.U.C. Lexis 1030, pp. *7–8, 10–11] (where utility
withdrew ratemaking case that had become moot due to supervening circumstances
caused by the energy crisis, the CPUC found that intervenor had substantially contributed
to the proceeding before the withdrawal) (hereafter Decision No. 03-06-065); Opinion
Granting Intervenor Compensation to the Utility Reform Network for Substantial
Contributions to Decision 05-06-040 (Dec. 15, 2005) Cal.P.U.C. Decision No. 05-12-
038 <http://www.cpuc.ca.gov> [2005 Cal.P.U.C. Lexis 534] (dismissal on mootness
grounds where proceeding initiated in 2001 became moot because, due to delay in
proceeding, information concerning rates for which increases sought had become stale);
Application of Southern California Edison Company (U 338-E) for Order Approving
Contracts to Secure Additional Capacity for System Reliability in SP-15 (June 15, 2006)
Cal.P.U.C. Decision No. 06-06-026, page 6 <http://www.cpuc.ca.gov> (where utility
withdrew its application of approval of new power purchase agreement because it
deemed scoping memorandum too limiting, ratepayer advocacy group awarded
compensation for its participation in the early stages of the proceeding because its filings
“provided useful, substantive articulation of its initial views, . . . thereby supplement[ing]
the preliminary record”).
                                             32
merger review proceeding more than a decade ago where the proposed merger was
withdrawn before any decision on the merits issued. (See Opinion on Requests for
Intervenor Compensation in Application 99-12-012 of MCI WorldCom, Inc. and Sprint
Corporation (July 17, 2002) Cal.P.U.C. Decision No. 02–07-030 [2002 Cal.P.U.C. Lexis
438] (MCI).) The CPUC has consistently ruled since 1981 that it has discretion to award
intervenor compensation in cases that end without a decision on the merits, but its
rationale has evolved over time. Prior to 1992, as illustrated by Allen/Warner itself, the
CPUC took the position that there is a discretionary “exception” to the requirement of
contribution to an “order or decision” based on vague notions of fairness and equity.26
Following the 1992 Amendments, as illustrated by MCI, the CPUC began to ground its
authority to award intervenor compensation in such cases on a textual reading of the
statutory definition of “substantial contribution,” supported by a policy rationale founded
expressly on section 1801.3. 27


       26
         See San Luis Obispo Mothers for Peace’s Request for Compensation in
Application of Pacific Gas and Electric Co., for Authorization to Establish a Rate
Adjustment Procedure for its Diablo Canyon Nuclear Power Plant etc, Decision No. 89-
03-063 (1989) 31 Cal.P.U.C.2d 402 [1989 Cal.P.U.C. Lexis 195, pp. *1, 4](San Luis
Obispo Mothers for Peace) (even though the CPUC did not adopt the position advocated
by intervenors in a proceeding that was resolved by settlement, the intervenors were
found to have substantially contributed because they “ ‘did much to focus our attention
on particular issues in the case’ ” through their attention to safety issues in their
evidentiary presentation and their cross-examination of witnesses.).
       27
          See Application of Southern California Edison Company for Approval of
Agreements to Sell Its Interests in Four Corners Generating Station and Palo Verde
Nuclear Generating Station (Mar. 21, 2002) Cal.P.U.C. Decision No. 02-03-035
<http://cpuc.ca.gov> (“Failing to award compensation in these circumstances . . . could
only chill participation by such groups in the public utility regulation process, an outcome
distinctly at odds with Pub. Util. Code § 1801.3(b).”); Opinion on TURN’s Request for
Intervenor Compensation in Application 99-03-014 of Pacific Gas and Electric Company
to Revise its Electrical Marginal Costs, Revenue Allocation and Rates at the End of the
Rate Freeze (May 8, 2003) Cal.P.U.C. Decision No. 03-05-029, pages 4, 6
<http://cpuc.ca.gov> (“Denying . . . any compensation in a proceeding that is prematurely
terminated for reasons that are not reasonably foreseen and are beyond [the intervenor’s]
control” unjustifiably increases the risk that intervenors will sustain unreimbursed costs
associated with public participation); Decision No. 03-06-065, supra, at page 8
                                              33
       MCI was a case much like this one, where the impact the intervenors had in an
aborted merger review proceeding was reflected in a series of procedural victories. In
finding that the intervenors had established that they made a “substantial contribution”
despite the withdrawal of the proposed merger and the dismissal of the proceeding on
mootness grounds, the CPUC explained: “A party may make a substantial contribution to
a decision in a number of ways. It may offer a factual or legal contention upon which the
Commission relies in making a decision, or it may advance a specific policy or
procedural recommendation that the ALJ or the Commission adopts. A substantial
contribution includes evidence or argument that supports part of the decision even if the
Commission does not adopt the party’s position in total. The Commission has provided
compensation even when the position [on the merits] advanced by the intervenor has
been rejected.” (MCI, supra, 2002 Cal.P.U.C. Lexis 438, at p. *13, citing San Luis
Obispo Mothers for Peace, supra, footnotes omitted.)
       From a policy standpoint, the CPUC explained, “the fact that the merger was
called off should not militate against an award of compensation. If we denied
compensation for substantial efforts on transactions that—through no fault of the
intervenor—were not consummated, we would discourage Intervenors such as TURN,
UCAN, and Greenlining/LIF from participating in such proceedings.” (MCI, supra, 2002
Cal.P.U.C. Lexis 438, at p. *13.). But the decision in MCI was not purely policy-based.
The CPUC anchored its reasoning directly in the statutory text, supporting its core
rationale—that an interim procedural contribution can be just as significant as a
substantive contribution on the merits, and that the final outcome of the proceeding does
not necessarily matter—with citations to the statutory definition of “substantial




(explaining that “we believe our interpretation of the statute accommodates unusual
circumstances not envisioned by the Legislature and advances the underlying purposes of
the intervenor compensation program,” and citing § 1801.3, subd. (b), which requires that
the statute “be administered in a manner that encourages the effective and efficient
participation” by all stakeholders).
                                            34
contribution.”28 MCI read this definitional language, in effect, as adopting its original
conception of the meaning of “substantial contribution”: “Decisionmaking is a process,”
the CPUC explained in its June 1980 Order Establishing PURPA Regulations, and
“[s]ubstantial contributions are made in many ways and at many times in the process.” (4
Cal.P.U.C.2d 3, 8 [1980 Cal.P.U.C. Lexis 636, *21–*22].)
              2.     The CPUC’s Interpretation of Article 5 Qualifies for
                     Treatment As “Hybrid” Agency Decisionmaking Under Ramirez
       Although the agency expertise, decisional longevity and contemporaneity with
enactment factors under Yamaha, by themselves, point toward giving the CPUC’s
decisionmaking something more than minimal deference, Ramirez further tips the
Yamaha calculus in the CPUC’s favor. The awards at issue here, in our view, qualify for
treatment as “hybrid” decisions where the CPUC was called upon to interpret a statute
using a mixture of policy-making and conventional legal analysis. Our review of the
statutory history gives us ample reason to conclude that the Legislature not only agreed
with the CPUC’s view that intervenor compensation may be awarded on a discretionary
basis in cases that resolve short of a decision on the merits, but more than that, delegated
to the CPUC the authority to “fill in gaps” in Article 5 in the course of administering it
based on express policy guidance in the statute. In enacting Article 5 in 1984, the
Legislature confirmed the CPUC’s power to address intervenor compensation on its own,

       28
          (See MCI, supra, 2002 Cal.P.U.C. Lexis 438, at p. *12, fns. 6–9, citing former
§ 1802, subd. (h), now renumbered subd. (i); Opinion on TURN’s Request for Intervenor
Compensation in Application 00-01-009 of Southern Cal. Edison (Aug. 22, 2002)
Cal.P.U.C. Decision No. 02-08-061 at pp. 3, 5, 7 <http://cpuc.ca.gov> [where CPUC
merely adopted a procedural recommendation by intervenor, the CPUC awarded
compensation, citing § 1802, former subd. (h), now subd. (i)].) Contrary to New
Cingular’s suggestions that allowing intervenor compensation without any showing of a
contribution to an “order or decision” on the merits would give the PUC “unfettered”
discretion to reward intervenors for minimal participation, the CPUC long ago appears to
have rejected the idea that it should adopt a standard under which compensation is
available for nothing more than “good faith participation” in its proceedings, untethered
to the plain terms of the statute requiring a contribution to some “order or decision.”
(Order Instituting Rulemaking on the Commission’s Intervenor Compensation Program
(1998) 79 Cal.P.U.C.2d 628 [1998 Cal.P.U.C. Lexis 429, at pp. *70–*72].)
                                             35
and then, in 1992, gave the CPUC explicit policy criteria in section 1801.3, subdivision
(b) to guide Article 5’s administration. In light of this history, we conclude that the
Legislature has expressly conferred power on the CPUC to “ ‘fill up the details’ ” of the
statutory scheme. (Ramirez, supra, 20 Cal.4th at p. 799.)
       The Department of Insurance administers a statutory intervenor compensation
program under a statutory scheme analogous to Article 5, and in turning back a challenge
to an interpretation of that scheme by the Department of Insurance—a challenge
strikingly similar to the one mounted in this case—the Court of Appeal recognized the
Insurance Commissioner’s delegated “gap-filling” power. That case, Association of
California Ins. Cos. v. Poizner (2009) 180 Cal.App.4th 1029 (Poizner), involved section
1861.10 of the Insurance Code, which, like Article 5, allows awards of compensation to
intervenors who make a “substantial contribution” to “the adoption of any order,
regulation or decision” in covered regulatory proceedings. The Insurance Commissioner
issued regulations permitting awards of compensation in proceedings resolved by
settlement “where there is no hearing on the merits.” The Court of Appeal rejected an
argument from a group of insurers that these regulations exceeded the Commissioner’s
statutory authority. “[N]ot all details of the administrative rate review process are
‘established’ by the statutes,” the Court of Appeal explained. (Poizner, supra, at
p. 1048.) “Many procedures and details were necessarily left to regulations and rules to
be promulgated by the Commissioner.” (Id. at p. 1049.) “[T]he absence of specific
statutory provisions . . . relating to the resolution of a rate application without a public
hearing, as, for example, by way of a settlement, does not mean that regulations
permitting such resolution exceed statutory authority, but only that the electorate deferred
to and relied upon the expertise of the Commissioner as to such matters.” (Id. at p.
1053.) We reach the same conclusion as to Article 5 and the CPUC’s role in
implementing it.29


       29
           In a different context, somewhat further removed from this case than Poizner,
but still illuminating, courts have addressed a similarly vexing statutory omission in the
context of prevailing party fee award statutes, and have come up with a solution that is
                                              36
       New Cingular sought to distinguish Poizner at oral argument on the ground that,
there, the Department of Insurance carried out its gap-filling power by regulation. We
find that distinction to be immaterial. It is true that in cases giving agency interpretive
decisionmaking great weight under Yamaha, notice-and-comment rulemaking is often
involved. (See California Building Industry Assn. v. Bay Area Air Quality Management
Dist. (2015) 62 Cal.4th 369, 390 [finding deference warranted under Yamaha to an
agency interpretation adopted by regulation and observing that notice-and-comment
rulemaking under the California Administrative Procedure Act “subjects potential
agency interpretations to procedural safeguards that foster accuracy and reliability”].)
But we need not decide whether formal, on-the-record adjudicative decisionmaking—
which is what we have here, in the form of a published, reasoned opinion—may be
viewed as equivalent to notice-and-comment rulemaking for purposes of Yamaha’s
“situational factors.” Ramirez presents a related but slightly different question. Under
Ramirez, the issue is whether the Legislature intended to confer gap-filling authority.
Here, we find not only that it did, but that both the Legislature and the CPUC recognized
there was no need for further, formal rulemaking to establish a regime for intervenor
compensation in CPUC proceedings. Because the purpose of Article 5 was to reinforce

not unlike the one the CPUC and the Insurance Commissioner have adopted. The issue
whether a defendant may recover attorney’s fees under prevailing party fee award statutes
where the plaintiff seeks voluntary dismissal prior to a decision on the merits is a familiar
one in civil litigation, but it is also one frequently overlooked by the Legislature. (See
Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 102 [“The vast majority of attorney’s
fee statutes do not explicitly provide for the event of a voluntary dismissal.”].) While
historically the term “prevailing party” was construed in such statutes to mean the
defendant must win a judgment on the merits (see, e.g., International Industries, Inc. v.
Olen (1978) 21 Cal.3d 218, 222, 225, the modern trend of authority allows such a
showing even in the absence of a judgment on the merits (see, e.g., Salehi v. Surfside III
Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1156). Even where the
governing fee statute is mandatory on its face—providing that an award of fees “shall” be
made to the “prevailing party”—it is within the trial court’s discretion to award or deny
fees in a voluntary dismissal scenario on a pragmatic basis. (See, e.g., Santisas v. Goodin
(1998) 17 Cal.4th 599, 621–622; Heather Farms Homeowners Assn. v. Robinson (1994)
21 Cal.App.4th 1568, 1573–1574; Winick Corp. v. Safeco Insurance Co. (1986) 187
Cal.App.3d 1502, 1507–1508.)
                                              37
and then supplant the CPUC’s previously issued regulations governing case-by-case
adjudication of entitlement to intervenor compensation,30 the Legislature appears to have
contemplated that case-by-case decisionmaking by the CPUC would be the mode of
administratively implementing Article 5.
       E.       The Correct Construction of Article 5, Giving Considerable Deference
                To The Legal Result The CPUC Reached, But Not To Its Reasoning
       Although the awards to TURN and CforAT are entitled to considerable deference,
the bottom line under both Yamaha and Ramirez is that, even when an agency is to be
given wide-berth in interpreting a statute, we defer only to the extent we are prepared to
accept “ ‘the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power
to control.’ ” (Yamaha, supra, 19 Cal.4th at pp. 14–15, quoting Skidmore, supra, 323
U.S. at p. 140, italics omitted.) In this case, the CPUC’s explanation of the legal basis for
the awards at issue falls short when measured against that bottom-line standard. To begin
with, the Final Decision and Order framed its intervenor compensation eligibility
determination in terms so broad as to suggest that compensation was due simply as an
“acknowledgment” of participation in Docket No. I11-06-009, without any consideration
given to the statutory requisites for awarding compensation. Then, when the CPUC did
address those statutory requisites in its final order, the Rehearing Decision, its reasoning
departed materially from the rationale we see in the long line of prior CPUC decisions
awarding intervenor compensation in cases resolved without a decision on the merits,
which tends to undermine one of the key factors calling for deference in this case—the
longevity and enduring consistency of the agency interpretive position under review.
       As we construe Article 5, so long as the advocacy of an intervenor claiming
compensation contributes to a CPUC proceeding by “assist[ing] the commission in the
making of” any “order or decision” (§ 1802, subd. (i)) and that “order or decision” is part
of the “final” resolution of the proceeding (§ 1804, subds. (c) & (e))—whether or not the
proceeding is resolved on the merits—then the CPUC may “determine[]” whether in its

       30
            Over time, that is what eventually happened. (See fn. 19, ante.)
                                              38
“judgment” (§§ 1801.3, subd. (d), 1802, subd. (i)), the intervenor’s contribution was
“substantial” enough to merit an award of compensation (§ 1803, subd. (a)). In this case,
having made a properly supported finding that some position taken by TURN or CforAT
was adopted in one or more of the many preliminary “order[s] or decision[s]” it affirmed
as part of its final disposition of Docket No. I11-06-009, it was within the CPUC’s
discretion to conclude that the “substantial contribution” test was met. But that discretion
was not unlimited. It was properly exercised only within the confines of Article 5, while
respecting the limits of the statutory scheme. Here, for example, to the extent the awards
to TURN and CforAT were made based upon interim “procedural recommendations” or
for adoption of a contention only “in part,” section 1802, subdivision (i) plainly limited
the awardable compensation to “all reasonable advocate’s fees, reasonable expert fees,
and other reasonable costs incurred by the customer in preparing or presenting that
contention or recommendation.” (Italics added.)
       The CPUC appears to agree with this reading of Article 5—certainly its extensive
history of administrative decisionmaking in non-merits intervenor compensation cases, at
least prior to this case, suggests it is in agreement—but we cannot be sure, for the
reasoning it employed here pays insufficient heed to the statutory text. Rather than
anchor its rationale in its own factual findings and show how those findings fit into the
statutory language, the Rehearing Decision identifies a “conflict” between section
1801.3, subdivision (b) (the Legislature’s directive that the CPUC administer Article 5 to
promote wide participation in its regulatory proceedings by all stakeholders) and section
1802, subdivision (i) (the definition of “substantial contribution”) and then announces
that, to avoid “absurd consequences,” New Cingular’s “overly literal” interpretation of
section 1802, subdivision (i) must be rejected in the name of harmonization. (Rehearing
Decision at p. 6). The Rehearing Decision goes on to cite ten prior CPUC cases similar
to MCI (id. at pp. 7–8 & fn. 8), but nothing in any of those decisions mentions any
“conflict” between section 1801.3, subdivision (b), and section 1802, subdivision (i).
Indeed, the CPUC seems to acknowledge as much. (Id. at p. 8 [stating that the reasoning
in such cases was not “specifically stated as harmonizing”].)

                                             39
       Based on the CPUC’s detailed factual findings and our own reading of Article 5 in
light of the statutory history, we are convinced the CPUC was correct to conclude that
TURN and CforAT are eligible for intervenor compensation. But we are equally
convinced that the legal path it took to justify the awards at issue here is unsustainable.
Though we do not find New Cingular’s reading of Article 5 to be persuasive either, we
cannot say that the result it advocates is in any way “absurd.” Nor do we discern a
genuine “conflict” between section 1801.3, subdivision (b), and section 1802, subdivision
(i). If the mode of harmonizing construction that the CPUC relied on here were valid,
virtually any broad statement of intent or purpose in a statute could be used as a roving
warrant to nullify more specific statutory limitations that follow. While New Cingular
rightly criticizes this interpretive approach for violating several elementary canons of
statutory construction, our main concern is that, as applied here, it produces a range of
discretion going well beyond anything claimed in MCI or other prior administrative
decisions since 1992. Correctly analyzed, the statutory construction issue in this case has
nothing to do with any need to reconcile internal conflicts within Article 5. We are
simply dealing with a “gap” in the statutory language, a stray detail left unaddressed by
the Legislature in explicit terms. Framing the analysis narrowly as a gap-filling problem
is crucial, for that way of looking at the issue produces discretion that is interstitial in
nature, always confined to operating within the boundaries of the gap to be filled.
       “Since ‘an agency’s order must be upheld, if at all, “on the same basis articulated
in the order by the agency itself ” ’ ” (Pacific Gas and Electric Co. v. Public Utilities
Com. (2000) 85 Cal.App.4th 86, 96; see Securities and Exchange Commission v. Chenery
Corp. (1947) 332 U.S. 194, 196), we will set aside the challenged awards in this case,
without prejudice to reinstatement after further consideration by the CPUC in view of this
opinion. At oral argument, New Cingular’s counsel suggested that, if the only basis to
award compensation here was for work done on minor matters such as obtaining
extensions of time to file pleadings, the amounts awarded could never have been justified
and should have been far less. We express no view on that issue, except to note that,
because of the breadth of the legal rationale the CPUC relied upon to justify its exercise

                                               40
of discretion, we cannot tell whether the CPUC considered whether the amounts awarded
to TURN and CforAT were reasonable approximations of the fees and costs incurred “in
preparing or presenting [the] contention[s] or recommendation[s]” for which these
intervenors were credited. (§ 1802, subdivision (i).)
                                  IV.    CONCLUSION
       We decline to adopt the interpretation of Article 5 proffered by New Cingular in
this case. For many decades, the CPUC has taken the position it has discretion to award
intervenor compensation in proceedings that end without a decision on the merits, and the
awards to TURN and CforAT here are consistent with that long-standing position. More
importantly, however, the awards are consistent with the text of Article 5 and with our
reading of legislative intent. Indeed, we find abundant evidence in the history and pre-
history of Article 5 showing that this particular statutory scheme has been built, in effect,
on a shared enterprise between the Legislature and the CPUC, with the CPUC having
delegated authority under section 1801.3, subdivision (b), to flesh out lacunae in the
statutory language, incrementally, when called upon to do so in the course of
implementing the overall statutory scheme. Denying the CPUC the role envisioned for it
in this enterprise would do just as much violence to the integrity of Article 5 as
misapplying its plain terms. Still, despite what appears to be ample support in the record
for the compensation awards to TURN and CforAT, we cannot accept the legal rationale
relied upon by the CPUC in the orders under review, and thus we will vacate the TURN
Award, the CforAT Award, and the Rehearing Decision without prejudice to renewal of
requests for fees and costs by those intervenors, and redetermination of awards to them
consistent with this opinion.
                                  V.      DISPOSITION
       The TURN Award and the CforAT Award are vacated, as is the Rehearing
Decision, without prejudice to reinstatement of the awards, in the same or different
amounts, on grounds consistent with this opinion. Except as so ordered, New Cingular’s
petition for a writ of review is denied. The parties shall bear their own costs.


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                                             _________________________
                                             Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




A144005/New Cingular Wireless v. Public Utilities Com.
                                        42
New Cingular Wireless v. Public Utilities Com. (A144005)


Original Proceedings in writ review of California Public Utilities Commission
     Decisions 13-05-031, 14-06-026, 14-12-085 (Investigation No. 11-06-009).

Attorneys:
Mayer Brown, J. Tyson Covey, Hans J. Germann; AT&T Services, Inc., J. Scott Paisley,
      David P. Discher, Niki B. Okcu for Petitioners.

California Public Utilities Commission, Karen V. Clopton, Helen W. Yee, Maria
       Bondonno for Respondent.

The Utility Reform Network, Robert Finkelstein and Christine Mailloux; Center for
      Accessible Technology, Melissa W. Kasnitz for Real Parties in Interest.




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