Commission Should Reverse Its Decision That Denies Procedures to Ensure Residential Customers Have a Voice, People’s Counsel Says
BALTIMORE – The Public Service Commission should reverse its decision denying a petition to establish written rules that ensure the Commission considers and rules on the merits of residential customers’ requests, the Office of People’s Counsel said in a filing today. The filing argues that the Commission’s denial of OPC’s petition contains legal errors and harms consumers by allowing the Commission to indefinitely or permanently ignore matters that OPC raises to protect residential customers—for arbitrary, non-transparent reasons.
“What OPC has requested requires nothing more than consideration of appropriate processes to make sure residential customers are heard on the merits,” People’s Counsel David S. Lapp said. “The Commission obviously has broad discretion to control its docket. We’re only asking for minimal procedures so that our requests for Commission action cannot be arbitrarily put on the shelf, indefinitely or permanently.”
According to OPC’s filing, one error in the decision is its disregard for the General Assembly’s recognition of the unique position of residential customers in utility regulation. Residential customers pay the largest share of the more than $10 billion in annual utility revenues subject to Commission approval, but, as individuals, they have the least incentive and the fewest resources to protect their interests in Commission proceedings.
The General Assembly recognized that residential utility customer interests will not be adequately protected if residential customers cannot investigate and request the Commission to initiate proceedings necessary to protect their interests. It thus created the Office of People’s Counsel and mandated that OPC investigate and request proceedings to protect residential customer interests.
As the statutory protector of residential customers, it is OPC’s responsibility to raise matters before the Commission, but that statutory responsibility is meaningless—and residential customers’ rights are denied—if Commission procedures allow it to arbitrarily disregard OPC’s requests in order to avoid a merits‑based decision. The Commission’s decision errs by disregarding OPC’s unique statutory responsibility and equating residential customer interests with other stakeholders—including the utility monopolies, from which residential customers need protection and which have vast resources to participate in Commission proceedings.
A second error is the decision’s failure to address the very point of OPC’s petition—the lack of Commission procedures to ensure OPC’s requests for Commission action are addressed timely on their merits. The Commission addressed the examples OPC used in its petition to illustrate procedural gaps, but without addressing the process issues.
An example is OPC’s petition for a gas planning proceeding on which the Commission took no action for more than four months—until today, when it provided four more months for comments on the petition. The decision denying procedures states that the Commission did not act on the gas planning proceeding request because it would “significantly curtail the discretion of Maryland’s gas utilities to replace and expand their infrastructure to meet the needs of existing and projected new customers.” The decision suggests that the Commission ignored OPC’s petition for months because it disagreed with its substance. Rather than issuing an order that would have to explain why OPC’s gas planning petition is wrong, the decision indicates the Commission simply chose not to address it. That is the epitome of arbitrary agency action and should be addressed with written procedural rules.
A third error in the decision, OPC’s filing explains, is its failure to address the transparency problem created by the lack of Commission procedures. Under the Commission’s practice, the opening of a docket triggers a statutory prohibition on “ex parte” communications between parties and commissioners. The failure to timely docket OPC’s requests thus unfairly allows regulated entities to have private discussions with commissioners on the merits of OPC’s requests.
The Commission’s decision was a 4-1 decision, with Commissioner Michael T. Richard dissenting. One of the three commissioners in the majority has since left the Commission and two others in the majority will be departing in the coming weeks.
The Maryland Office of People’s Counsel is an independent state agency that represents Maryland’s residential consumers of electric, natural gas, telecommunications, private water and certain transportation matters before the Public Service Commission, federal regulatory agencies and the courts.
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