March 25, 2019

Colorado Court of Appeals: Public Utilities Commission has Exclusive Jurisdiction Over Claims for Enforcement of Tariffs

The Colorado Court of Appeals issued its opinion in Development Recovery Co., LLC v. Public Service Co. of Colorado on Thursday, June 15, 2017.

Public Utility—Subject Matter Jurisdiction—Enforcement of Tariffs—Common Law Claims.

The Public Service Company of Colorado, d/b/a Xcel Energy Co. (Xcel), is a utility company regulated by the Colorado Public Utilities Commission (PUC). Development Recovery Company, LLC (DRC) was the assignee of claims from real estate developers who entered into extension agreements (agreements) with Xcel for the construction of distribution facilities to provide gas or electric service for homes in new developments. The agreements specified that they were governed by the PUC’s rules and regulations and referred several times to Xcel’s extension policies. The extension policies on file with the PUC are referred to as tariffs and provide that extension contracts are based on the estimate of the cost to construct and install the necessary facilities to provide the requested service. The tariffs explain in detail how construction costs and payments are to be handled.

DRC filed a complaint against Xcel alleging various common law claims and violation of C.R.S. § 40-7-102, related to an unspecified number of agreements between developers and Xcel over the course of 18 years. Xcel moved to dismiss, arguing that this matter was within the exclusive jurisdiction of the PUC or, alternatively, if the PUC did not have exclusive jurisdiction, the court should nevertheless refer the matter to the PUC under the primary jurisdiction doctrine. The district court agreed with Xcel on both grounds and dismissed the complaint.

On appeal, DRC argued that the district court has exclusive subject matter jurisdiction over DRC’s common law claims, asserting that the trial court erred in concluding that the substance of its claims is merely the enforcement of tariffs. The court of appeals noted that the PUC has exclusive jurisdiction in its constituted field, including enforcement of tariffs. The court concluded that all of DRC’s claims substantively involved enforcement of the tariffs (essentially, how costs were to be calculated and paid). Further, even if DRC has a cause of action under C.R.S. § 40-7-102, exhaustion of administrative remedies before the PUC is required.

DRC also asserted that the district court must have jurisdiction because only it can award the relief sought. DRC cannot confer subject matter jurisdiction on the district court simply by requesting relief in the form of damages. Further, the PUC has authority to order reparations where excessive charges have been collected by a public utility for a product or service, which is a potential remedy in this case.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Public Utilities Commission Properly Imposed Tariff After Billing Error

The Colorado Supreme Court issued its opinion in Carestream Health, Inc. v. Colorado Public Utilities Commission on Monday, June 19, 2017.

Public Utilities—Tariffs—Standing—Injury-in-Fact.

In this appeal, the supreme court considered two issues from the district court’s review of a decision of the Colorado Public Utilities Commission. Both issues pertain to a billing error that led Public Service Company of Colorado to undercharge Carestream Health, Inc. for gas it received over the course of a three-year period. The first issue is whether the Commission properly interpreted Public Service’s tariff, specifically the requirement to “exercise all reasonable means” to prevent billing errors. The court concluded that determining what means are “reasonable,” as that term is used in the tariff, necessarily requires considering what errors are foreseeable. The court therefore held that the Commission properly interpreted the tariff and acted pursuant to its authority. The second issue is whether Carestream had standing to challenge Public Service’s use of its tariff to recover a portion of the undercharge from its general customer base. Because Carestream suffered no injury from that action, it lacks standing to challenge it. The court accordingly affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Frances Koncilja Appointed to Public Utilities Commission

On Tuesday, January 5, 2016, Governor Hickenlooper announced his appointment of Frances Koncilja to the Colorado Public Utilities Commission (PUC), effective January 12, 2016, and expiring in 2020. The PUC provides regulatory oversight of Colorado’s public utilities, including electricity, natural gas, heating utilities, drinking water, transportation, and telecommunications. The PUC consists of three commissioners who are appointed by the governor and confirmed by the Senate.

Ms. Koncilja is currently the principal of Koncilja Law Firm, P.C., where she represents both plaintiffs and defendants in commercial litigation. She also represents parties in class action disputes. She began her career as a public defender in 1972 and later served as an Assistant United States Attorney. She received her undergraduate degree from the University of Southern Colorado and her law degree from the University of Colorado.

For more information about the appointment, click here.

Colorado Supreme Court: Record Did Not Contain Statutorily Required Findings Necessary for Denial of Application

The Colorado Supreme Court issued its opinion in Mile High Cab, Inc. v. Colorado Public Utilities Commission on Monday, April 22, 2013.

Administrative Law—Burdens of Proof—Preponderance of Evidence—CRS § 40-10.1-203.

Mile High Cab, Inc. (Mile High) appealed the district court’s judgment affirming the denial of its application for a Certificate of Public Convenience and Necessity. After a lengthy hearing, the administrative law judge (ALJ) to whom the application had been assigned issued a recommended decision, finding that the several incumbent carriers opposing the application had proved by a preponderance of the evidencethat public convenience and necessity did not require granting the application, and that the issuance of the certificate would be detrimental to the public interest. Although it initially ordered a remand for further evidence, the Colorado Public Utilities Commission (PUC) ultimately granted the intervening carriers’ motions for reconsideration and adopted the ALJ’s recommendation to deny the application. The district court affirmed Mile High’s petition for judicial review.

The Supreme Court reversed the district court’s judgment and remanded the case with directions to return the matter to the PUC for further action. The Court held that the record did not clearly contain the finding statutorily required for a denial of Mile High’s application, and that the issuance of a certificate would actually be detrimental to the public interest.

Summary and full case available here.

HB 13-1027: Requiring Public Utilities Commission Director to Report Annually on Rate Actions

On January 9, 2013, Rep. Kathleen Conti introduced HB 13-1027 – Concerning an Increase in the Transparency of Proceedings Before the Public Utilities Commission by Requiring the Director of the Commission to Report Annually to the General Assembly Regarding Matters Discussed on the Record in Energy Rate Cases.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the director of the public utilities commission (PUC) or the director’s designee to report annually to the joint house and senate transportation committees regarding matters discussed on the record in energy rate case hearings that were decided by the commission during the immediately preceding two years.

For all rate cases included in the report, the bill directs the commission to estimate the economic impact of the rates involved, including the average increase or decrease in ratepayers’ monthly bills. On Feb. 1, the Appropriations Committee approved the bill and sent it to the full House for consideration on 2nd Reading.

Since this summary, the bill passed Second Reading in the House with amendments.

Colorado Supreme Court: PUC Considered All Mandated Factors in Setting Rates for Basic Residential Phone Service with Evidence to Support Decision

The Colorado Supreme Court issued its opinion in Colorado Office of Consumer Counsel v. Colorado Public Utilities Commission on April 30, 2012.

Basic Residential Telephone Service Regulation—Maximum Rate Setting.

The Supreme Court reversed the district court’s judgment, holding that the Colorado Public Utilities Commission (PUC) regularly pursued its authority in setting maximum rates for basic residential telephone service pursuant to CRS § 40-15-502(3)(b). The PUC considered all of the statutorily mandated factors in setting the rates and there was substantial evidence supporting its decision.

Summary and full case available here.

Colorado Supreme Court: Initial Failure to File Review of PUC Actions in Proper Venue Did Not Deprive Court of Jurisdiction to Grant Venue Transfer

The Colorado Supreme Court issued its opinion in In re Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission on April 23, 2012.

CRS § 40-6-115(5)—“Commenced and Tried”—Remedy for Improper Venue is Transfer to Proper Venue.

The Associated Governments of Northwest Colorado (AGNC) filed a petition for judicial review in Routt County District Court, seeking judicial review of a decision by the Colorado Public Utilities Commission (PUC). Pursuant to CRS § 40-6-115(5), such petitions must be commenced and tried in district court either in the county where the petitioning corporation has its principal office or place of business, or in Denver District Court. In this case, the Routt County District Court found that AGNC’s principal office or place of business was in Garfield County, not Routt County. The court ordered that AGNC be permitted to transfer the case to Garfield County or Denver District Court. AGNC chose Denver District Court.

PUC petitioned the Supreme Court, under C.A.R. 21, for a rule to show cause why the case should not be dismissed rather than transferred. The Court issued the rule to show cause, and now discharged the rule. The Court held that CRS § 40-6-115(5), which enumerates the counties where a petition for review of PUC actions shall be commenced and tried, sets a venue requirement. The requirement is procedural, not substantive. AGNC’s initial failure to file in a proper venue did not deprive the Routt County District Court of jurisdiction to grant a venue transfer motion. Instead, the statute allows the Routt County District Court to transfer this case to the Denver District Court.

Summary and full case available here.

HB 12-1258: Clarifying that Sellers of Electricity for Alternative Fuel Vehicles Are Not Public Utilities

On February 7, 2012, Rep. Brian DelGrosso and Sen. Cheri Jahn introduced HB 12-1258 – Concerning Regulation of Public Utilities in Terms of Alternative Fuel Vehicles. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill specifies that sellers of electricity as fuel for alternative fuel vehicles are not regulated as public utilities. Generating electricity for sale as fuel for alternative fuel vehicles also does not make the seller subject to regulation as a public utility if the seller generates the electricity on the property where the fueling facilities are located and the electricity is generated from a renewable resource.

Public utilities must make commercially reasonable efforts to provide connection of electric and natural gas service to alternative fuel vehicle charging facilities. A public utility’s right to make unregulated operating expenditures and investments via an unregulated subsidiary with regard to alternative fuel vehicle charging facilities is not limited. On March 15 the Transportation Committee amended the bill and moved it to the full Senate for consideration on 2nd Reading.

Since this summary, the bill was laid over daily for Second Reading on March 20.

Summaries of other featured bills can be found here.

HB 12-1172: Allowing Public Utilities Commission to Impute Federal Carbon Tax to Electric Utility

On January 20, 2012, Rep. Spencer Swalm introduced HB 12-1172 – Concerning the Rates Charged to Consumers for Electricity, and, in Connection Therewith, Prohibiting the Imputation of Certain Costs Associated with Reductions in Greenhouse Gas Emissions. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The 2004 voter initiative known as “Amendment 37” committed Colorado to a policy of increasing the portion of the state’s electricity generated from renewable sources. Subsequent legislation allows the Colorado public utilities commission (PUC) to impute the cost of a carbon tax imposed at the federal level when calculating an electric utility’s investments and comparing the cost of maintaining existing infrastructure with the cost of replacing existing power plants with more energy-efficient power plants.

The bill conditions the PUC’s imputation of the carbon tax on the actual adoption of a carbon tax as part of federal law. The bill prohibits an investor-owned electric utility from charging residential customers tiered rates according to their monthly consumption. On February 15, the Agriculture, Livestock, & Natural Resources committee amended the bill and referred it to the full House for consideration on 2nd Reading.

Since this summary, the bill passed the Second Reading with amendments and passed the Third Reading in the House.

Summaries of other featured bills can be found here.