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08/23/93 OFFICE PEOPLE'S COUNSEL DISTRICT COLUMBIA

August 23, 1993

OFFICE OF THE PEOPLE'S COUNSEL OF THE DISTRICT OF COLUMBIA, PETITIONER
v.
PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA, RESPONDENT. POTOMAC ELECTRIC POWER COMPANY, INTERVENOR



Before Rogers, Chief Judge, Ferren, Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : The Office of People's Counsel (OPC) seeks reversal of a final order of the Public Service Commission of the District of Columbia (PSC) issued in Formal Case No. 912. Order No. 10044, issued on June 26, 1992, authorized intervenor, Potomac Electric Power Company (PEPCO), to increase its rates. OPC and the District of Columbia government filed applications for reconsideration of this order, which the PSC denied in Order No. 10080, issued on August 20, 1992. In this court, OPC contends that the PSC, in issuing Order No. 10044, did not properly include the Advisory Neighborhood Commissions (ANCs) in its ratemaking process, as mandated by D.C. Code § 1-261 (1992 Repl. & 1993 Supp.). OPC also contends that the PSC failed to comply with the statutory mandate of § 1-261 (d), directing the PSC to give "great weight" to the advice it actually received from ANCs and from individual Advisory Neighborhood Commissioners (ANC Commissioners). We affirm.

I.

On December 5, 1991, PEPCO submitted an application to the PSC, requesting an annual retail rate increase of $54,090,000. The PSC convened a prehearing conference on January 3, 1992, to clarify the issues. On January 15, 1992, the PSC issued Order No. 9921, designating 33 issues for review and establishing a procedural schedule. In accordance with this schedule, the parties, including various intervenors, submitted written testimony and filed briefs.

The PSC conducted six days of formal evidentiary hearings on May 4, 5, 7, 8, 11, and 12, 1992. In addition, the PSC also held community hearings on April 25, May 6, and May 14, 1992. Of the 44 witnesses who spoke during the three community meetings, eleven were ANC Commissioners. In addition, three other ANC Commissioners submitted written statements, two expressing the views of their ANCs. The PSC's order of June 26, 1992, No. 10044, authorized PEPCO to increase its annual retail rates by $30,380,000. The PSC reaffirmed this initial order on August 20, 1992, in Order No. 10080, denying OPC's and the District government's applications for reconsideration.

II.

In this court, OPC contends that, in issuing Order No. 10044 and Order No. 10080, the PSC did not properly include the Advisory Neighborhood Commissions in its ratemaking process, as mandated by D.C. Code § 1-261. In denying the OPC's application for reconsideration, the PSC stated that D.C. Code § 1-261 "does not apply to Formal Case No. 912 inasmuch as this is not a rulemaking, a case enumerated in D.C. Code § 1-261 (c), or a case affecting neighborhood planning or development." We agree that, given the circumstances of this case, the PSC did not err in reaching its Conclusion.

The statute establishing ANCs, § 738 of the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 87 Stat. 774 (1973), now codified as D.C. Code § 1-251 (1992 Repl.), sets out the powers of ANCs in general terms: "Each Advisory Neighborhood Commission . . . may advise the District government on matters of public policy including decisions regarding planning, streets, recreation, social services programs, health, safety, and sanitation in that neighborhood commission area . . . ." D.C. Code § 1-251 (c)(1). A subsequent provision of the same statute indicates circumstances in which ANCs are entitled to receive special notice of impending decisions, so that they can provide advice on those matters:

In the manner provided by act of the Council, in addition to any other notice required by law, timely notice shall he given to each Advisory Neighborhood Commission of requested or proposed zoning changes, variances, public improvements, licenses, or permits of significance to neighborhood planning and development within its neighborhood commission area for its review, comment, and recommendation.

D.C. Code § 1-251 (d). Neither of these provisions specifically mentions utility ratemaking.

The general provisions contained in D.C. Code §§ 1-251 (c) (1) and (d) were implemented by § 13 of the Duties and Responsibilities of the Advisory Neighborhood Commissions Act of 1975, D.C. Law 1-58, March 26, 1976, now codified as D.C. Code § 1-261. See Kopff v. District of Columbia Alcoholic Beverage Control Bd., 381 A.2d 1372, 1379, 1380 (D.C. 1977). According to D.C. Code § 1-261 (a) and (b), ANCs are clearly entitled to receive notice of District government rulemakings that affect them:

(a) Each Advisory Neighborhood Commission (hereinafter . . . the "Commission") may advise the Council of the District of Columbia, the Mayor and each executive agency, and all independent agencies, boards and commissions of the government of the District of Columbia with respect to all proposed matters of District government policy including decisions regarding planning, streets, recreation, social services programs, education, health, safety and sanitation which affect that Commission area. For the purposes of this act, proposed actions of District government policy shall be the same as those for which prior notice of proposed rulemaking is required pursuant to § 1-1506 (a) *fn1 or as pertains to the Council of the District of Columbia.

(b) Thirty days written notice of such District government actions or proposed actions shall be given by mail to each Commission affected by said actions . . . .

(Emphasis added). The PSC concedes that, as one of the "independent agencies, boards and commissions of the government of the District of ...


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