On Petition for Review of a Decision of the District of Columbia Public Service Commission. (Formal Case No. 1014).
Before Terry and Ruiz, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Petitioner, Washington Gas Light Company ("WGL" or "Company"), appeals a decision by the District of Columbia Public Service Commission ("PSC" or "Commission") directing WGL to keep its Anacostia customer service center open. First, WGL contends that the Commission exceeded its statutory authority and that its decision impermissibly interfered with WGL's management decisions regarding the Company's operations. Second, WGL argues that, in reaching its decision, the Commission utilized a legislative process that impermissibly deprived the Company of its procedural due process right to adjudication of disputed facts through an evidentiary hearing. Third and finally, WGL contends that the Commission's order is not supported by substantial evidence. We reject all of petitioner's arguments and affirm the Commission's order.
On December 2, 2002, WGL informed the Commission of its intent to close the Company's Anacostia customer service center and to discontinue receiving cash payments at its main office, then located at 1100 H Street, N.W., effective January 2, 2003.*fn1 Specifically, WGL stated that it had decided to close the Anacostia location because it was not cost effective, that customers had other bill payment options, and that alternative payment locations were available within the city to accept customer payments.
Pursuant to D.C. Code § 1.204.93 (2001), the Commission issued Order No. 12627 on December 27, 2003, commencing an investigation, Formal Case No. 1014, of WGL's proposed closure of the Anacostia service center. It also directed the Company to keep the Anacostia center open during the investigation. As part of the investigation, the Commission sent WGL a series of data requests and sought its opinion on the impact that the closure would have on services provided to customers and whether the planned closing was in the best interest of District of Columbia ratepayers.
On January 2, 2003, the Office of the People's Counsel ("OPC") moved to intervene in the case, and requested a formal public hearing to ascertain the views of District of Columbia ratepayers and consumers directly affected by WGL's proposed closure of the Anacostia service center.
On January 8, 2003, WGL filed an application for reconsideration of the Commission's decision to stay the closing of the Anacostia office. WGL argued that the Commission's stay violated WGL's due process rights, was ultra vires, and was unsupported by the record. In addition, WGL asserted that the stay impermissibly interfered with the Company's management decisions regarding its operations. In support of its proposal to close the Anacostia location, WGL explained that (1) a service center had been operating at that location since 1990 "for the sole purpose of . . . customer service," including accepting bill payments, taking customer complaints, opening and closing accounts, and providing account information, billing rates, budget payment plans, energy assistance, and extended payment plans; (2) SunTrust Bank, First Virginia Bank, and Farmers Bank of Maryland would accept customers' gas payments; (3) customer privacy would be safeguarded because the alternative locations would have access to only WGL account numbers and payment amounts, not to other customer information; (4) the quality of service to customers would be maintained because the main office at 1100 H Street, N.W. was accessible and able to handle customer service billing issues; and (5) WGL had expanded options to allow customers greater flexibility in managing accounts by providing a number of different payment alternatives: check or money order by mail; cash, check, or money order in person at the participating banks; payment by phone using a bank account or credit card; direct debit from checking or savings account; payment on the Internet at the WGL web site, using a bank account or credit card; and payment by check or credit card (but not cash) at WGL's main office. WGL argued that these payment alternatives were "viable" options for its Anacostia customers and that maintaining the operations at the customer service facility in Anacostia was not in the public interest because other customers would bear the expense of subsidizing the costly operation. According to WGL, closing the building in Anacostia would save $286,000 in labor, benefits, supplies, overhead, security, and janitorial services.
On January 24, 2003, the Commission issued a notice scheduling two public hearings on January 29 and February 1, 2003. WGL disagreed with the Commission's proceedings and renewed its objection that the Commission was acting ultra vires and without evidentiary support for its actions.
Over thirty-five members of the community spoke at the public hearings about WGL's proposal to close the Anacostia payment center. All opposed closing the center and eliminating the option to make cash payments at the main office location. Ward 8 Council Member, Sandy Allen, testified that the banks selected as alternative payment locations are not viable options because one of them (SunTrust Bank) would no longer accept gas payments as of March 1, 2003, and another (First Virginia Bank) has no branches in the city. Council Member Allen also testified that some members of the Anacostia community do not have bank accounts, credit cards, or access to the Internet to pay bills on-line. Hannah Hawkins, a resident of Anacostia, testified that since the opening of the Anacostia payment center, she no longer had to travel downtown on two to three buses in order to pay her bill, speak to a WGL representative about her account, or make payment arrangements if necessary. Virginia Major, also a resident of Anacostia, testified that she called the telephone number listed to pay by credit card and learned that a service fee is charged by a third-party credit card processor for handling the bill. She added that neither WGL nor the automatic telephone service advised her "up front" that the processing fee would equal 2.5% of the total amount of the gas bill. In addition, the Ward 8 Protest Planning Committee presented a petition opposing the Anacostia closure which contained 1,000 signatures, and later filed with the Commission a "Community Brief" on February 26, 2003, incorporating the comments made at the public hearings and asking the Commission to consider the impact of the closure upon the community, citing such factors as lack of Internet access, bank accounts and credit cards, and the imposition of credit card processing fees. WGL officials and counsel were present at the public hearings, but stated that their role in the hearings was to "listen." On January 31, 2003, WGL informed the Commission that it had reconsidered its previous decision and would continue to accept cash payments at its main office.
On March 21, 2003, the Commission denied WGL's request for reconsideration of the order commencing the investigation. The Commission noted that payment centers and the number of payment options available to ratepayers are an integral dimension of the provision of utility services in the District of Columbia. See Comm'n Order No. 12688 (Mar. 21, 2003) (citing Commonwealth v. Erie Excavating & Grading Co., 42 Pa. D. & C.2d 544, 548-49 (Pa. C.P. Dauphin 1967), for the proposition that "service" includes "any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities . . . in the performance of their duties . . . to their patrons . . . and the public."). The Commission explained that it disagreed with WGL's suggestion that the variety of alternative forms of payment is sufficient to ensure adequate customer service and that "based upon the practicalities of the circumstances, public policy considerations dictate that the Commission must require WGL to preserve the company's existing level of service to customers."
On April 21, 2003, WGL filed an application for reconsideration of Order No. 12688, stating for the first time that "facts surrounding the Company's proposed closing of Anacostia were in dispute." These disputed facts purportedly included the harm or benefit the proposed closing would have on customers, the availability of alternative payment facilities available to customers in the Anacostia community, and the viability of other payment options to customers. WGL argued that because facts in this case were disputed, the Commission was required to conduct evidentiary hearings to properly adjudicate all issues surrounding the closing and not the legislative-type community hearings conducted by the Commission. WGL continued to argue that the Commission's order was not supported by substantial evidence, and that the Commission's regulatory authority under D.C. Code §§ 1-204.93, 34-901, 34-908, and 34-914 (2001) did not encompass the regulation of management's business and operational decisions.
On May 30, 2003, the Commission denied WGL's second application for reconsideration. See Comm'n Order No. 12756 (May 30, 2003). The Commission rejected WGL's request for an evidentiary-type hearing on the ground that the issue presented concerned a policy decision. In addition, the Commission explained that a substantial record had been compiled and that the impact upon the community outweighed the economic considerations raised by the Company. Specifically, the Commission found that although WGL proposed other locations and a variety of methods of payment -- including mail, phone, Main Office, two banks, credit cards, Western Union, and Internet -- these alternatives were not truly viable options for a great number of customers in the community served by the Anacostia service center. First, the Commission noted that two of the banks mentioned as payment locations were not viable options to Anacostia customers because SunTrust Bank would no longer accept payments from WGL customers, and First Virginia Bank has no branches located within the District of Columbia.*fn2 Second, the Commission expressed concern that the options that WGL suggested for telephone and Internet payments are not accessible to a great number of customers in the relevant community who do not have Internet access, bank accounts, or credit cards. Third, the Commission noted that additional costs were associated with ...