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Office of the People's Counsel of the District of Columbia v. Public Service Commission of the District of Columbia

January 5, 2006

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



Petition for Review of Order of the Public Service Commission of the District of Columbia (Formal Case No. 1019).

The opinion of the court was delivered by: Washington, Chief Judge

Argued September 15, 2004

Before WASHINGTON, Chief Judge,*fn1 FARRELL and RUIZ, Associate Judges.

The Office of People's Counsel ("OPC") is petitioning for review of an order of the Public Service Commission of the District of Columbia permitting Potomac Electric Power Company ("PEPCO") to use new solid-state meters in providing service to residential and commercial customers within the District. OPC argues that the Public Service Commission unlawfully permitted PEPCO to alter a condition of service by approving PEPCO's application for new meters without providing the public with an opportunity to be heard. We disagree. PEPCO's request to use new meters, and the Public Service Commission's subsequent allowance, were done pursuant to properly enacted regulations which do not require notice and comment procedures. Thus, we affirm the order of the Public Service Commission.

I.

The Public Service Commission of the District of Columbia ("Public Service Commission" or "Commission") is an independent agency established by Congress in 1913 to regulate the gas, electric, and telephone companies operating within the District. The Potomac Electric Power Company ("PEPCO"), a provider of electricity within the District, is one such utility regulated by the Public Service Commission. In order to monitor electricity usage for billing purposes, PEPCO utilizes electric meters installed on the properties of residential and commercial customers. On October 15, 2002, PEPCO submitted two letters requesting expedited approval from the Commission to begin using five new solid-state electric meters to monitor electricity usage of its residential and commercial customers.*fn2 The new meters would replace older, electro-mechanical meters previously used by PEPCO's residential and commercial accounts.

On November 18, 2002, PEPCO, after correcting certain errors in the previous submission, filed its request for approval of the new solid-state meters, and on November 26, 2002, the Commission approved PEPCO's use of the new solid-state meters for both residential and commercial accounts. The Commission's approval was based upon a review of meter tests performed by the manufacturers and PEPCO itself. There is no dispute that both tests were conducted in accordance with appropriate standards. The Commission concluded that the test results verified that the new meters conformed to the American National Code for Electricity Metering ("ANCEM") specifications.

On December 23, 2002, the Office of People's Counsel ("OPC") -- an independent agency of the D.C. government that advocates on behalf of consumers of electricity, gas, and telephone services in the District -- filed a motion requesting that the Commission rescind or reconsider its November 26, 2002 approval letters. In its motion, OPC argued that the meter applications should be subject to public notice and comment procedures. Order Number ("No.")12737 denied OPC's December 23rd motion. The Commission also dismissed as moot OPC's alternative request for a hearing. The Commission ruled that the use of the new meters did not constitute a "change in the condition of service" within the meaning of D.C. Code § 34-909 (a) (2001), and, therefore, the applications were not subject to the notice and comment requirements of that provision.

OPC then sought reconsideration of Order No. 12737. On November 13, 2003, the Commission denied this request through Order No. 12989. The Commission also stated that the new meters would reduce rates and enhance competition, but noted that this was dicta and not the basis of its decision.

On January 17, 2004, OPC filed this petition seeking review of Order Nos. 12737 and 12989.

II.

This court has "jurisdiction to hear and determine any appeal from an order or decision of the [Public Service] Commission." D.C. Code § 43-905 (a) (2001); see also Potomac Electric Power Co. v. Public Serv. Comm'n, 661 A.2d 131, 134 (D.C. 1995). The scope of our review of a utility commission order is "limited to questions of law, including constitutional questions; and findings of fact by the Commission shall be conclusive unless it shall appear that such findings are unreasonable, arbitrary, or capricious." D.C. Code § 34-606 (2001). Moreover, we must affirm the Commission's order if it was based upon substantial evidence. See Watergate East, Inc. v. Public Serv. Comm'n., 662 A.2d 881, 886 (D.C. 1995); Potomac Electric Power Co. v. Public Serv. Comm'n, 402 A.2d 14, 17 (D.C. 1979).

To insure that judicial review can be meaningful, we also impose an independent burden on the Commission to fully and clearly explain its orders. Potomac Electric Power Co., supra, 661 A.2d at 135. The burden then shifts to the petitioner challenging the Commission's order to clearly and convincingly demonstrate that the Commission's decision was unreasonable. See Watergate East, supra, 662 A.2d at 886; see also Potomac Electric Power Co., supra, 661 A.2d at 135 n.4. We will affirm an agency's decision if we are satisfied that the agency engaged in reasonable analysis in coming to its decision. Watergate East Inc. v. Public Serv. Comm'n, 665 A.2d 943, 947 (D.C. 1995).

Finally, an agency's interpretation of a statute is controlling "'unless it is plainly erroneous or inconsistent with the statute.'" Capitol Hill Hosp. v. District of Columbia Dept. of Employment Servs., 726 A.2d 682, 684 (D.C. 1999) (quoting District of Columbia v. Davis, 685 A.2d 389, 393 (D.C. 1996)). This court will "defer to an agency's construction of the statute it is charged with administering as long as that construction enhances the general purposes and policies ...


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