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

August 28, 2008

OFFICE OF THE PEOPLE'S COUNSEL, PETITIONER,
v.
PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA, RESPONDENT, AND VERIZON WASHINGTON, DC INC. AND WASHINGTON GAS LIGHT COMPANY, INTERVENORS.



On Petition for Review of Decisions of the Public Service Commission of the District of Columbia (Formal Case No. 712, Order Nos. 14392 and 14596).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued May 29, 2008

Before RUIZ, BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.

In this case we are presented with a petition by the Office of the People's Counsel ("OPC") challenging two orders of the Public Service Commission of the District of Columbia (the "Commission") -- Order No. 14392, issued on July 25, 2007, and Order No. 14596, issued on October 9, 2007, both arising out of OPC's request for a determination that the Commission is required to publish the local-revenue data that the Commission collects from public utilities pursuant to statutory mandate. The Commission ruled that it would treat OPC's request as a request for a declaratory order (rather than as a request to determine whether the revenue data that the utilities submitted for calendar year 2005 were proprietary and confidential) and, in its subsequent declaratory order, determined that local-revenue data that a public utility designates as proprietary may, on a case-by-case basis, be entitled to confidential treatment. Because we conclude that the Commission's rulings were not unreasonable, we affirm.

I.

Pursuant to D.C. Code § 34-912 (b)(3), the budgets of the Commission and OPC are funded in part through reimbursement fees charged to public utilities.*fn1 The reimbursement fee paid by each of the utilities is to reflect its "revenues . . . derived from utility operations in the District of Columbia" -- what the parties have referred to as each utility's "gross jurisdictional revenues" -- as a percentage of the revenues of all public utilities operating in the District. Id.

On July 21, 2006, and August 11, 2006, after receiving revenue data from utility companies, the Commission published in the D.C. Register Notices of Proposed Reimbursement for Public Utilities ("NOPRs"), addressing the reimbursement fees to be paid by intervenor Verizon Washington, DC Inc. ("Verizon"), by intervenor Washington Gas Light Company (WGL), and by the Potomac Electric Power Company (PEPCO). The NOPRs specifically identified the dollar amount of "revenues of all public utilities from utility operations in the District of Columbia" and also identified the dollar amounts of the Commission and OPC budgets to be funded through reimbursement fees. However, redacted from the NOPRs were the dollar amounts of each individual public utility's gross jurisdictional revenues and the dollar amount of reimbursement fees (and the percentage of total reimbursement fees) to be charged to each individual public utility (information that could be used to discover the amount of each utility's jurisdictional revenues).*fn2

OPC acknowledges that "[n]o comments or opposition were filed directly in response to the NOPRs" within the thirty-day comment period. But, on August 24, 2006, OPC did file a 'Motion for Clarification" of the NOPRs, asking the Commission "how the total calendar year gross revenue data from the District's regulated utilities is proprietary when such information is [OPC contended] already public information."*fn3 On September 12, 2006, while OPC's motion was still pending, the Commission published the final NOPRs in the D.C. Register. Thereafter, on September 27, 2006, the Commission issued Order No. 14068 in response to OPC's motion, explaining that because "no one challenged any of the three utilities' proprietary designation of [their] revenue information," the Commission had "made no determination that any of the information alleged to be confidential is entitled to proprietary treatment," but instead "simply followed [Commission] rules regarding the proper treatment of information when the filing party has alleged confidentiality" (emphasis in the original).

On January 19, 2007, OPC filed with the Commission a document entitled "Challenge to Verizon DC's, WGL's, and PEPCO's Designation of Information Regarding Their Respective Jurisdictional Revenues As Confidential and Proprietary Information Determination Request." On February 21, 2007, the Commission ruled, in Order No. 14218, that it would treat OPC's filing as a request for a declaratory order pursuant to D.C. Code § 2-508 and 15 DCMR § 144,*fn4 rather than as a Proprietary Information Determination Request ("PIDR") governed by 15 DCMR § 150.5. Treating OPC's filing as a request for a declaratory order,*fn5 the Commission invited public comment on "whether the revenue information of public utility companies, provided solely for the purpose of determining their share of the Commission's and OPC's operating budgets, is ever properly marked confidential under 15 DCMR § 150."

On July 25, 2007, the Commission issued Order No. 14392, in which it concluded that District of Columbia law "neither prohibits companies from marking their revenue information as confidential nor does it require the Commission to publish such information in the D.C. Register or in its orders." Although observing that "information that competitors can use to derive a company's profit margin could constitute serious competitive harm," the Commission declined to address whether any of the public utilities' claims of confidentiality with respect to the data they supplied in 2006 or any other particular year should be upheld. The Commission explained that it "decline[d] to engage in the arbitrary exercise of determining whether a disclosure of revenue information at some future date, under marketplace conditions that have yet to materialize, is or is not likely to cause substantial competitive harm." The Commission further stated that its Order "in no way impairs a party's ability to contact the party claiming its information is proprietary for an appropriate proprietary agreement [see 15 DCMR § 150.4 (a)], or to challenge a proprietary claim in an ongoing matter pursuant to [15 DCMR] § 150.4 [(b) and 150.5]."

On August 24, 2007, OPC filed an Application for Reconsideration of Order No. 14392. The Commission denied the application on October 9, 2007, by Order No. 14596. OPC's petition to this court followed.

II. Standard of Review

Our review of the Commission's decisions is governed by D.C. Code § 34-606, which states that "[i]n the determination of any appeal from an order or decision of the Commission the review by the Court shall be limited to questions of law, including constitutional questions; and the findings of fact by the Commission shall be conclusive unless it shall appear that such findings of the Commission are unreasonable, arbitrary, or capricious." Under the general limited review that we undertake of any agency decision, "we must affirm unless we conclude that the agency's ruling was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." King v. District of Columbia Water & Sewer Auth., 803 A.2d 966, 968 (D.C. 2002). We ordinarily defer to the Commission's reasonable interpretation of its own regulations. Bell Atlantic - Washington, D.C., Inc. v. Public Serv. Comm'n, 767 A.2d 262, 267 (D.C. 2001); see also Dankman v. District of Columbia Bd. of Elections & Ethics, 443 A.2d 507, 514 (D.C. 1981) ("Unless plainly erroneous, an agency's interpretation of its own regulation will be accorded deference"). However, we owe no particular deference to the Commission with respect to its interpretation of the Freedom of Information Act ("FOIA"), D.C. Code ยงยง 2-531 to -539; as to this our review is de novo, because the FOIA is "a statute of general applicability rather than one whose primary administration has been delegated to" the Commission. Johnson v. SEC, 318 U.S. App. D.C. 250, 87 F.3d 484, 486 (D.C. Cir. 1996);see also Proffitt v. FDIC, ...


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