Case Information
*1
[Cite as
In re Application of Columbus S. Power Co.,
I N RE A PPLICATION OF C OLUMBUS OUTHERN P OWER C OMPANY ET AL . TO A DJUST T HEIR E CONOMIC D EVELOPMENT C OST R ECOVERY R IDER ; I NDUSTRIAL E NERGY U SERS –O , A PPELLANT ; P UBLIC U TILITIES C OMMISSION ET AL ., A PPELLEES .
[Cite as
In re Application of Columbus S. Power Co.,
charges. (No. 2010-1073—Submitted June 8, 2011—Decided August 24, 2011.) A PPEAL from the from the Public Utilities Commission, No. 10-154-EL-RDR.
__________________
M G EE B ROWN , J.
In the case below, the Public Utilities Commission allowed the American Electric Power operating companies (“AEP”) to recover certain costs arising from a pair of discounted-rate arrangements. Industrial Energy Users– Ohio (“IEU”) opposed AEP’s application and now appeals. IEU fails to demonstrate reversible error, however, and we affirm.
I. Factual and Procedural Background As previously ordered by the commission, AEP had been
providing service to a pair of manufacturing customers at discounted rates.
[1]
“[T]he difference between what AEP would have collected from [these
customers] under its tariffs and what it actually collected, given the discount,” is
called “delta revenue.”
In re Application of Columbus S. Power Co.
, 129 Ohio
St.3d 271,
this delta revenue and intending to collect it through a rate mechanism called “the economic development cost recovery rider.” We will simply call it “the rider.”
{¶ 3} In the case below, AEP filed an application seeking permission to collect its delta revenue through the rider. This was actually the second time that AEP had filed such an application; its first request had been granted only a month earlier. These quickly successive applications reflected the requirement that AEP “update[ ] and reconcile[ ]” the rider every six months. Ohio Adm.Code 4901:1- 38-08(A)(5).
{¶ 4} IEU opposed both requests, raising the same objections each time. In the first proceeding, the commission rejected IEU’s arguments. IEU appealed that decision to this court, and the case was briefed; we never ruled on the dispute, however, because IEU dismissed its appeal before oral argument. In the second proceeding (which is the case now on review), the
commission again rejected IEU’s arguments, this time on the basis that it had already ruled against IEU in the first proceeding. IEU again appealed. It did not dismiss this appeal, but did choose to submit the case on the briefs, without oral argument. AEP has intervened as an appellee.
II. Discussion IEU initially raised four propositions of law but has since
dismissed the first two. For reasons discussed below, the remaining propositions lack merit.
A. IEU Has Not Shown that the Commission Erred in Modifying the Phase-in of AEP’s Rates In its third proposition of law, IEU argues that the order unlawfully exempted the rider from the maximum increases permitted in AEP’s electric- security-plan case. IEU is referring to the commission’s decision in an earlier case to limit how much AEP could annually increase its customers’ bills; the commission acted under R.C. 4928.144, which permits the commission to
January Term, 2011
“authorize any just and reasonable phase-in” of certain electric rates. IEU attacks the decision to exempt the rider from the rate-increase limits on two grounds: procedurally, it asserts that the commission departed from precedent; substantively, it argues that the commission unreasonably increased rates. Neither argument is persuasive. As to the procedural argument, the order below did not violate the
earlier, electric-security-plan order. It is true, as IEU argues, that the earlier order
did not exempt the rider from the rate-increase limits. But the commission did not
rule out further exemptions, and as a general rule, the commission has discretion
to revisit earlier regulatory decisions and modify them prospectively. See, e.g.,
Utility Serv. Partners, Inc. v. Pub. Util. Comm.
,
commission erred by allowing current rates to become too high. This argument also lacks merit. The decision that IEU attacks is a discretionary one. As noted, the
commission’s power to limit annual rate increases, and thus phase-in AEP’s rates, comes from R.C. 4928.144. That law allows the commission to “authorize any just and reasonable phase-in” of electric-security-plan rates “ as the commission considers necessary to ensure rate or price stability for consumers.” (Emphasis added.) While the end product must be “just and reasonable,” the emphasized language entrusts the details of any phase-in—how much should be collected now, how much later—to the commission’s discretion. UPREME OURT OF O
{¶ 11}
Discretionary decisions
receive deferential
review,
Ohio
Consumers’ Counsel v. Pub. Util. Comm.
, 117 Ohio St.3d 289,
{¶ 12} For the foregoing reasons, we reject IEU’s third proposition of law. B. IEU Has Not Shown that the Commission Erred in Calculating AEP’s Carrying Charges In its fourth proposition of law, IEU argues that the commission erred in allowing AEP to use a long-term debt rate (as opposed to a short-term rate) to calculate certain carrying charges. Again, however, IEU has not demonstrated reversible error. IEU has preserved for appeal only a single argument concerning
the calculation of AEP’s carrying charges. In its application for rehearing, IEU alleged that the commission had “repeated[ly] fail[ed] to at least inquire as to whether a lower carrying cost rate could be utilized.” (Emphasis added.) “Customers,” IEU asserted, “deserve at least some analysis or other review” of the carrying-cost issue. IEU raised no other argument. So far as IEU’s rehearing application explained, the commission
would have fully satisfied IEU’s concerns if it had “inquired” or provided “some analysis or other review” of the carrying-cost issue. But the commission did “inquire” and provide “some analysis” of that issue: it had reviewed that issue in
January Term, 2011
the preceding rider case. [2] And in the order below, the commission explained that very fact in response to IEU’s objection. IEU did not reply with any additional challenges. In short, IEU argued only that the commission needed to make an inquiry, and the commission pointed out where it had made that inquiry. The commission fully answered IEU’s concern. IEU’s remaining argument—that the commission failed to explain
the reasons for its decision—is forfeited. We have jurisdiction only over
arguments raised on rehearing.
Ohio Consumers’ Counsel v. Pub. Util. Comm.
,
III. Conclusion For the foregoing reasons, we affirm.
Order affirmed. O’C ONNOR , C.J., and P FEIFER , L UNDBERG TRATTON , O’D ONNELL , L ANZINGER , and C UPP , JJ., concur.
__________________
McNees, Wallace & Nurick, L.L.C., Samuel C. Randazzo, and Joseph E.
Oliker, for appellant.
Michael DeWine, Attorney General, and William L. Wright, Thomas W. McNamee, Thomas G. Lindgren, and Werner L. Margard III, Assistant Attorneys General, for appellee, Public Utilities Commission of Ohio.
Steven T. Nourse and Matthew J. Satterwhite, for intervening appellees, Columbus Southern Power Company and Ohio Power Company.
______________________
2. That order is not before us, and we offer no opinion on its merits.