IN THE MATTER OF ESTABLISHING THE SOLAR GENERATION FUND RIDER PURSUANT TO R.C. 3706.46; OHIO MANUFACTURERS’ ASSOCIATION ENERGY GROUP, APPELLANT; PUBLIC UTILITIES COMMISSION, APPELLEE; OHIO POWER COMPANY, INTERVENING APPELLEE.
No. 2021-1374
SUPREME COURT OF OHIO
December 7, 2022
Slip Opinion No. 2022-Ohio-4348
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Establishing the Solar Generation Fund Rider, Slip Opinion No. 2022-Ohio-4348.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-4348
IN THE MATTER OF ESTABLISHING THE SOLAR GENERATION FUND RIDER PURSUANT TO
OHIO MANUFACTURERS’ ASSOCIATION ENERGY GROUP, APPELLANT; PUBLIC UTILITIES COMMISSION, APPELLEE; OHIO POWER COMPANY, INTERVENING APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In re Establishing the Solar Generation Fund Rider, Slip Opinion No. 2022-Ohio-4348.]
Public utilities—
(No. 2021-1374—Submitted July 12, 2022—Decided December 7, 2022.
APPEAL from the Public Utilities Commission, No. 21-447-EL-UNC.
{¶ 1} This appeal arises from an ordеr of the Public Utilities Commission that authorized a recovery mechanism referred to as the solar-generation-fund rider (“Rider SGF“). Ohio electric-distribution utilities charge Rider SGF each month to their retail customers, but they do not retain the money recovered through it. Instead, they pass the money through to the solar generation fund, which is then used to subsidize the operations of qualifying solar-resource generators in Ohio.
{¶ 2} The Ohio Manufacturers’ Association Energy Group (“OMAEG“), filed this appeal raising various challenges to the amount and structure of Rider SGF.
{¶ 3} For the reasons discussed below, we affirm in part and reverse in part the commission‘s order and remand the cause to the commission for clarification on one issue.
I. FACTS AND PROCEDURAL BACKGROUND
A. 2019 Am.Sub.H.B. No. 6 and 2021 Am.Sub.H.B. No. 128
{¶ 4} In October 2019, Am.Sub.H.B. No. 6 (“H.B. 6“) went into effect. Among other things, the bill authorized payments to subsidize the operations of certain in-state nuclear-energy- and renewable-energy-resource facilities. H.B. 6 established a “nuclear generation fund” that would allow for total disbursements of $150 million annually to qualifying nuclear generators and a “renewable generation fund” that would allow for annual disbursements of $20 million to “qualifying renewable resource” facilities.
{¶ 5} In June 2021, the General Assembly enacted Am.Sub.H.B. No. 128 (“H.B. 128“), which repealed certain portions of H.B. 6, including those related to the creation of the nuclear generation fund, but left in place the renewable generation fund, which was renamed the “solar generation fund.” H.B. 128 retained from H.B. 6 the requirement that disbursements from the solar generation fund would be cаpped at $20 million annually.
{¶ 6} The commission has discretion to determine “the method by which the revenue is allocated or assigned to each electric distribution utility for billing and collection,” with certain limits that are not relevant here.
B. The commission‘s proceedings
{¶ 7} In April 2021, the commission opened a case for the purpose of establishing a new recovery mechanism under
{¶ 8} On July 14, 2021, the commission issued an order establishing Rider SGF as the recovery mechanism that would be used to provide revenue for the solar generation fund. OMAEG filed an application for rehearing, which the commission denied.
{¶ 9} OMAEG appealed to this court. The commission has filed a brief in defense of its order. The Ohio Power Company has intervened as an appellee to oppose reversal.
II. STANDARD OF REVIEW
{¶ 10} ”
{¶ 11} Although this court has “complete and independent power of review as to all questions of law” in appeals from the Public Utilities Commission, Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997), we may rely on the expertise of a state agency in interpreting a law when “highly specialized issues” are involved and when “agency expertise would, therefore, be of assistance in discerning the presumed intent of our General Assembly,” Consumers’ Counsel v. Pub. Util. Comm., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979).
III. DISCUSSION
{¶ 12} OMAEG raises five propositions of law. As will be discussed, we remand this matter to the commission for clarification of the issue addressed in OMAEG‘s fourth proposition of law, but the remaining propositions lack merit.
A. Proposition of law No. I: Whether the commission erred by establishing an annual revenue requirement of $20 million for Rider SGF
{¶ 13} In its first proposition of law, OMAEG argues that the commission erred when it established a fixed annual revenue requirement of $20 million for Rider SGF. The provision at issue here is
Beginning for all bills rendered on or after January 1, 2021, by an electric distribution utility in this state, such electric distribution utility shall collect from all of its retail electric customers in this state, each month, a charge which, in the aggregate, is sufficient to produce a revenue requirement of twenty million dollars annually for total disbursements required under section 3706.55 of the Revised Code from the solar generation fund.
{¶ 14} OMAEG asserts that in enacting
{¶ 15} The commission and Ohio Power argue that
solar resources. For the reasons explained below, we agree with the commission and Ohio Power and therefore reject OMAEG‘s first proposition of law.
1. The plain language of R.C. 3706.46(A)(1) establishes a fixed annual revenue requirement of $20 million
{¶ 16} As with any question involving statutory construction, our analysis must begin with the language of the statute. In re Application of Duke Energy Ohio, Inc., 150 Ohio St.3d 437, 2017-Ohio-5536, 82 N.E.3d 1148, ¶ 19.
{¶ 17} As noted, OMAEG argues that
{¶ 18} OMAEG invokes the statute‘s use of the word “sufficient” but never discusses the words that immediately follow it. OMAEG ignores the words “to produce a revenue requirement of twenty million dollars annually.” Thus, when all the words in the statute are read in context,
{¶ 19} OMAEG likewise reads out of context the phrase “for total disbursements required under section 3706.55 of the Revised Code” in
{¶ 20} Stated differently, OMAEG interprets
[A]n electric distribution utility in this state * * * shall collect * * * a charge which * * * is sufficient to
produce a revenue requirement of up to twenty million dollars annually for total disbursements required under section 3706.55 of the Revised Code from the solar generation fund.
But the General Assembly did not write
2. The commission did not violate R.C. 4903.09
{¶ 21} OMAEG additionally argues under its first proposition of law that the commission‘s decision to set the annual revenue requirement at $20 million lacked any citation to the record, in violation of
{¶ 22} But it was not necessary for the commission to cite evidence supporting its decision, because, as we hold above,
B. Proposition of law No. II: Whether the commission violated R.C. 3706.46(B) when it established Rider SGF on a per-account basis
{¶ 23} OMAEG argues under its second proposition of law that the commission erred by establishing Rider SGF on a per-account basis because the plain language of
1. The commission‘s interpretation of “per customer”
{¶ 24} The commission rejected OMAEG‘s argument that it was required to implement Rider SGF on a per-customer basis. The commission determined that the word “customer” in
{¶ 25} The commission based its decision on
2. OMAEG has not shown that the commission erred in establishing Rider SGF on a per-account basis
{¶ 26} OMAEG‘s primary argument on this issue is that the commission “cannot lawfully construe the meaning of ‘per-customer’ to mean ‘per-billing account.‘” According to OMAEG, because no ambiguity exists in the phrase “per-customer monthly charge” in
{¶ 27} It is well established that in construing statutes, when a word has a technical definition that is different from its dictionary definition, it must be construed according to the former. Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶ 26, citing Youngstown Sheet & Tube Co. v. Lindley, 56 Ohio St.2d 303, 309, 383 N.E.2d 903 (1978); see also
{¶ 28} We presume commission orders to be reasonable, and OMAEG, as the appellant, must overcome that presumption. In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 17. OMAEG, however, completely ignores the commission‘s legal rationale for finding that Rider SGF should be applied on a per-account basis. In its main brief, OMAEG does not even mention, let alone offer an argument against, the definition of “customer” in
{¶ 29} A rule adopted by an administrative agency is valid and enforceable unless it is unreasonable or in conflict with the statutory enactment covering the same subject matter. Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, ¶ 39. Yet OMAEG has failed to challenge the commission‘s application of the Administrative Code‘s definition of “customer.” This defeats OMAEG‘s argument that the commission
{¶ 30} OMAEG does mount a challenge to the administrative rule‘s definition of “customer” in its reply brief. OMAEG, however, is barred from raising new arguments for the first time on reply. Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 54. OMAEG is also barred from raising this argument because it did not specify the argument in its application for rehearing before the commission as
{¶ 31} In the end, it is established doctrine that a party who contends that rates and charges are unreasonable or unlawful bears the burden of demonstrating reversible error on appeal. In re Application of Columbus S. Power Co., 128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655, ¶ 56. OMAEG cannot prevail on a challenge that the commission misinterpreted the word “customer” if it does not challenge the definition that the commission applied to that word. See Columbus S. Power, 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, at ¶ 19; Duke Energy, 150 Ohio St.3d 437, 2017-Ohio-5536, 82 N.E.3d 1148, at ¶ 25. We therefore reject OMAEG‘s second proposition of law.
C. Proposition of law No. III: Whether the commission violated R.C. 3706.46(B) by failing to limit application of the $242 monthly cap on Rider SGF to industrial customers eligible to become self-assessing purchasers
{¶ 32} In its third proposition of law, OMAEG argues that the commission violated
In authorizing the level and structure of any charge to be billed and collected by each electric distribution utility, the commission shall ensure that the per-customer monthly charge for residential customers does not exceed ten cents and that the per-
customer monthly charge for industrial customers eligible to become self-assessing purchasers pursuant to division (C) of section 5727.81 of the Revised Code does not exceed two hundred forty-two dollars. For nonresidential customers that are not self-assessing purchasers, the level and design of the charge shall be established in a manner that avoids abrupt or excessive total net electric bill impacts for typical customers.
(Emphasis added.)
{¶ 33} The commission rejected OMAEG‘s argument that the $242 monthly rate cap under this provision applied only to industrial customers eligible to become self-assessing purchasers. The commission instead accepted its staff‘s recommendation to cap the rate for all nonresidential customers that are eligible to become self-assessing purchasers.
{¶ 34} OMAEG maintains that
{¶ 35} As will be discussed, OMAEG fails to show that the commission erred or to explain how its members were prejudiced or harmed by the commission‘s decision.
1. What is an eligible self-assessing purchaser?
{¶ 36} Before addressing OMAEG‘s arguments, we discuss
{¶ 37}
{¶ 38} Under
{¶ 39} For a customer to operate as a self-assessing purchaser,
self-assessed excise tax. See also
2. OMAEG fails to challenge the specific ground cited by the commission in support of its decision
{¶ 40} OMAEG claims that the commission erred when it interpreted the $242-monthly-cap language in the first sentence of
{¶ 41} A party who challenges rates and charges approved by the commission has the burden on appeal under
3. OMAEG also fails to demonstrate prejudice or harm stemming from the decision
{¶ 42} OMAEG also overlooks a basic prerequisite to reversing a commission order: the party seeking reversal must show that it has been or will be harmed or prejudiced by the order, In re Application of Ohio Power Co., 140 Ohio St.3d 509, 2014-Ohio-4271, 20 N.E.3d 699, ¶ 31; In re Complaint of Buckeye Energy Brokers, Inc. v. Palmer Energy Co., 139 Ohio St.3d 284, 2014-Ohio-1532, 11 N.E.3d 1126, ¶ 19. OMAEG does not even attempt to show how its members suffered harm or prejudice from the rate cap‘s extension beyond industrial customers that are eligible to become self-assessing purchasers to eligible commercial customers and qualified end users. This provides an independent ground for us to reject OMAEG‘s third proposition of law.
D. Proposition of law No. IV: Whether the commission violated Ohio law by including the Commercial Activity Tax in Rider SGF
{¶ 43} OMAEG argues that the commission erred when it determined that customers must also pay the commercial activity tax (“CAT“) through Rider SGF. OMAEG maintains that there is no language in
{¶ 45} For its part, Ohio Power contends that OMAEG unnecessarily challenges the commission‘s decision regarding the CAT. According to Ohio Power, the Rider SGF funds it collects are not subject to the CAT and, in turn, Ohio Power is not grossing up the amount of Rider SGF to offset its CAT liability and pass it on to customers. Arguing that OMAEG has not raised a valid controversy, Ohio Power urges this court to affirm the commission‘s CAT determination.
{¶ 46} For the reasons explained below, we remand the case to the commission for clarification оn this issue.
1. Background on the commission‘s CAT determination
{¶ 47} The CAT is levied “on each person with taxable gross receipts for the privilege of doing business in this state.”
{¶ 48} In the proceedings below, the commission‘s staff recommended that the CAT be included in the monthly Rider SGF charge to residential and nonresidential customers of the Ohio electric-distribution utilities.
{¶ 49} OMAEG objected to the commission staff‘s recommendation that customers be responsible for paying the CAT through Rider SGF. OMAEG argued that electric-distribution utilities are responsible for paying the CAT under
{¶ 50} Two electric-distribution utilities weighed in as well. Like OMAEG, Ohio Power maintained that the revenues recovered by the electric-distribution utilities through Rider SGF are not subject to the CAT. Conversely, the Dayton Power and Light Company maintained that electric-distribution utilities will be subject to the CAT on revenues collected via Rider SGF and that failing to gross up rider revenuеs by the amount of the CAT liability will result in electric-distribution utilities incurring CAT costs without offsetting revenue.
{¶ 51} Against this backdrop, the commission made conflicting, or at a minimum confusing, rulings. In one part of its order, the commission expressly determined that “[e]ach [electric-distribution utility] will charge its residential customers $0.10 per month, including CAT.” Pub. Util. Comm. No. 21-447-EL-UNC, 2021 WL 3036724, at ¶ 19(a) (July 14, 2021). The commission, however, made
{¶ 52} In another part of the order, the commission offered a confusing discussion regarding its authority to adjust the Rider SGF to account for any CAT offset. The commission determined that
{¶ 53} On rehearing, the commission reaffirmed its analysis and clarified:
Relative to whether CAT amounts are properly included for recovery in Rider SGF, we again reject OMAEG‘s claimed error. Consistent with our analysis earlier herein, the legislature was aware of our prior statutory interpretation as to this issue, which disfavored reducing rider recoveries to account for any CAT offset, when it enacted H.B. 128. We clarify that the residential customer charge of $0.10 per month is the fixed amount required by the statute without regard to any CAT offset and is not subject to further adjustment. Subject to this clarification, we affirm that the enactment of H.B. 128 without any modification regarding CAT recoveries speaks to the legislative intent as to this issue.
Pub. Util. Comm. No. 21-447-EL-UNC, rehearing entry, 2021 WL 4149861, ¶ 14 (Sept. 8, 2021).
2. The commission‘s CAT determination requires clarification
{¶ 54} As we understand the commission‘s argument in this appeal, it claims that under its order, no CAT amounts are to be included in Rider SGF, because
{¶ 55} The commission‘s order can just as easily be read as holding that the CAT may properly be included in the rider. As noted above, the commission held on rehearing that it lacked authority to reduce Rider SGF recoveries to offset the CAT. But if the CAT were not included in the monthly rider charge, there would be no reason to determine whether the commission had authority to reduce the rider charge to “offset” the CAT.
{¶ 56} In our view, the commission had the analysis backwards. The commission considered whether it had authority to either gross up or reduce the rider to offset the CAT. What the commission should have asked instead was (1) whether the revenue collected by electric-distribution utilities through Rider SGF was subject to the CAT and (2) if so, whether it was appropriate to shift the CAT liability from electric-distribution utilities onto customers by including CAT amounts in the rider.
{¶ 57} Because the commission‘s CAT determination can be read two ways, we remand this case to the commission for clarification on this issue. On remand, the commission is instructed to expressly determine
E. Proposition of law No. V: Whether the commission еrred in failing to require refund language in the tariffs to Rider SGF
{¶ 58} OMAEG argues that the commission erred when it failed to require refund language in the tariffs implementing Rider SGF. OMAEG acknowledges that
{¶ 59} OMAEG overlooks that all Ohio electric-distribution utilities have included language in their Rider SGF tariffs to effectuate thе refund and reconciliation processes required by
IV. CONCLUSION
{¶ 60} For the foregoing reasons, we affirm the commission‘s order in part, reverse it in part, and remand this case for clarification.
Order affirmed in part and reversed in part and cause remanded.
FISCHER, DONNELLY, STEWART, and KILBANE, JJ., concur.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by KENNEDY, J.
MARY EILEEN KILBANE, J., of the Eighth District Court of Appeals, sitting for BRUNNER, J.
DEWINE, J., concurring in part and dissenting in part.
{¶ 61} The General Assembly set up a fund to subsidize solar power and tasked the Public Utilities Commission of Ohio (“PUCO“) with establishing the amounts that ratepayers must pay into the fund. In doing so, the General Assembly placed caps on the amounts that could be assessed “per customer.” PUCO, though, decided that when the General Assembly said “per customer,” it didn‘t really mean it. It held that the “per-customer” cap does not actually cap the amount that may be charged tо each customer. Instead, it determined that the “per-customer” cap limits the amount that may be billed to an account. So, under its order, a single customer with multiple accounts may be assessed the “per-customer monthly” cap amount multiple times.
{¶ 62} PUCO‘s interpretation is contrary to the ordinary meaning of the word “customer.” It is also at odds with the definition of “customer” contained in the Ohio Administrative Code. The construction of a statutory term is a pure question of law over which this court has independent power of review. Yet the majority signs off on the commission‘s contra-textual interpretation without any analysis of the statutory language at all. Thus, I respectfully dissent from that portion of the majority‘s
I. The General Assembly Establishes a Per-Customer Cap
{¶ 63} In tasking PUCO with setting the solar fund rider (“Rider SGF“), the General Assembly placed limits on the amount that a customer could be billed.
In authоrizing the level and structure of any charge to be billed and collected by each electric distribution utility, the commission shall ensure that the per-customer monthly charge for residential customers does not exceed ten cents and that the per-customer monthly charge for industrial customers eligible to become self-assessing purchasers * * * does not exceed two hundred forty-two dollars.
(Emphasis added.)
{¶ 64} The issue here concerns the application of these per-customer caps. In establishing Rider SGF, PUCO found that the “legislative use of the word ‘customer’ in
{¶ 65} In support, the OMA points to the ordinary meaning of the word “customer.” It contends that the meaning of “customer” is unambiguous, but it suggests that if the court finds the term to be ambiguous, it should look at legislative history. In this vein, it points out that earlier versions of the legislation contained a “per account” cap but the legislature replaced that language with a “per customer” cap.
II. The Majority‘s Flawed Analysis
{¶ 66} The majority never takes on the plain-reading argument. (And who can blame it—it‘s pretty hard to argue that “customer” doesn‘t mean customer.) Instead, it comes up with a convoluted rationale for just ignoring plain meaning. That rationale goes like this:
- When a term has a technical meaning, we should apply that meaning rather than the term‘s plain meaning.
- We presume PUCO orders to be reasonable, and the OMA must overcome that presumption.
- PUCO said it relied on the definition of “customer” in
Ohio Adm.Code 4901:1-10-01(I) as establishing that the technical meaning of “customer” is account. The OMA failed to challenge PUCO‘s application of the administrative code‘s definition of “customer.” And “[t]his defeats [OMA‘s] argument that the commission violatedR.C. 3706.46(B) in applying Rider SGF on a per-account basis.” Majority opinion, ¶ 29.
What a load of tautological nonsense. Let‘s start at the top.
A. Technical meaning
{¶ 67} It is true that sometimes the context in which words are used can demonstrate that a technical meaning is intended rather than an ordinary meaning.
B. Presumption
{¶ 68} Next, the majority repeats the shibboleth that “[w]e prеsume commission orders to be reasonable,” majority opinion at ¶ 28. This “presumption” goes back to E. Ohio Gas Co. v. Pub. Util. Comm., where this court stated that the presumption existed specifically with respect to whether the commission‘s “findings and orders are just and reasonable,” 137 Ohio St. 225, 249, 28 N.E.2d 599 (1940). But the presumption applies only to factual questions—the types of questions that require us to look at the record and determine whether the evidence supports the commission‘s decision on a matter. See id. at 248-249; Indus. Energy Consumers of Ohio Power Co. v. Pub. Util. Comm., 68 Ohio St.3d 559, 563, 629 N.E.2d 423 (1994) (distinguishing between factual questions, to which the presumption applies, and questions of law).
{¶ 69} This court has “complete and independent power of review” when it comes to questions of law in appeals from the commission. Ohio Edison Co. v. Pub. Util. Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997). The meaning of the word “customer” in a statute is purely a question of law. And as a simple question of the legal interpretation of a commonly used term, it is one that we answer without deference to PUCO. See In re Application of Ohio Edison Co., 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, ¶ 62-63 (DeWine, J., concurring in judgment only); In re Application of Black Fork Wind Energy, L.L.C., 156 Ohio St.3d 181, 2018-Ohio-5206, 124 N.E.3d 787, ¶ 43 (Kennedy, J., concurring). Indeed, since the days of Marbury v. Madison, it has been clear that it is for judges, not bureaucrats, to say what the law is. 5 U.S. 137, 2 L.Ed. 60 (1803).
C. Not Challenged
{¶ 70} The majority saves its best trick for last. It says PUCO relied on the definition of “customer” in the Ohio Administrative Code as establishing the technical meaning of “customer” and the OMA never challenged PUCO‘s reliance on that definition until its reply brief, so, voila, PUCO wins. Almost magically, PUCO carries the day without the court even having to look at whether the legislature meant to ascribe a technical meaning to “customer” different from the ordinary meaning or even examining the technical meaning applied by PUCO.
{¶ 71} The problem is that the OMA did challenge PUCO‘s understanding of the word “customer” in its opening brief. It argued that based оn the plain language of
{¶ 72} The majority seems to think that the OMA had some obligation in its initial brief to specifically debunk PUCO‘s contention that the administrative-
code provision supported PUCO‘s reading of the statute. It didn‘t. The OMA‘s argument was much more basic: there was no need to consider the administrative-code provision because the language of the statute is clear. The majority should have assessed the OMA‘s argument and decided whether to apply the plain language of the statute or whether context demanded that a different tеchnical meaning of “customer” be applied. Instead, it threw together an unwarranted assumption, a legally incorrect presumption, and a mischaracterization of the OMA‘s argument to completely avoid any textual analysis of the statute.
III. The Administrative-Code Provision Doesn‘t Support PUCO‘s Reading of the Statute
{¶ 73} So let us do what the majority refuses to do: answer the proposition of law in front of us and determine whether PUCO properly held that as used in
{¶ 74} There is no good-faith argument that the ordinary meaning of “customer” is anything other than what the OMA says it is—a person or entity who contracts for utility services. The only question is whether there is a technical meaning of “customer” different from its ordinary meaning that should be applied in this context.
{¶ 75} PUCO does not set forth any argument that the legislature meant the word “customer” in anything but the ordinary sense of the word. It simply points to the existence of an administrative provision,
{¶ 76} But turn to that definition. A “customer” is “any person who has an agreement, by contract and/or tariff with an electric utility * * * to receive service.”
PUCO‘s argument that “customer” means “account.” Under the definition, a “customer” is simply a person or entity that has an agreement to receive service. Nothing in the definition suggests that one customer cannot have multiple agreements or have multiple accounts. So even if we do what PUCO asks and look to the administrative-code definition, we end up exactly where we started. “Customer” means customer; it doesn‘t mean account.
{¶ 77} Tellingly, despite saying that the administrative-code provision controls, PUCO does not make any argument about the actual language of the administrative-code provision. Instead, it points to its own caselaw interpreting that administrative-code provision. PUCO brief at 8-9, citing In re Establishing the Nonbypassable Recovery Mechanism for Net Legacy Generation Resource Costs Pursuant to
{¶ 78} But of course, it‘s up to the legislature, not PUCO, to make the law. And it‘s up to this court to say what the law is. The fact that PUCO may have
{¶ 79} Here, both the plain language of the statute and the plain language оf the administrative-code provision relied upon by PUCO point in the same direction: “customer” means customer. And because the statute is unambiguous, there is no need take up the OMA‘s legislative-history argument.
IV. Conclusion
{¶ 80} Because neither ordinary meaning nor the administrative code support the commission‘s interpretation of “per-customer” in
KENNEDY, J., concurs in the foregoing opinion.
Carpenter Lipps & Leland, L.L.P., Kimberly W. Bojko, Jonathan Wygonski, and Thomas V. Donadio, for appellant.
Dave Yost, Attorney General, and John H. Jones, Jodi J. Bair, and Thomas M. Shepherd, Assistant Attorneys General, for appellee.
Steven T. Nourse, for intervening appellee.