Gamage v. Pub. Utilities Comm'n

260 A.3d 704

2021 ME 50

Jennifer GAMAGE et al.

v.PUBLIC UTILITIES COMMISSION et al.

Docket: PUC-21-36

Supreme Judicial Court of Maine.

Argued: September 8, 2021

Decided: October 12, 2021

Peter L Murray, Esq. (orally), Murray, Plumb & Murray, Portland; Alex S. Parker, Esq., Trafton, Matzen, Belleau & Frenette, LLP, Auburn; and Sumner H. Lipman, Esq., Law Office of Sumner Lipman, Scarborough, for appellants Jennifer Gamage et al.

Amy Mills, Esq. (orally), Jordan McColman, Esq., and Mitchell Tannenbaum, Esq., Public Utilities Commission, for appellee Public Utilities Commission

Carlisle Tuggey, Esq., and Richard P. Hevey, Esq. (orally), Avangrid Service Company, Augusta, for appellee Central Maine Power

Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.

HUMPHREY, J.

[¶1] Jennifer Gamage and ten other residential customers of Central Maine Power Company (collectively, the CMP customers)¹ appeal from a Public Utilities Commission order dismissing their complaint alleging that CMP committed unreasonable practices by delivering notices threatening disconnection during the November 2020 to April 2021 winter season of the COVID-19 pandemic. We affirm the Commission's decision.²

I. BACKGROUND

[¶2] The facts are entirely procedural and are drawn from the Commission's record. On March 16, 2020, due to public health concerns arising from the COVID-19 pandemic, the Director of the Commission's Consumer Assistance and Safety Division (CASD) declared an emergency moratorium on all disconnection activity, including the issuance of disconnection notices and service disconnections, by electric transmission and distribution (T&D) and other utilities. Investigation of an Emergency Moratorium on Disconnection Activities , No. 2020-81, 2020 WL 1674179 (Me. P.U.C. Mar. 16, 2020). Following the institution of the moratorium, the Commission opened multiple inquiries related to the duration of the moratorium and invited comments from interested persons. The Commission considered comments submitted by the Office of the Public Advocate, eight T&D utilities, multiple other utilities, and a utility association. The Commission received additional comments after it published a draft order.

[¶3] Some of the T&D utilities that commented argued that rescinding the moratorium before winter would allow customers to become current on payments before the Commission's established winter-disconnection rules began to apply and would prevent customers from accruing two winters’ worth of arrearages with little or no recourse for the utilities. The Public Advocate urged the Commission to keep the emergency moratorium in place through the winter.

[¶4] By order dated September 17, 2020, the Commission lifted the emergency moratorium effective on November 1, 2020. Public Utilities Commission , Emergency Moratorium on Disconnection Activities Due to COVID-19 Pandemic, No. 2020-81 (Me. P.U.C. Sept. 17, 2020). In its order, the Commission summarized the requirements of its winter-disconnection rules, which restrict the utilities’ ability to disconnect residential customers’ service but anticipate that the customers will pay a reasonable portion of their bills to avoid accumulating arrearages. See 65-407 C.M.R. ch. 815, §§ 1(C)(3), 10(L)(3)(a)(ii) (effective Feb. 23, 2020). The Commission determined that a November 1, 2020, end date for the moratorium would allow a transition directly to the winter-period procedures, which prohibit disconnection between November 15 and April 15 without CASD approval and which require fourteen days’ written notice before disconnection. See 65-407 C.M.R. ch. 815, §§ 2(HH), 10(D)(2), 10(M)(4). The Commission decided to end the moratorium because it was concerned about customers’ accumulation of unmanageable debt, customers’ inability to access certain federal funds in the absence of disconnection notices, and the potential for an increase in rates due to the utilities’ resulting uncollectible debts.

[¶5] On December 21, 2020, well after the twenty-day reconsideration period for the September order, see 65-407 C.M.R. ch. 110, § 11(D) (effective Nov. 26, 2012), the CMP customers filed a complaint with the Commission alleging that they had either received notices threatening disconnection or feared receiving disconnection notices because they were behind in payments to CMP, see 35-A M.R.S. § 1302(1) (2021).³ They alleged, citing section 1302(1), that sending notices threatening disconnection during the winter of the pandemic, when COVID-19 case numbers were rising, amounted to an "unreasonable" practice by CMP that the Commission must investigate. As relief, the CMP customers requested that the Commission

• find that CMP's disconnection practices during the winter "and the pendency of the Covid-19 pandemic" were unreasonable,

• reinstate the earlier moratorium on disconnection,

• order CMP to suspend the sending of any disconnection notices through April 15, 2021, and

• order that the reinstated moratorium be publicized.

[¶6] At the Commission's invitation, CMP filed a response on December 31, 2020. CMP argued that the relief the CMP customers sought was truly a request for the Commission to reconsider its September order to rescind the moratorium; that the CMP customers had an issue with the Commission, not CMP; and that the CMP customers’ complaint was without merit because CMP had done all that was expected of it under the applicable statutes, orders, and rules. Also on December 31, the Public Advocate filed a response and urged the Commission to amend its September order to reinstate the moratorium and require that any email notice threatening disconnection include information about the programs in place for assistance with utility payments.

[¶7] On January 3, 2021, the CMP customers responded that their complaint was not an attempt to amend the September order but was instead focused on disconnection threats made as COVID-19 cases began to rise following the issuance of that order. The CMP customers argued that, in those particular circumstances, the disconnection notices were unreasonable and the Public Advocate's proposal to require CMP to send information about assistance with any threat to disconnect service would not dispel customers’ fears.

[¶8] Three days later, CMP responded that the relief requested by the Public Advocate went beyond the scope of the CMP customers’ complaint and would affect other utilities, that its outreach process already included providing information about payment assistance, that the broad relief sought by the CMP customers would not be a proper cure for any unreasonableness of the disconnection notices, and that there is already a special, exacting process in place for winter disconnection.

[¶9] The Commission dismissed the CMP customers’ complaint as being "without merit" because the disconnection notices complied with the applicable statutes, orders, and rules. Id. § 1302(2). The Commission concluded that the Public Advocate's proposed change to the disconnection-notice requirements was not properly addressed in the CMP customers’ proceeding.⁴

[¶10] The CMP customers timely appealed to this Court. See 35-A M.R.S. § 1320 (2021) ; M.R. App. P. 2B(c)(1), 22(a).

II. DISCUSSION

[¶11] To decide this appeal, we (A) explain the standard of review; (B) summarize the applicable statute and our previous construction of it; (C) review the cases in which the Commission, and we, previously applied the statute; and (D) apply the law to review the decision on appeal.

A. Standard of Review

[¶12] We review a decision of the Commission deferentially and will disturb it only if the Commission has abused its discretion or failed to "follow the mandate of the [L]egislature, or to be bound by the prohibitions of the constitution." Friedman v. Pub. Utils. Comm'n , 2016 ME 19, ¶ 10, 132 A.3d 183 (quotation marks omitted). "While it is true that a court will defer to an administrative agency's construction of a statute administered by it, that deference must yield to the fundamental approach of determining the legislative intent," and we look "to the wording of the statute and the legislative objective of the statute." Agro v. Pub. Utils. Comm'n , 611 A.2d 566, 569 (Me. 1992) (quotation marks omitted). Thus, we will review whether the Commission erred in construing 35-A M.R.S. § 1302 or abused its discretion in dismissing the complaint.

B. Previous Statutory Construction

[¶13] By statute, ten aggrieved persons may file a written complaint with the Commission to allege that a "practice or act of a public utility is in any respect unreasonable, insufficient or unjustly discriminatory." Id. § 1302(1). When such a complaint is filed, the Commission, "being satisfied that the petitioners are responsible, shall, with or without notice, investigate the complaint." Id.

[¶14] If, however, "the commission is satisfied that the utility has taken adequate steps to remove the cause of the complaint or that the complaint is without merit , the complaint may be dismissed." Id . § 1302(2) (emphasis added). The term "without merit" has particular meaning in this context: "the phrase ‘without merit’ must be understood to mean that there is no statutory basis for the complaint, i.e., that the PUC has no authority to grant the relief requested or that the rates, tolls, or services are not ‘in any respect unreasonable, insufficient, or unjustly discriminatory ... or inadequate.’ " Agro , 611 A.2d at 569 (quoting 35-A M.R.S. § 1302(1) ). Thus, although the Commission must "promptly and seriously consider consumer complaints brought to its attention through a section 1302 complaint," and may not "ignore complaints on the basis of expediency," the complaint may be dismissed if it does not have "some substantive merit." Id.

[¶15] If an issue has already been considered and determined not to have merit, we will affirm the Commission's decision to dismiss a ten-person complaint raising that issue. See Friedman v. Pub. Utils. Comm'n , 2012...