noting that the Choice Act "expressly requires the PUC to administer [low-income programs such as the CAP] in a manner that is cost-effective for both the CAP participants and the non-CAP participants"
How later courts described this case
- noting that the Choice Act "expressly requires the PUC to administer [low-income programs such as the CAP] in a manner that is cost-effective for both the CAP participants and the non-CAP participants"
- noting that petitioners failed to convince PUC that customer education programs were not a reasonable alternative to price regulation
Written by the judges who cited it.
The opinion
DISSENTING OPINION BY
Judge Patricia a. McCullough.
I agree with the Majority’s remand of this case for Public Utility Commission (PUC) approval of a rule that would protect Customer Assistance Program (CAP) participants from early contract cancellation and termination fees that would otherwise be imposed , by electric generation suppliers (EGSs). However, because I would go further and also instruct the PUC on remand to approve a rule that would impose a price ceiling on the EGSs that participate in PECO Energy Company’s (PECO’s) CAP shopping program, I respectfully dissent.
Specifically, I disagree that the limited testimony referenced by the PUC constitutes substantial evidence to support its decision. The PUC fails to explain how excessive charges for alternative supply passed on to all PECO customers would be consistent with the statutory requirement that all rates be just and reasonable. Section 1301 of the Public Utility Code, 66 Pa.C.S. § 1301. Instead, the PUC relied on Direct Energy’s assertion that if price restrictions were put in place, suppliers may be discouraged from serving CAP participants. (Reproduced Record at 162a-63a.) An assertion that few suppliers would be interested in serving CAP participants or that suppliers would have to tailor their offerings to satisfy the price limitations proposed by PECO is not substantial evidence.
To omit this important protection for CAP consumers leaves them a recourse without a remedy and exposes them to possible bait and switch tactics by EGSs. Changing electric suppliers is no small decision for consumers, especially low-income consumers, and they should have some assurance that if they do so, they do not run the risk of paying higher rates. Eliminating early cancellation and termination fees simply does not provide that assurance.
Accordingly, since this case has been remanded to the PUC, I would also include an instruction that the PUC hold an additional hearing to determine whether the universal service plans are properly funded and cost effective under section 2804(9) of the Electricity Generation Customer Choice and Competition Act, 66 Pa.C.S § 2804(9). As the Majority notes, PUC’s duties to low-income Pennsylvanians “are of a continuing nature.” (op. at 1108.) Given that this important case is already before the PUC, there is no reason why the PUC should delay its assessment of whether it is discharging its duties to low- *1110 income Pennsylvanians until PECO mes its next universal service plan.