Amicus Curiae Brief — Pacific Gas & Electric Co. v. Public Utilities Commission

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UmMce Sinpreme Court, US.

' i E D

3 JUL 20 1985

No. 84-1044

STEVAS,

CLE

IN THE a

Suprene Court of the United States

OCTOBER TERM, 1985

PACIFIC GAS AND ELECTRIC COMPANY,

Appellant,

Vv.

PUBLIC UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA, et al.,

Appellees.

On Appeal From Tl e Supreme Court Of California

BRIEF AMICUS CURIAE OF THE

NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY '

MANAGEMENT ASSOCIATION,

THE UNITED STATES CONFERENCE OF MAYORS,

AND NATIONAL GOVERNORS’ ASSOCIATION

IN SUPPORT OF APPELLEES

JONATHAN B. SALLET BENNA RUTH SOLOMON

MILLER, CASSIDY, LARROCA Chief Counsel

& LEWIN JOYCE HOLMES BENJAMIN *

2555 M Street, N.W. THE STATE AND LOCAL

Suite 500 LEGAL CENTER

Washington, D.C. 20037 444 North Capitol St., N.W.

(202) 293-6400 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

* Counsel of Record for the

Amici Curiae

QUESTION PRESENTED

Whether a public utility commission’s order, directing

a public utility to include in the billing envelopes, which

are paid for by the rate-payers, rate-payer information

inserts prepared by a consumer group, offends the First

Amendment, even though the utility retains the right to

place its own inserts in the envelopes.

(i)

TABLE OF CONTENTS

| TEE

EE Ee

PME ET TE GI cccccccccnscsecccssecesosscnennesesoncoen

IIT siciesidiiditihtiseeiihciibitensenncsnseniasecenittsinticnnintnbinasinteniti

Il.

ITI.

IV.

THE CONTENTS OF BILLING ENVELOPES

ARE REGULATED BY MANY STATES IN

ORDER TO PROVIDE INFORMATION BEN-

EFICIAL TO CONSUMERS ..............02222..-........

A. Regulation of the Content of Utility Bills....

B. State-Mandated Communications Contained

ES EE Re

C. State-Mandated Notice Promoting Effective

THE COMMISSION’S ORDER DIRECTLY

SERVES THE PUBLIC INTEREST BY EN-

HANCING THE EFFECTIVENESS OF

og BE

THE PRESENCE OF THE TURN INSERT

WILL NOT FORCE PG&E TO SPONSOR

SPEECH WITH WHICH IT MAY DISAGREE..

THE COMMISSION’S ORDER DOES NOT

INFRINGE UPON ANY RIGHT OF PG&E TO

ADD ITS VOICE TO PUBLIC DEBATE........

(iii)

TABLE OF CONTENTS—Continued

V. THE COMMISSION’S ORDER DOES NOT

CONSTITUTE A “TAKING” UNDER THE

FIFTH AND FOURTEENTH AMEND-

CONCLUSION ......--0.-00+.000-22--nceresseccsesssecesnsenncsocseonsosooseses

APPENDIX

Relevant Excerpts from State Codes, Rules, and

III cece ccsccccicenrnsecenesescnsemnsnmrensensinnntnmmesins

Page

TABLE OF AUTHORITIES

CASES | Page

Agins v. City of Tiburon, 447 U.S. 255 (1980)...... 26

Andrus v. Allard, 444 U.S. 51 (1979) -................... 26

Bishop v. Wood, 426 U.S. 341 (1976) -................... 24

Board of Curators v. Horowitz, 435 U.S. 78

RRS REE ES RAR I malt =. i Rese a Oe 24

Board of Public Utility Commissioners v. New

York Telephone Co., 271 U.S. 23 (1926)........ 24

Brooklyn Union Gas Co. v. Public Service Commis-

sion, 101 A.D.2d 453, 478 N.Y.S.2d 78 (App.

Ree ee) See a Oe eee 21

Cantor v. Detroit Edison Co., 428 U.S. 579

ESE NEST SR ae ae Sede SS Ea ESO 14

Consolidated Edison Co. v. Public Service Com-

mission, 447 U.S. 5380 (1980) .................02220000.... passim

Consumers Lobby Against Monopolies v. PUC,

25 Cal.3d 891, 603 P.2d 41, 160 Cal. Rptr. 124

EAE ER CEE RA TS YO Dy eR SO a 4, 25

Erie Raitiroad v. Tompkins, 304 U.S. 64 (1938)... 24

Harris v. McRae, 448 U.S. 297 (1980) _.......0000000..... 22, 23

Kaiser Aetna v. United States, 444 U.S. 164

ETRE SPU CCR ne Ree Se So Ie SOU ee 26

Loretto v. Teleprompter Manhattan CATV Corp.,

I a iceacidies 26

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

EE a a 5, 17, 19, 20

Penn Central Transportation Co. v. New York

& § & | Fee 26

People v. Western Air Lines, Inc., 42 Cal.2d 621,

268 P.2d 723, apeal dismissed, 348 U.S. 859

RN Ee a Cee ean oO Le OS Tae 25

Pruneyard Shopping Center v. Robins, 447 U.S. 74

TEAS eee 7, 18, 20, 24, 26, 27

Regan v. Taxation With Representation, 461 U.S.

REESE ear oC FR FET AEC Ie 23

Roe v. Wade, 410 U.S. 118 (1978) ........00.0000. 22

Williamson County Regional Planning Commis-

sion v. Hamilton Bank of Johnson City, 53

U.S.L.W. 4969 (June 28, 1985) . 2.00. 26

TABLE OF AUTHORITIES—Continued

Page

Wooley v. Maynard, 430 U.S. 705 (1977) .5, 17, 18, 19, 20

Zauderer v. Office of Disciplinary Counsel, 105

I I I iss sista aca slhiindsentcestnnimncieienabegibacianatin 19, 21

ADMINISTRATIVE DECISIONS

In re: Investigation to Determine the Reasonable-

ness of Certain Practices and Charges by Pub-

lic Utilities, Case No. 19589, Annual Report of

State Corporation Commission (Jan. 10, 1977) .. 9

Pacific Gas and Electric Co., 17 C.R.C. 143

RSE NBN 6c Ree eae IN Le OO 7

Pacific Gas and Electric Co., Decision No. 82-

i ER eee ener 8

San Diego Gas and Electric Co., Decision No. 82-

Cy I Saat tbicetcccsccdecsintcintoscs 8

Slinack v. Inglewood Water Co., 3 C.R.C. 752

NS OSE ae Sos ES 7,14

CONSTITUTIONS

Cal. Const.

I a a 2,14

STATUTES

Cable Communications Policy Act of 1984

EES Ae Se ee Ne 13

gp AE ET ea 13

California Public Utilities Code

EE are re ee oe eR OO ee, ne 8

Eee eee 2,16

AE ae ee are eae mY Tere tr oe 25

Illinois Code

I 12, 16

A a ae 12

TF ETRE 12

Oklahoma Code

a Ie STE Se mA Een 9

vii

TABLE OF AUTHORITIES—Continued

South Carolina Code of Laws, Vol. 26 (1976)

R.103-330 (electric utilities)

R.103-430 (gas utilities)

Wisdonsin

STATE RULES AND REGULATIONS

Alaska

8 AAC 48.550(g) (Jan. 1985) 2...

Florida

EG TR AEE ALINE EAE se ROO A

Electric Service Chapter 25-06.100

Idaho

IDAPA 31.C (10.2)

IDAPA 31.C (10.3)

Indiana

170 IAC 4-1-18

Maine

Rules of Practice .and Procedure, Rule

SUITE -sunsuieitranctsiepesstbpeiniatanastiameaiingeinnticaen

Minnesota

Regulations of the Public Utilities Commission

§ 7820.0200 (C)

§ 7830.3200

New Hampshire

Rules, Electric Service

Rule 303.03 (e)

New Mexico

Rules and Regulations Governing Residential

Customer Services by Gas, Electric and

Rural Electric Cooperative Utilities, Gen-

eral Order No. 34 (Oct. 26, 1979)

i ee eee er reer rrr reer)

eee eee eee eee eee ee

Page

iaseiiseiobiel 9,10, 11

viii

TABLE OF AUTHORITIES—Continued

North Carolina Page

Rules and Regulations Electric Light and

Power

a ceeienion 11

Bie EAI IE Rea us 12

North Dakota

North Dakota Public Service Commission

Regulation 69-02-02.1(3) (ce) —.................. 12

Ohio

Rules of Public Utilities Commission

a eaiaupesienatieie 11

i LEST a at a ea A SD 11

Oklahoma

Electric Rules of the Oklahoma Corporation

Commission, Rule $6 .................................. 10

Oregon

Eh EN ane 16

Measure No. 3 § 10 (enacted Nov. 6, 1984) ...... 13

Washington

WAC 480-80-125 (1988)...................................... 12, 16

MISCELLANEOUS

A. Kahn, The Economics of Regulations (1971).... 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

{

No. 84-1044

PACIFIC GAS AND ELECTRIC COMPANY,

Appellant,

Vv.

PUBLIC UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA, et al.,

Appellees.

On Appeal From The Supreme Court Of California

BRIEF AMICUS CURIAE OF THE

NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY

MANAGEMENT ASSOCIATION,

THE UNITED STATES CONFERENCE OF MAYORS,

AND NATIONAL GOVERNORS’ ASSOCIATION

IN SUPPORT OF APPELLEES

INTEREST OF THE AMICI *

The amici are organizations whose members include

state, county, and municipal governments and officials

* Pursuant to Rule 36 of the Rules of this Court, the parties

have consented to the filing of this brief. Their letters of consent

have been filed with the Clerk of the Court.

throughout the United States. Amici and their members

have a vital interest in legal issues that affect the powers

and responsibilities of state and local governments.

This case presents the question whether the First

Amendment prohibits a state from directing a privately

owned public utility to include in the billing envelope,

the cost of which is paid for by the ratepayers, mate-

rials prepared by a consumer representative group. The

materials will provide information to the ratepayers that

the state public utility commission has concluded would

enhance the quality of consumer representation in rate-

making proceedings.

Constitutional issues affecting the power of govern-

ment to regulate in the public interest are of great im-

portance to amici and their members. The question in

this case is particularly important because a privately

owned public utility receives the benefits of legally man-

dated monopoly status in exchange for reasonable regu-

lation by the state. If the First Amendment were ap-

plied to limit the ability of state and local governments

to regulate such businesses, governmental efforts to as-

sure that public utilities properly serve the ratepayers

would be seriously impaired.

STATEMENT OF THE CASE

Appellee Public Utilities Commission of the State of

California (hereinafter “Commission”) is a state agency

that has been established in order to oversee the activi-

ties of utility companies that have been permitted to

operate as monopolies free from a. normal competitive

environment, see Cal. Const. Article XII, Section 6, and, ©

in general, to “supervise and regulate every public utility

in the State... .” Cal. Publ. Util. Code $ 701. Pacific

Gas and Electric Company (hereinafter “PG&E”), the

appellant, is a large California utility company that sup-

plies electricity to customers in 47 of the state’s 58 coun-

ties and gas to customers in 37 of the 58 counties. Brief

of Appellant Pacific Gas and Electric Company (herein-

after “Brief of Appellant”) at 3. Appellee, Toward Util-

ity Rate Normalization, or TURN, which initially brought

the present case, was established to represent the inter-

ests of residential consumers in proceedings before the

Commission, most notably in rate-making proceedings in

which utilities, including PG&E, apply to raise the

charges that they levy for provision of gas or electricity.

TURN v. Pacific Gas & Electric Company, Decision 83-

12-047, December 20, 1983, as modified by decision No.

84-05-039, May 2, 1984, Before the Public Utilities Com-

mission of the State of California, Appendix A, Motion

of the Public Utilities Commission of the State of Cali-

fornia to Dismiss at A-17-19 (filed March 1, 1985) (here-

inafter “Appendix A”). —

This case concerns the decision of the Commission to

provide TURN with limited access to the billing envelopes

used by PG&E. The TURN inserts will be designed to

inform consumers about TURN and to seek financial

assistance for the organization’s activities. In addition,

“[ajll of TURN’s material shall clearly identify TURN

as its source and state that its contents have neither been

reviewed or endorsed by PG&E or [the] Commission.”

Appendix A at A-39. :

The Commission’s order setting forth this requirement

recognized that the State of California has traditionally

“required the billing space to be used for the benefit of

ratepayers.” Appendix A at A-8. In the past, the state

had mandated that billing envelopes contain information,

including notices of proposed rate increases and of pub-

lic hearings, designed to further effective regulation. Ap-

pendix A at A-7. The inclusion of the TURN insert

serves the same purpose.

In addition, the Commission had determined in a prior

proceeding that the “extra space” in the envelope is “the

property of ratepayers.” Id. at A-6; see id. at A-15. Ex-

tra space is “the space remaining in the billing envelope,

after inclusion of the monthly bill and any required legal

notices, for inclusion of other materials up to such total

envelope weight as would not result in any additional

postage cost.” Jd. at A-3. Consistent with its under-

standing that the extra space belongs to the ratepayers,

the Commission recognized that “a utility in another state

has sold the extra space for commercial advertising un-

related to the utility’s business and used the resulting

revenues to reduce rates to customers” rather than re-

mitting those profits to its shareholders. Id. at A-8.

Finally, the Commission concluded that its work would

be aided by inclusion of a billing insert that permits

TURN to communicate with ratepayers. The Commission

found that “there are many positions which TURN takes

regarding PG&E that would be shared by substantially

all [residential] ratepayers,” id. at A-18, and that

TURN’s participation in Commission proceedings pro-

vides valuable assistance to the Commission. The Com-

mission explained that such participation “tends to en-

hance the record in our proceedings.” Jd. at A-19 (quot-

ing Center for Public Interest Law and Robert L. Sim-

mons v. San Diego Gas & Electric Company, D.83-04-020,

7-8 (April 6, 1983)). Although the staff of the Commis-

sion has the primary responsibility for representing the

public interest in rate proceedings, only consumer groups

—unlike the staff—have the power to seek rehearing and

judicial review of Commission orders, and such groups—

also unlike the staff—will not be “subject to institutional

pressures that can create conflicts of interest.” Jd. at

A-20 (quoting Consumers Lobby Against Monopolies v.

PUC, 25 Cal.3d 891, 908 (1979) ). Accordingly, the Com-

mission concluded that use of the extra space in order to

assure that “residential ratepayers in PG&E’s service ter-

ritory would be given an opportunity to be informed of

and to support advocacy efforts on their behalf” would

be “an appropriate and efficient use of the extra space,”

id. at A-21, that would benefit the ratepayers. Jd. at

A-22.

The Commission ordered that TURN be given “access

to the extra space in the billing envelope four times a

year for the next two years.” Id. During that time,

PG&E will remain free to enclose its own bill inserts

into the envelope. It will have the exclusive right

to do so in eight months of every year and it “may also

make use of any of the extra space not used by TURN

during the months TURN’s material is inserted.” Jd.

Nothing in the Commission’s order prevents PG&E from

sending bill inserts in the same envelope even if there is

no extra space in those months so long as the utility pays

any additional postage required by the presence of its

insert.

SUMMARY OF ARGUMENT

PG&E presents an unconvincing argument to this

Court. In the utility’s view, the Commission has ordered

it to yield its exclusive dominion over the billing enve-

lope and ordered it to carry a message with which it

may not agree. Thus, PG&E analogizes itself to the

Jehovah’s Witness who was forced to display on his

automobile an ideological slogan with which he did not

agree, see Wooley v. Maynard, 430 U.S. 705 (1977),

or a newspaper forced to include statements of third

parties among its editorial contents, see Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974). See,

e.g., Brief of Appellant at 9-10, 14.

The position taken by PG&E before this Court is not

tenable. First, the billing envelope has never been

treated as the exclusive preserve of PG&E. Rather, in

California, as in many other states, the billing envelope,

and indeed the bill itself, has been closely regulated by

the state in order to assure that consumers receive in-

formation necessary to their interests. Most notably,

other states require that consumers be informed of the

means by which they may participate effectively in reg-

ulatory proceedings. The Commission’s order in this case

carries on that tradition.

Second, the state interest in permitting TURN access

to the billing envelope is legitimate and it is weighty.

Unlike most businesses, PG&E operates a legally-man-

dated monopoly. The effect of this monopoly grant is,

of course, to shelter the utility from the normal price

competition of the marketplace. The Commission has the

responsibility to regulate rates and it can better do so

if TURN, which has a proven record of participation in

Commission proceedings, is able to explain to ratepayers

that it is available to represent their interests before the

Commission. TURN not only aids ratepayers but, more

to the point, its presence aids the Commission in effec-

tively regulating utility monopolies.

Third, the inclusion of TURN’s message will not force

PG&E to be associated with TURN’s speech. Precisely

because billing envelopes have traditionally served as a

means of communicating messages of interest to rate-

payers, the TURN message will be recognized as another

statement included in the billing envelope for the public

benefit. No reasonable ratepayer will assume from the

presence of the TURN insert that PG&E has associated

itself with TURN’s desire to monitor utility activities.

Indeed, the Commission’s order requires TURN to iden-

tify itself as the source of its inserts, and to state that

their contents have been neither reviewed nor endorsed by

PG&E or the Commission itself. Moreover, the Commis-

sion order does not require that PG&E yield any dominion

over its own inserts; the utility must only continue the

practice of sharing space in the billing envelope.

Fourth, the sole impact on PG&E may be that it is

sometimes forced to pay for its own speech. If the

TURN insert occupies all of the extra space, then

PG&E will have to pay for additional postage required

by its insert. But such a rule infringes no First Amend-

ment interest. The rule that a state cannot bar a public

utility from speaking, Consolidated Edison Co. v. Public

Service Commission, 447 U.S. 580 (1980), does not pre-

vent a state from restricting the extent to which a public

utility’s speech is subsidized by ratepayers.

Fifth, the Commission’s order does not constitute the

“taking” of property without just compensation. The

extra space belongs to the ratepayers, and even PG&E

concedes that it can be forced to pay for the use of that

space. Moreover, even if the extra space belonged to

PG&E, the taking issue would not be ripe for review

because the Commission order leaves open the possibility

that PG&E will be able to use the billing envelope in

precisely the manner it wishes. In any event, and under

any circumstances, the Commission’s order would not

infringe property interests so severely as to justify the

conclusion that its order constitutes a taking. See Prune-

yard Shopping Center v. Robins, 447 U.S. 74 (1980).

ARGUMENT

I. THE CONTENTS OF BILLING ENVELOPES ARE

REGULATED BY MANY STATES IN ORDER TO

PROVIDE INFORMATION BENEFICIAL TO CON-

SUMERS

PG&E contends that it has traditionally “exercised

discretion in selecting the content of its billing envelope.”

Brief of Appellant at 11. This assertion is, at best; mis-

leading because PG&E fails to explain that the Commis-

sion traditionally has overseen the contents of the billing

envelope.

The historical practice in California confirms this tra-

dition. In 1913, the Commission’s predecessor ordered a

water company to inform its customers of the amount of

water used each month “and of the rate and amount to

~~ paid.” Slinack v. Inglewood Water Co., 3 C.R.C. 752,

757 (1913). Six years later, the Commission adopted

rules governing electrical service and ordered that each

electric bill reprint the regulations “regarding payment

of bills, disputed bills and discontinued service.” Pacific

Gas and Electric Co., 17 C.R.C. 148, 147 (1919).

The Commission’s authority has not been limited to

regulation of the bill itself. In 1982, the Commission

ordered PG&E to “mail to all its customers a bill insert

which describes the components of the utility’s costs”

and required PG&E to submit the insert to its Executive

Director for approval “prior to inclusion with any cus-

tomer’s bill.” Appendix B, Appendices to Respondents’

Answer to Petitions for Review, S.F. Nos. 24734, 35&37

(Filed July 19, 1984) (quoting Application of Pacific Gas

and Electric Company, Decision No. 93887 (Dec. 30,

1981) ). The Commission also has required that bill in-

serts be placed in the billing envelope “explaining the

reasons behind [a] rate increase,” Pacific Gas and Elec-

tric Co., Decision No. 82-04-117 (April 28, 1982), slip op.

at 21; and describing the components of utility costs, San

Diego Gas and Electric Co., Decision No. 82-03-073

(March 16, 1982), slip op. at 1, 2.

In addition, California has enacted legislation that re-

quires certain information to be furnished to utility

customers. Section 454 of the California Public Utilities

Code requires each utility that proposes a rate increase

to notify its customers of the proposal. The statute con-

templates that the notice will be inserted in bill envelopes

and requires that it “shall state the amount of the pro-

posed increase expressed in both dollar and percentage

terms, a brief statement of the reasons the increase is

required or sought, and the mailing address of the com-

mission to which any customer inquiries relative to the

proposed increase . . . may be directed.”

Regulation of the content of the utility’s bills and man-

dated inclusion of bill inserts is by no means confined to

_ California. As the following discussion demonstrates,

many states have concluded that utilities must provide

ratepayers with information necessary to permit their

customers to monitor and, when necessary, to object to

utility activities and proposals.

A. Regulation of the Content of Utility Bills

States across the nation dictate to utilities the infor-

mation that must be disclosed on customers’ bills. For

example, the Virginia Corporation Commission requires

that before a late payment may be charged to a rate-

payer a utility must “show on its customer bill, in addi-

tion to other necessary information, the date on which

the bill is delivered to the U.S. mail, or delivered to the

customer’s premises, together with showing the date by

which payment must be received in the utility’s offices to

avoid late payment charges.” In re: Investigation to

Determine the Reasonableness of Certain Practices and

Charges by Public Utilities, Case No. 19589, Annual Re-

port of State Corporation Commission (Jan. 10, 1977).

Florida requires that bills for electric service contain a

series of specific statements designed to assist the rate-

payer. They include: (i) kilowatt-hours consumed, (ii)

the customer charge, (iii) a breakdown of the charges

due, (iv) identification of the applicable rate schedule,

and (v) the average daily kilowatt consumption “for the

current period and for the same period in the previous

year.” Electric Service Chapter 25-06.100. Similar re-

quirements are in effect in Alaska,’ Idaho,? New Mexico,’

and Oklahoma.‘ ;

? See 3 AAC 48.550(g) (Jan. 1985) (“Customer bills must, at a

minimum, separately identify the following information for the

billing period: customer charges; total kilowatt-hour consumption

and associated energy charges; monthly kilowatt maximum demand

and associated demand charges; and the energy surcharge, if ap-

propriate. If billing is based upon an estimate, the customer bill

must also reflect this information” ) .

2 See IDAPA 31.C $10.3 (requiring each gas and electric bill to

show a comparison between current consumption and consumption

in the same period a year earlier).

®See Rules and Regulations Governing Residential Customer

Services By Gas, Electric and Rural Electric Cooperative Utilities,

General Order No. 34, Section 2.3 (Oct. 26, 1979) (requiring dis-

closure of sixteen specified items).

* See Oklahoma Code Title 17, Section 254 (“each public utility

subject to a fuel adjustment clause shall separately disclose in its

Regulation of bills has also been undertaken in order

to assure that ratepayers have the information necessary

to challenge utility actions. In Minnesota, for example,

gas and electric utilities must include on their bills either

(i) a statement informing customers “where the customer

may initiate an inquiry or a complaint” or (ii) “a con-

cise statement as to where such information can be ob-

tained.” Section 7820.0200(C), Regulations of the Pub-

lic Utilities Commission. Similarly, the New Mexico Pub-

lic Service Commission requires gas and electric utilities

in that state to include in their bill an address “where the

residential customer may initiate an inquiry or complaint

regarding the bill as rendered or the service provided.”

Section 2.3(0), General Order No. 34, supra.

B. State-Mandated Communications Contained in

Billing Envelopes

State regulation does not extend only to the utility

bill itself. Rather, a number of states, like California,

have mandated that utilities supply their consumers with

information that, in the state’s view, will further the

regulatory process. Often, such information may—or

must—be communicated by means of a bill insert. Indeed,

the presence of legally-mandated notices in billing en-

velopes appears to be so noncontroversial that the Cali-

fornia Public Utilities Commission has defined “extra

space” in the billing envelope as that space left unused

after the inclusion of the bill and required legal notices.

See text at 3-4 supra. PG&E’s failure to quarrel with

that definition indicates that it too recognizes the legiti-

macy of state-mandated bill inserts.

States commonly require that utilities inform their cus-

tomers of proposed rate increases. In North Carolina,

customer bills the per unit cost of its fuel, purchased power or

purchased gas adjustment.”) ; Rule 35, Electric Rules of the Okla-

homa Corporation Commission (requiring eleven specified items of

information) .

each electric utility that files an application with the

Utilities Commission for a change in its rates must “pro-

vide a bill insert notifying its customers of such appli-

cation...” Rule R8-49, Rules and Regulations, Electric

Light and Power. The “form of such notices will be sup-

plied to the utility by the Commission” and will normally

contain five specific categories of information including a

schedule of public hearings. Jd. The Maine Public Utili-

ties Commission has also required utilities to include no-

tice of proposed rate increases in billing envelopes. See

Rule 6(B) (1) (b), Rules of Practice and Procedure (no-

tice of permanent rate increase). Ohio’s Rules of Public

Utilities Commission, §§ 4909.191(A) and 4901:1-11.10(c),

also mandate such notice.

Other states require that such notice be given to each

customer although they do not mandate that a utility in-

clude the notice in the billing envelope. Idaho, for ex-

ample, provides that notice of proposed rate increases

“may be mailed to customers as bill stuffers over the

course of a billing cycle.” IDAPA 31.C § 10.2. States

with similar requirements include Florida, see Section

25-22.406, supra; Minnesota, see Section 7830.3200; In-

diana, 170 IAC 4-1-18; and South Carolina, see South

Carolina Code of Laws, Vol. 26 R. 103-330 (code § 53-

3-140) (1976) (electric utilities); id. at 103-430 (gas

utilities) .

Similarly, some states require that utilities send annual

messages to consumers. In New Mexico, utilities are re-

quired to provide their customers annually with a state-

ment, which may be enclosed in the billing envelope, “that

summarizes the rights and responsibilities of the utilities

and its residential customers .. . .,” Section 4.3, General

Order No. 34, supra. North Dakota utilities must insert

into their bills an annual statement that (i) summarizes

the existing rate schedule applicable to major classes of

customers, (ii) identifies any classes whose rates are not

summarized, and (iii) gives “notice calling the attention

of the customers to the availability of alternative rate

schedules . . . .” Regulation 69-02-02.1(3) (c), North

Dakota Public Service Commission. North Carolina re-

quires that each utility provide an annual “breakdown of

its operating expenses” and permits that information to

be conveyed by means of a bill insert. R8-50.

C. State-Mandated Notice Promoting Effective Citizen

Participation

At least five states require utilities to inform consum-

ers how they may seek assistance to contest utility ac-

tions. In the State of Washington, notices of proposed

rate increases must be sent to each customer either in a

bill insert or in a separate mailing. That notice must

“contain the information that a public counsel will be

appointed to represent the public’ and must include the

address of the public counsel. WAC 480-80-125 (1983).

Similarly, New Hampshire requires each electric utility

to transmit as a bill enclosure an annual statement to

consumers that includes the telephone number of the con-

sumer assistant at the state Public Utilities Commission.

See Rule 303.03(e), Rules, Electric Service.

Three states, Illinois, Oregon and Wisconsin, have cre-

ated citizens utility boards to participate in the regula-

tory process and have empowered those boards to insert

messages in billing envelopes. For example, Illinois’

Citizens Utility Board represents consumer interests be-

fore the Illinois Commerce Commission, which regulates

utility rates. Ill. Code, Chapter 11134, Section 902. By

statute, the Citizens Utility Board is empowered to pre-

pare bill inserts that inform consumers of the Board’s

purpose and activities. Jd. at Section 909. No more than

four such inserts may be included in a customer’s billing

envelope in any one year. Jd. at Section 909(2) (b).

By voter initiative, the people of Oregon have estab-

lished a Citizens Utility Board to represent consumer

interests and have empowered the Board, like its Illinois

counterpart, to include consumer materials in billing en-

velopes. Section 10, Measure No. 3 (enacted Nov. 6,

1984). And Wisconsin’s Citizens Utility Board is per-

mitted to send two bill inserts annually that inform con-

sumers of its activities. Wis. Stat. § 199.10(2) (b).

These widespread practices demonstrate that states

across the nation have recognized that effective regula-

tion requires that consumers be informed of essential

facts concerning the activities of regulated monopolies.

Those facts include, as an inherent part of regulation,

information alerting consumers to the means by which

they may question or challenge utility action. None of

these requirements limits the ability of public utilities to

add their voices to political or social debate, see Con-

solidated Edison Co. v. Public Service Commission, 447

U.S. 530 (1980), but all of the regulations recognize that

utilities cannot be relied upon voluntarily to supply their

customers with all needed information. State-mandated

disclosures within billing envelopes are a well-established

and traditional means of accomplishing legitimate regula-

tory goals. A decision that such regulation is unconstitu-

tional would seriously impede the ability of states to en-

sure that regulated monopolies are acting in the public

interest.*

5 The federal government has also recognized the propriety of

state regulation that requires government-sanctioned monopolies

to carry the speech of third persons. The Cable Communications

Policy Act of 1984 authorizes local governments to require “that

channel capacity [of cable systems] be designated for public, educa-

tional, or governmental use... .” 47 U.S.C. § 531(b). Although

those channels will be operated by the local cable system and broad-

cast over its equipment, the statute specifically states that the cable

operator “shall aot exercise any editorial control” over such chan-

nels. Jd. at $ 531(e).

II. THE COMMISSION’S ORDER DIRECTLY SERVES

THE PUBLIC INTEREST BY ENHANCING THE

EFFECTIVENESS OF UTILITY REGULATION

The TURN insert supports the valuable contribution

TURN makes to regulatory efforts. As the survey of

state regulation indicates, see text at 9-13, supra, the

unusual economic position of public utilities requires spe-

cial surveillance of their relationships with their cus-

tomers. Often, this surveillance takes the form of re-

quirements that utilities disclose specific information as

in, for example, the multiple state regulations mandating

the disclosure of pending ratemaking proceedings. The

state interest is not exhausted, however, when some infor-

mation regarding a utility’s plans is disclosed. Rather,

the state has an important interest in ensuring the dis-

closure of all information that will assist a public utility

commission in carrying out its duty to regulate utilities in

the public interest. The TURN insert, which reveals the

existence of an organization able to intervene in commis-

sion proceedings on behalf of consumer interests, directly

promotes effective regulation.

The legitimacy of the Commission’s order cannot be

isolated from the regulatory environment in which it will

be implemented. Public utilities like PG&E are regulated

monopolies shielded from the rigors of competition. See

A. Kahn, The Economics of Regulations, 114-15 (1971).

Because the marketplace provides no restraint on their

pricing behavior, public utilities would inevitably engage

in monopolistic pricing if they were not restrained by

some non-market mechanism. See Cantor v. Detroit Edi-

son Co., 428 U.S. 579, 595-96 (1976); see also Slinack v.

Inglewood Water Co., 3 C.R.C. at 755-56 (manager of

water company “admitted, under oath, that the company’s

conduct towards the public would be very different if

the company were subject to competition.”) California,

like states across the nation, has decided to invest its

public utilities commission with the legal authority to set

utility prices in the public interest. See Cal. Const. Art.

XII, Section 6, Cal. PUC Code Section 701.

15 ‘

As Justice Blackmun has noted, the existence of the

monopoly grant “justifies extensive oversight on the part

of the State to protect the ratepayers from exploitation

of the monopoly power through excessive rates and other

forms of overreaching.” Consolidated Edison Co. v. Pub-

lic Service Commission, 447 U.S. at 550 (dissenting opin-

ion). The ability of the Commission to exercise its over-

sight responsibilities when it considers proposed rate in-

creases necessarily depends on its ability to discern the

bases of a utility’s proposals and, if necessary, to expose

flaws in the utility’s reasoning. The staff of the Commis-

sion is empowered to carry out those duties. But the

Commission has recognized that the presence of an ad-

versary who has no regulatory responsibility may sharpen

the issues and, as the Commission noted, “enhance the

record” in regulatory proceedings. Appendix A at A-19.

Because there are no competitors to oppose a utility’s

actions, and because residential consumers often lack the

sophistication and technical expertise to challenge com-

plex utility applications, the Commission recognized that

TURN would be able to contribute to regulatory proceed-

ings the kind of adversariness that our legal tradition has

always understood to bring more reliable results in legal

proceedings.

The desire to ensure greater accuracy in legal proceed-

ings is obviously a legitimate state goal. And the means

the Commission has selected is closely related to the at-

tainment of that state interest. The TURN insert will

permit that organization to inform consumers of its funce-

tion and activities and allow it to solicit funds with which

it will be able to participate in regulatory proceedings.

The inclusion of the TURN insert in the billi g envelope

will thus enable TURN to communicate effectively with

consumers and will increase the quality of its representa-

tion. Because TURN has the expertise and background

to enable it to serve consumer interests, the Commission

correctly understood that inclusion of the TURN insert

in billing envelopes would enhance the quality and effec-

tiveness of the Commission’s own actions.

This judgment is shared by other jurisdictions. The

State of Illinois has established a Citizens Utility Board,

with power to send bill inserts to ratepayers, in order

“to promote the health, welfare, and prosperity of all of

the citizens of this State by ensuring effective and demo-

cratic represertation of utility consumers before the IIli-

nois Commerce Commission,” other administrative agen-

cies and the courts. Ill. Code, Public Utilities, Chapter

111°4, Section 902. The Illinois legislature has ex-

pressly labeled this goal as “a statewide interest and not

a private or special concern.” Jd. The State of Washing-

ton requires that ratepayers be informed of pending rate

increases and be provided with the address of a public

counsel in order that “the customer is able reasonably to

make an informed decision about whether to participate

in the hearing process.” WAC 480-80-125. In 1984, the

State of Oregon established a citizens utility board be

cause the “people of Oregon [found] that utility con-

sumers need an effective advocate to assure that public

policies affecting the quality and price of utility service

reflect their needs and interests . . .” Measure No. 3,

supra, section 1. Moreover, “utility consumers need a

convenient manner of contributing to the funding of such

an organization so that it can advocate forcefully and

vigorously on their behalf concerning all matters of pub-

lic policy affecting their health, welfare and economic

weil-being.”” Id.

The record before this Court is clear. The Commis-

sion’s order is a carefully-tailored means of accomplish-

ing an important state goal. As we demonstrate herein,

see Parts III and IV, infra, the requirement that TURN’s

insert be carried, along with other legally-mandated no-

tices, in the billing envelope infringes no First Amend-

ment interest of any utility. Accordingly, the grounds

asserted by PG&E in its appeal from the Commission

order provide no basis for reversal of that state judg-

ment.

Ill. THE PRESENCE OF THE TURN INSERT ‘WILL

NOT FORCE PG&E TO SPONSOR SPEECH WITH

WHICH IT MAY DISAGREE

The California Commission has ordered that, during a

two-year experimental period, TURN will be permitted

to include its inserts within billing envelopes four times

a year. The order is wholly consistent with this Court’s

decision in Consolidated Edison Co. v. Public Service

Commission, 447 U.S. 530 (1980), which concerned an

attempt by a public utility commission to prohibit public

utilities from using bill inserts to discuss political mat-

ters. This Court held that such an order was unconstitu-

tional because it impermissibly restricted the utility’s

ability to speak on issues of public importance.

In this case, by contrast, PG&E remains free to speak

through its news letter, Progress, about any issues of its

concern. The argument presented by PG&E to this Court,

therefore, is not primarily that the California order vio-

lates Consolidated Edison, but rather that the order con-

flicts with this Court’s decisions that limit the ability of a

state to force a person or newspaper to sponsor speech

with which he or she may disagree. See Wooley v. May-

nard, 430 U.S. 705 (1977); Miami Herald Publishing

Co. v. Tornillo, 418 U.S. 241 (1974). A close examina-

tion of those cases and this Court’s subsequent treat-

ment of them demonstrates, however, that the Commis-

sion’s order impinges no First Amendment interest.

The Miami Herald case brought before this Court a

state statute that guaranteed a political candidate the

right to reply in a newspaper’s pages to any criticism

levied at him or her by that newspaper. The Court held

that the statute violated the First Amendment right oi

the newspaper to determine for itself the content of its

news and editorial pages. As the Court explained, the

“choice of material to go into a newspaper, and the deci-

sions made as to limitations on the size and content of the

paper, and treatment of public issues and public officials

—whether fair or unfair—constitute the exercise of edi-

torial control and judgment.” Jd. at 258. Editorial dis-

cretion cannot be restricted because, although a “responsi-

ble press is an undoubtedly desirable goal, . . . press re-

sponsibility is not mandated by the Constitution and like

many other virtues it cannot be legislated.” Jd. at 256.

Wooley v. Maynard concerned the exercise of an indi-

vidual’s First Amendment rights. A New Hampshire law

required residents to display on their automobiles a license

plate carrying the inscription “Live Free or Die.” For

religious reasons, a state resident objected to the pres-

ence of the slogan on his automobile. This Court ruled

the law unconstitutional because the state mandate

“forces an individual, as part of his daily life—indeed

constantly while his automobile is in public view—to be

an instrument for fostering public adherence to an ideo-

logical point of view he finds unacceptable.” Jd. at 715.

Two more recent decisions of this Court have demon-

strated, however, that in certain circumstances states

may mandate access to means of communication or re-

quire disclosure by a public speaker without running

afoul of the First Amendment. In Pruneyard Shopping

Center v. Robins, 447 U.S. 74 (1980), decided the same

term as Consolidated Edison, the Court held that the

State of California did not violate the First Amendment

by forcing the owner of a shopping center to permit a

youth group to hand out pamphlets and collect signatures

within the shopping center. The Court distinguished

Wooley because, inter alia, in the context of a shopping

center the “views expressed by members of the public

in passing out pamphlets or seeking signatures for a

petition . .. will not likely be identified with those of

the owner.” Jd. at 87. The Court similarly distinguished

Miami Herald because that case “rests on the principle

that the State cannot tell a newspaper what it must

print,” id. at 88, a concern not present in Pruneyard.

Recently, this Court discussed Wooley and Miami Her-

ald in the context of commercial advertising. The Court

held that a state may require an attorney to disclose in

his or her advertisements certain information concern-

ing the prosecution of a civil claim on a contingency

basis. Zauderer v. Office of Disciplinary Counsel, 105

S.Ct. 2265, 2283 (1985). In so holding this Court recog-

nized that “First Amendment interests implicated by

disclosure requirements are substantially weaker than

those at stake when speech is actually suppressed ... .”

Id. at n. 14.

Taken as a whole, these cases demonstrate that the

California order is wholly consistent with the First

Amendment. First, PG&E, unlike the Miami Herald,

is not being forced to include within its own speech the

views of another. PG&E would have this Court believe

that it will be compelled to “publish” the speech of third

persons. Brief of Appellant at 10. But the California

order does not compel PG&E*to include TURN’s message

as part of its own insert. Rather, PG&E is ordered only

to share with TURN—as it currently shares with other

legally-mandated notices—the extra space available in the

billing envelope. Indeed, because that extra space is

owned by the ratepayers, the utility has no right to exer-

cise editorial dominion over it. PG&E’s editorial discre-

tion is thus left unhampered.

Second, PG&E is not a newspaper whose ability to

speak may be threatened by state action. As Justice

White pointed out in his Miami Herald concurrence, a

“newspaper or magazine is not a public utility subject

to ‘reasonable’ governmental regulation in matters af-

fecting the exercise of journalistic judgment as to what

shall be printed.” 418 U.S. at 259. But PG&E is a pub-

lie utility that, like utilities across the nation, is subject

to reasonable regulation mandating the provision of

specified information to its customers. As in Pruneyard,

therefore, the concerns that underlie the decision in

Miami Herald “obviously are not present here.” 447

USS. at 88.

Third, there is no danger that the presence of the

TURN insert will confuse consumers and cause them to

believe that PG&E is “an instrument” for the consumer

group’s message. Wooley v. Maynard, 430 U.S. at 715.

The TURN insert will be labeled expressly as such. Ap-

pendix A at A-39. Moreover, the longstanding practice

in California is that billing envelopes serve as conduits

of information. That practice is echoed across the nation.

Utility customers understand, therefore, that the in-

formation contained within the billing envelope does not

necessarily reflect the views of the utility. In these cir-

cumstances, the holding in Pruneyard is entirely applica-

ble because, as in that case, the views expressed in the

TURN insert “will not likely be identified” with PG&E.

447 US. at 87.

This Court’s decision in Consolidated Edison directly

supports the conclusion that consumers will be able to

comprehend the true sponsor of the TURN message. In

Consolidated Edison, the public utility commission argued

that a prohibition on bill inserts was needed in order to

protect the privacy rights of customers. But this Court

understood that consumers were perfectly able to recog-

nize a utility insert for what it was and to act accord-

ingly. As the Court said, “the customer of Consolidated

Edison may escape exposure to objectionable material

simply by transferring the bill insert from envelope to

wastebasket.” 447 U.S. at 542. There is no reason to

believe that customers in California will be less discern-

ing. Just as customers of Consolidated Edison could

recognize the difference between the bill itself and the

utility’s political speech, so customers in California will

be able to distinguish between the utility’s own mnaeets

and the message transmitted by TURN.

Fourth, as in Zauderer, the TURN insert is merely a

form of legally-required disclosure that directly serves

the regulatory process. The constitutionality of such

disclosure in the field of utility regulation was recently

upheld by a New York court. Brooklyn Union Gas Co. v.

Public Service Commission, 101 A.D.2d 453, 478 N.Y.S.

2d 78 (App. Div. 1984). That case concerned a utility

commission order that natural gas utilities must include

a disclosure in any promotional advertisement, stating

that natural gas prices might be affected by deregula-

tion and including a telephone number from which fur-

ther information could be obtained. The court ruled that

the disclaimer was not needed to prevent deceptive com-

mercial speech, id. at 83, but nonetheless held the re-

quirement constitutional. In so holding, the court rec-

ognized the substantial state interest in ensuring the

provision of “complete information to consumers... .”

Id. at 83.

Like the New York regulation, the Commission’s order

is intended not to eliminate deception in commercial

speech, but to assist the regulatory process and to assure

a fuller record on which the Commission can base its

ratemaking orders. The TURN insert will accompany

the utility bill, which is a form of commercial speech, and

TURN’s activities will be focused on the purely commer-

cial activities of public utilities. Indeed, the intrusion on

the utility here is substantially less severe than that ap-

proved in Zauderer because the required disclosures will

appear in a separate insert and will not occupy any

space purchased by the utility itself.

In sum, the Commission orders do not violate the First

Amendment. PG&E will not be forced to “publish” any

views, much less the views of anyone with whom it may

disagree. The California order merely utilizes the billing

envelope in the manner in which it has been tradition-

ally used: to convey information to ratepayers that, in

the state’s view, will assist effective regulation. Cali-

fornia consumers, familiar with the usual uses of bill-

ing envelopes, will not confuse TURN’s message with the

speech contained in PG&E’s own inserts. In these cir-

cumstances, no constitutionally-protected interest will be

impaired.

IV. THE COMMISSION’S ORDER DOES NOT INFRINGE

UPON ANY RIGHT OF PG&E TO ADD ITS VOICE

TO PUBLIC DEBATE

The effect of the Commission’s order is quite limited.

During an experimental two-year period, TURN will be

able to place an insert in billing envelopes four times

per year. In the other months, PG&E is guaranteed

the ability to place its inserts in the billing envelope as

it has in the past. In months when the TURN insert

is in the envelope, PG&E will be able to use any extra

space that remains. Even if no extra space is available,

PG&E will still be able to place its inserts in the enve-

lope. It will simply have to pay the additional postage

required.

Prior to the issuance of this order, California utilities

have sent their inserts free of charge, because the rate-

payers pay for the postage required to send the billing

envelope, and the utilities have used the extra space con-

tained therein. Appendix A at A-3. If the time ever

comes when the presence of the TURN insert requires

PG&E to pay for postage in order to include its own

insert, then the Commission order may have the effect

of limiting the extent to which the ratepayers of Cali-

fornia subsidize the utility’s speech. This limitation, how-

ever, does not constitute the restriction of a constitu-

tional right.

The distinction between a constitutional right and the

asserted right to a subsidy is well illustrated by the hold-

ings of this Court in Roe v. Wade, 410 U.S. 113 (1973)

and Harris v. McRae, 448 U.S. 297 (1980). In Roe v.

Wade, the Court held that a woman has a constitutional

right to obtain an abortion. In Harris v. McRae, the

Court held, however, that the right to an abortion does

not require the government to pay for an abortion. The

Court explained that although “the liberty protected by

the Due Process Clause affords protection against un-

warranted government interference with freedom of

choice in the context of certain personal decisions, it does

not confer an entitlement to such funds as may be neces-

sary to realize all of the advantages of that freedom.”

448 U.S. at 317-18. The government may choose to fund

the exercise of that right, but it is not constitutionally

compelled to do so. Jd. at 318; see Regan v. Taxation

with Representation, 461 U.S. 540, 545-46 (1983).

The distinction between a right and the government’s

discretion whether to offer financial support for exercise

of that right is the distinction between Consolidated Edi-

son and this case. In Consolidated Edison, this Court

struck down a New York prohibition that limited utility

speech even if the utility paid for its speech in full. 447

U.S. at 543. By contrast, the Commission’s order leaves

PG&E free to use the billing envelope to speak any time

it wishes. The mere fact that the Commission will not per-

mit the utility to claim an exclusive right to a govern-

ment subsidy infringes no legitimate First Amendment

interest.

Vv. THE COMMISSION’S ORDER DOES NOT CONSTI-

TUTE A “TAKING” UNDER THE FIFTH AND

FOURTEENTH AMENDMENTS

Some amici have argued that the Commission’s order

is unlawful because it constitutes a “taking” of property

without just compensation in contravention of the Fifth

Amendment, as incorporated by the Fourteenth Amend-

ment. PG&E has wisely chosen not to assert that con-

tention before this Court, perhaps because it recognizes

that, for the following reasons, the Fifth Amendment

issue is entirely lacking in merit.

First, no property interest of PG&E can possibly be

infringed by the Commission’s order because the extra

space in the envelope does not belong to PG&E. The

Commission has found in at least two proceedings that

the extra space in which the insert would be placed “is

ratepayer property.” Appendix A at A-3; id. at A-4, A-6.

This Court has held that the sufficiency of a claimed

property interest ‘must be decided by reference to state

law.” Bishop v. Wood, 426 U.S. 341, 344 (1976); see

Pruneyard Shopping Center v. Robins, 447 U.S. at 84;

Board of Curators v. Horowitz, 435 U.S. 78, 82 (1978).

This Court will not, therefore, overturn a “tenable” in-

terpretation of state law finding that no property inter-

est exists. Bishop v. Wood, 426 U.S. at 347.

In this case, the Commission’s interpretation is ob-

viously more than tenable. The Commission reached its

conclusion in a previous proceeding, and it reaffirmed the

principle in the proceeding below. Appendix A at A-3.

The Commission’s conclusion rests on the ground that

ratepayers are legitimately charged for mailing costs and

the extra space is, therefore, “an artifact generated with

ratepayer funds .. .” Appendix A at A-4. A contrary

result would confer upon PG&E “a benefit beyond the

mailing expense legitimately recoverable from the rate-

payers.” Id.

No decision of this Court requires any other conclu-

sion. Although the Consolidated Edison opinion states

that the utility in that case wished “to utilize its own

billing envelopes to promulgate its views,” 447 U.S. at

540, the Court was merely describing the property inter-

ests as they may have appeared in the record of that

case. Nothing in the Court’s decision suggests it was es-

tablishing a general principal of federal property law

decreeing that all billing envelopes in all states must be-

long to utilities. Similarly, the Court’s opinion in Board

of Public Utility Commissioners v. New York Telephone

Co., 271 U.S. 23 (1926), which preceded Erie Railroad v.

Tompkins, 304 U.S. 64 (1938), by twelve years, does

not restrict California’s ability to apply its own property

law to PG&E.

Second, any claim that the extra space is not owned by

the ratepayers is barred by principles of res judicata.

The Commission’s initial determination that the extra

space belongs to ratepayers was not appealed by PG&E.

See Motion to Dismiss of the Public Utilities Commission

of the State of California, No. 84-1044 at 8 (March 1,

1985). Accordingly, that question of state law may not

be relitigated in this case. See Consumers Lobby Against

Monopolies v. PUC, 25 Cal.3d 891, 901, 603 P.2d 41,

47, 160 Cal. Rptr. 124, 129 (1979); People v. Western

Air Lines, Inc., 42 Cal.2d 621, 630, 268 P.2d 723, 728,

appeal dismissed, 348 U.S. 859, 860 (1954); see also

Cal. Pub. Util. Code § 1709.

Third, PG&E in effect has conceded that it has no

property interest that will be impaired by the Commis-

sion’s order. In a pleading before this Court, PG&E has

suggested that the state could, as an alternative course of

action, “[a]sses[s] an economic value and charge] ap-

pellant for the value of the space... .” Appellant’s

Brief in Opposition To Motions To Dismiss at 2 n.2; see

id, at 3 & n.3; see also Brief of Appellant at 39. If

PG&E can be charged for its use of billing envelope

space, then the only possible conclusion is that the extra

space does not belong to PG&E. Even without determin-

ing whether the ratepayers own the extra space, there is

no cause to conclude, in the face of PG&E’s own state-

ments, that the utility’s property interest will be im-

paired in any way.

Fourth, even if PG&E owned the extra space, the

record before this Court would not support a decision

that the Commission’s order constitutes a taking.

That order permits TURN to place its insert in billing

envelopes four times a year during a two-year experi-

mental period. Although the TURN inserts will have

priority over PG&E inserts, it remains uncertain whether

any TURN insert will occupy all of the available extra

space. Absent such an eventuality, a time may never

come during the two-year experimental period when

PG&E is prevented from using its property in exactly

the manner it wishes In these circumstances, “there is

as yet no concrete controversy” that can be decided by

this Court. Agins v. City of Tiburon, 447 U.S. 255, 260

(1980) ; see Williamson County Regional Planning Com-

mission v. Hamilton Bank of Johnson City, 53 U.S.L.W.

4969 (June 28, 1985).

Fifth, this Court’s decision in Pruneyard Shopping

Center v. Robins requires the conclusion that, even if

PG&E owned the extra space, and even if the taking is-

sue were ripe for review, the Commission order is con-

stitutional. In Pruneyard, this Court held that a Cali-

fornia law mandating that pamphleteers be permitted on

private property did not constitute the taking of prop-

erty. Although the right to exclude others from the use

of one’s \property is constitutionally recognized, see

Kaiser Aetna v. United States, 444 U.S. 164, 179-80

(1979), the Court concluded that there “is nothing to

suggest that preventing appellants from prohibiting this

sort of activity will unreasonably impair the value or

use of their property ....” 447 U.S. at 83; see Andrus

v. Allard, 444 U.S. 51 (1979). The same holds true

here. A form of regulation that may permit PG&E to

operate unhampered and, at most, would require the

utility to pay postage for the messages it wishes to trans-

mit, see text at 22-23, supra, does not deprive that utility

of “the ‘justice and fairness’ guaranteed by the Fifth

and Fourteenth Amendments.” Agins v. City of Tiburon,

447 U.S. at. 263 (quoting Penn Central Transportation

Co. v. New York City, 488 U.S. 104, 124 (1978) ).°

®The decision in Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), requires no different outcome. The

Court in that case held that a “permanent physical occupation” of

real property constituted a taking. Jd. at 421. The Court was

CONCLUSION

The order under review in this case directly advances

the governmental interest in effective regulation of pub-

lic utilities. It accomplishes that important goal in a

manner that does not infringe First or Fifth Amend-

ment interests. Accordingly, the Court should affirm the

judgment below.

Respectfully submitted,

JONATHAN B. SALLET BENNA RUTH SOLOMON

MILLER, CASSIDY, LARROCA Chief Counsel

& LEWIN JOYCE HOLMES BENJAMIN *

2555 M Street, N.W. THE STATE AND LOCAL

Suite 500 LEGAL CENTER

Washington, D.C. 20037 444 North Capitol St., N.W.

(202) 293-6400 Suite 349

(202) 638-1445

* Counsel of Record for the

Amici Curiae

July 20, 1985

careful in its discussion to distinguish “temporary and limited”

incursions into the use of property like those considered in Prune-

yard. Id. at 434. And the Court explained that “such temporary

limitations are subject to a more complex balancing process to

determine whether they are a taking.” /d. at 485 n.12. In this

case, that balancing process yields the same result reached by the

Pruneyard Court.

a LE Te NE eS

APPENDIX

RELEVANT EXCERPTS FROM STATE CODES,

RULES, AND REGULATIONS

Alaska Administrative Code

3 AAC 48.550. Rate Design.

(a) The customer or fixed charge may recover only

those customer costs defined in 3 AAC 48.540(f) (1) (A)

and (B). However, the commission will, in its discre-

tion, consider requests to increase or decrease the fixed

charge when the electric utility or any other party sub-

mits to the commission appropriate justification and

analysis which relates to its pricing objectives. .. .

(g) Each electric utility shall design and, upon ap-

proval of the commission, distribute informative and un-

derstandable customer bills. Customer bills must, at a

minimum, separately identify the following information

for the billing period: customer charges; total kilowatt-

hour consumption and associated energy charges; monthly

kilowatt maximum demand and associated demand

charges; and the energy surcharge, if appropriate. If

billing is based upon an estimate, the customer bill must

reflect this information.

3 AAC 50.300. Information to Electric Consumers.

(a) An electric utility shall provide to each new elec-

tric consumer, coincident with the application for serv-

ice, a clear and concise explanation of any rate schedule

in its currently effective tariff which applies to that con-

sumer.

(b) Not later than 30 days after the filing of a tariff

advice letter in which a change in a rate schedule is

requested, an electric utility shall transmit to its af-

fected consumers a clear and concise explanation of the

proposed change. This provision does not apply to rate

adjustments resulting from an automatic fuel-cost rate

adjustment clause.

(ec) At least once each year, an electric utility shall

transmit to each of its electric consumers an informative

summary of any rate schedule in its current effective

tariff which applies to those consumers.

(d) On request of an electric consumer, an electric

utility shall transmit a clear and concise statement of the

consumer’s actual energy consumption and, if billed sepa-

rately, power consumption for any billing period during

the previous 12 months unless the information is not rea-

sonably ascertainable by the utility.

Florida, Rules of the Public Service Commission

25-6.100 Customer Billings.

(1) Bills shall be rendered monthly and as promptly

as possible following the reading of meters.

(2) By January 1, 1983, each customer’s bill shall

show at least the following information:

(a) The meter reading and the date the meter is read,

in addition to the meter reading for the previous period.

If the meter reading is estimated, the word “estimated”

shall be prominently displayed on the bill.

(b) 1. Kilowatt-hours (KWH) consumed including on

and off peak if customer is time of day

metered.

2. Kilowatt (KW) demand, if applicable, includ-

ing on and off peak if customer is time-of-day

metered.

1. Customer charge.

2. Energy (KWH) charge, exclusive of fuel, in

cents per KWH, including amounts for on and

off peak if the customer is time-of-day metered

and energy conservation costs.

3. Demand (KW) charge, exclusive of fuel, in

dollar cost per KW, if applicable, including

amounts for on and off peak if the customer is

time-of-day metered.

4. Fuel cost in cents per KWH (no fuel costs

shall be included in the base charge for demand

or energy).

5. Total electric cost which is the sum of the

customer charge, total fuel cost, total energy

cost, and total demand cost.

6. Franchise fees, if applicable.

7. Taxes, as applicable on purchase of electricity

by the customer.

8. Any discount or penalty, if applicable.

9. Past due balances shown separately.

10. The gross and net billing, if applicable.

(d) Identification of the applicable rate schedule.

(e) The date by which payment must be made in order

to benefit from any discount or avoid any penalty, if

applicable.

(f) The average daily KWH consumption for the cur-

rent period and for the same period in the previous year,

for the same customer at the same location.

(g) The delinquent date or the date after which the

bill becomes past due.

(h) Any conversion factors which can be used by cus-

tomers to convert from meter reading units to billing

units. Where metering complexity makes this require-

ment impractical, a statement must be on the bill advising

that such information may be obtained by contacting the

utility’s local business office.

(i) Where budget billing is used, the bill shall contain

the current month’s consumption and charges separately

from budgeted amounts.

(j) The name of the utility plus the address and tele-

phone number of the local officer where the bill can be

paid and any questions about the bill can be answered.

(3) When there is sufficient cause, an estimated bill

may be submitted provided that with the third consecutive

estimated bill the company shall ccntact the customer ex-

plaining the reason for the estimated billing and who

to contact in order to obtain an actual meter reading.

An actual meter reading must be taken at least once

every six months. If an estimated bill appears to be

abnormal when a subsequent reading is obtained, the

bill for the entire period shall be computed at a rate

which contemplates the use of service during the entire

period and the estimated bill shall be deducted. If there

is reasonable evidence that such use occurred during only

one billing period, the bill shall be computed.

(4) The regular meter reading date may be advanced

or postponed not more than five days without a pro-

ration of the billing for the period.

(5) Whenever the period of service for which an

initial or opening bill is rendered is Jess than the normal

billing period, the charges applicable to such service,

including minimum charges, shall be pro-rated except

that:

(a) Initial or opening bills need not be rendered, but

the energy used during such period may be carried over

to and included in the next regular monthly billing.

(6) The practices employed by each utility regarding

customer billing shall have uniform application to all

customers on the same rate schedule.

(7) Franchise Fees.

(a) When a municipality charges a utility any fran-

chise fee, the utility may collect that fee only from its

customers receiving service within that municipality.

When a county charges a utility any franchise fee, the

utility may collect that fee only from its customers receiv-

ing service within that county.

(b) A utility may not incorporate any franchise fee

into its other rates for service.

ity” shall mean any electric utility, rural electric co-

operative, or municipal electric utility.

(d) This subsection shall not be construed as granting

a municipality or county the authority to charge a fran-

chise fee. This subsection only specifies the method of

collection of a franchise fee, if a municipality or county,

having authority to do so, charges a franchise fee.

25-22.405 Notice of Public Utility Hearings.

(1) The provisions of this rule shall apply to all public

hearings conducted by the Commission, except rulemaking

hearings held pursuant to 25-22.10 through .18, F.A.C.

(2) Notice of such public hearings shall be given by

the Commission to the clerk of the board of county com-

missioners of each county affected, the chief executive

officer of each municipality in the area affected, all par-

ties of record and all persons who have requested notice

of such proceedings.

(3) A summary of the subject matter and notice of

hearing shall be published by the Commission in the

Florida Administrative Weekly. The summary shall be

drawn and notice given as required by the provisions of

the statute under which relief is sought, if applicable, but

shall not be published less than 14 days prior to the

hearing.

(4) The Commission may require any public utility in

such proceedings to publish additional notices in news-

papers of general circulation in the area affected and to

give notice to its customers by mail, as may be deemed

reasonably necessary by the Commission to afford ade-

quate notice to the customers of the utility.

(5) When the Commission determines that the health,

safety, or welfare of the public requires an emergency

hearing, notice may be accomplished by giving notice to

those parties listed in subsection 2 not less than 48 hours

prior to the time scheduled for the hearing.

25-22.406 Notice and Public Information on General Rate

Increase Requests.

(1) The provisions oi this rule shall be applicable to

all requests for general rate increases by electric, gas,

water and sewer utilities and telephone companies sub-

ject to the Commission’s jurisdiction.

(2) Upon filing a petition for a general rate increase,

the utility shall mail a copy of the petition to the chief

executive officer of the governing body of each munici-

pality and county within the service area affected.

(3) (a) Within 15 days after it has been notified by

the Commission that the Minimum Filing Requirements

(MFRs) have been met, the utility shall place a copy of

the MFRs at its official headquarters and at its business

office in each municipality in which service hearings were

held in the last general rate case of the utility. Within

15 days after the time schedule has been mailed to the

utility, copies of the MFRs shall be placed in the utility

business office in each additional city in which service

hearings are to be held. Upon customer request a copy

of the MFRs shall be placed in a utility business office

not located in a city where a service hearing is to be held.

The copies of the MFRs shall be available for public in-

spection during the utility’s regular business hours.

(b) In addition to the locations listed above, the Com-

mission may require that copies of the MFRs be placed

at other specified locations.

(4)(a) Within 15 days after the time schedule for

the case has been mailed to the utility, the utility shall

prepare and distribute a synopsis of the rate request.

The synopsis shall be approved by the Commission or its

staff prior to distribution and shall include:

1. A summary of the section of the MFRs showing

a comparison of the present and proposed rates for

major services;

2. A statement of the anticipated major issues in-

volved in the rate case;

3. A copy of the executive summary filed with the

MFRs.

4. A description of the ratemaking process at the

time schedule established for the rate case;

5. The location at which complete MFRs are avail-

able.

(4) (b) Copies of the synopsis shall be distributed to

the same locations as required for the MFRs, to the main

county library within or most convenient to the service

area and to the chief executive officer of each county and

municipality within the service area affected.

(5) Within 30 days after the rate case time schedule

has been mailed to the utility, the utility shall begin

sending a notice approved by the Commission or its staff

to its customers containing:

(a) A statement that the utility has applied for a rate

increase and the general reasons for the request;

(b) The locations at which copies of the MFRs and

synopsis are available;

(ec) The time schedule established for the case, and the

dates, times and locations of any hearings that have been

scheduled; and

(d} A comparison of current rates and service charges

and the proposed new races and service charges.

1. Such notice shall be completed at least 10 days

prior to the first scheduled service hearing.

(6) At least 7 days and not more than 20 days prior

to each service hearing, the utility shall have published

in a newspaper of general circulation in the area in

which the hearing is to be held a display advertisement

stating the date, time, location and purpose of the hear-

ing. The advertisement shall be approved by the Com-

mission or its staff prior to publication.

(7) When the Commission issues proposed agency ac-

tion and a hearing is subsequently held, the utility shall

give written notice of the hearing to its customers at

least 14 days in advance of the hearing. This notice shall

be approved by the Commission or its staff prior to dis-

tribution.

(8) Staff Assisted Water or Sewer Rate Requests. The

following is applicable to a staff assisted rate request for

a water or sewer utility as provided for in Rule 25-

10.180, F.A.C.

(a) Upon receipt of the staff reports, the utility shall

place copies of the application and staff reports, including

a comparison of the present and proposed rates, at its

office. The copies shall be available for public inspection

during the utility’s regular business hours.

(b) At least 14 days prior to the customer meeting,

the utility shall send a notice to its customers containing:

1. The time, date, place and purpose of the meeting;

2. A statement that the utility has applied for a

rate increase and the general reasons for the in-

crease ;

3. The location at which copies of the application

and staff reports are available;

4. A comparison of the present and proposed rates;

5. A statement that any customer comments con-

cerning the rate increase should be addressed to the

Commission Clerk. The address and telephone num-

ber of Clerk shall be provided.

6 The utility’s address, telephone number and busi-

ness hours.

by the Commission or its staff in advance of distribution.

(9) After the Commission’s issuance of an order grant-

ing or denying a rate change, the utility shall give notice

to its customers of the order and the revised rates. The

notice shall be approved in advance by the Commission or

its staff and transmitted to the customers with the first

bill containing the new rates.

Idaho IDAPA 31.C

$10.1 Explanation of Rate Schedule

Each natural gas and electric utility subject to the

Commission’s jurisdiction shall transmit annually to each

of its customers and give to each new customer at the

time of initiation of service a clear and concise explana-

tion of the existing rate schedule for that customer.

$10.2 Notice

Each natural gas and electric utility subject to the

Commission’s jurisdiction which applies for a general rate

increase or natural gas tracker increase shall transmit

to each customer a statement telling the customer that

the company has applied for a general rate increase or

natural gas tracker increase and stating the overall per-

centage increase which the company is requesting. These

10a

notices may be mailed to customers as bill stuffers over

the course of a billing cycle.

$10.3 Comparison of Consumption

Each natural gas and electric utility subject to the

Coxamission’s jurisdiction shall compare on each custom-

er’s regular billing the customer’s actual consumption of

natural gas or electricity with the customer’s actual con-

sumption of natural gas or electricity for the correspond-

ing billing period for the previous year. If the two bill-

ing periods compared contain a different number of days,

the utility shall adjust the data to take into account the

different length of the billing periods and show the com-

parison as either as absolute change in therm use or

kilowatt hour use per day, week or month, or as a per-

centage change in therm use or kilowatt hour use per

day, week or month.

$10.4 Degree-Day Data.

Upon request, each natural gas and electric utility

subject to the Commission’s jurisdiction shall make

degree-day adjusted data available for comparisons of the

kind made in the previous paragraph. The companies

shall regularly disseminate this information through ad-

vertising or press releases to make it generally available

to space-heating and air-conditioning customers.

Illinois Revised Statutes, Chapter 11124—Public Utilities

902. Purpose

§ 2. The purpose of this Act is to promote the health,

welfare and prosperity of all the citizens of this State by

ensuring effective and democratic representation of utility

consumers before the Illinois Commerce Commission, the

Federai Energy Regulatory Commission, the Federal

Communications Commission, the courts, and other public

bodies and by providing for consumer education on utility

lla

service prices and on benefits and methods of energy

conservation. Such purpose shall be deemed a statewide

interest and not a private or special concern.

909. Mailing Procedure

§9. Mailing Procedure. (1) In this Section “enclo-

sure’ means a card, leaflet, envelope or combination

thereof furnished by the corporation under this Section

and “statement” means the text of material submitted by

the corporation [Citizens Utility Board] to be printed on

the face of a postcard billing or to be included in any

enclosure as defined in [paragraph 909]. To accomplish

its powers and duties under [paragraph 505], the cor-

poration, subject to the following limitations, may pre-

pare and furnish to any investor-owned Class A public

utility an enclosure or a statement to be printed on the

face of a postcard billing.

(a) An enclosure or statement furnished by the cor-

poration under this Section may not be submitted to the

utility less than 21 calendar days in advance of the date

of the public utility’s periodic customer billing. The util-

ity shall include such enclosure or statement in or on its

next periodic customer billing. |

(b) An enclosure shall be of a size compatible with the

utility’s mailing envelope, shall otherwise conform to the

specifications of the utility’s billing enclosure inserting

equipment and may not exceed in total weight .5 ounce

avoir. In addition, if the public utility’s periodic cus-

tomer billing is by post card, the corporation may provide

a plain envelope to include the enclosure and such billing,

or the corporation may provide the utility with the text

of a statement to be printed on the face of such billing

in a space no larger than % of an inch by 3 inches.

The corporation shall designate the size of type in which

the statement is to be printed.

this Section shall be limited to informing the reader of

i2a

the purpose, nature and activities of the corporation as

set forth in this Act and informing the reader that the

utility consumer billed may become a member in the cor-

poration, maintain membership in the corporation and

contribute money to the corporation directly. The enclo-

sure may not have the character of a bill, statement or

account. information my include a membership applica-

tion form.

(d) The corporation may not furnish any enclosure

or statement to a public utility under this Section unless

the enclosure or statement has been approved by the IIli-

nois Commerce Commission under snbsection (3).

(e) Upon the request of the corporation, each utility

shall specify the capabilities of its billing enclosure and

electronic transmission equipment within 21 calendar

days of such request.

(2) (a) Except as provided under paragraph (b), any

public utility furnished with an enclosure or statement

under subsection (1) shall print or otherwise include or

enclose such enclosure or statement within, upon or at-

tached to the next periodic customer billing which the

public utility mails or delivers to any consumer.

(b) No public utility may be required to include more

than 4 enclosures or statements annually under subsec-

tion (1) in its periodic billing.

(3) Prior to furnishing a statement or enclosure to a

utility under subsection (1), the corporation shall submit

the enclosure to the Illinois Commerce Commission. The

Illinois Commerce Commission shall approve the enclosure

or statement if it determines that the enclosure (a) is

not false or misleading and (b) satifies the requirements

of this’ Act.

(4) The corporation shall promptly reimburse each

public utility for all reasonable costs incurred by the

public utility in complying with the Section above the

utility’s normal] billing costs, provided that:

13a

(a) The utility shall furnish the corporation with an

itemized accounting of such additional costs.

(b) The corporation shall not be required to reimburse

the public utility for postage costs if the weight of the

corporation’s enclosure does not exceed .35 ounce avoir-

dupois; and if the corporation’s enclosure does exceed

such weight, then it shall be only required to reimburse

the public utility for postage costs over and above what

the utility’s postage cost would have been had the enclo-

sure weighed only .35 ounce avoirdupois.

from the corporation under this Section within 2 months

after the bill is mailed to the corporation, the utility may

refuse further requests to mail a statement or enclosure

until the amount is paid, unless an action is pending in

court.

(5) A dispute arising from the operation of this Sec-

tion shall be resolved by negotiations between the cor-

poration and the public utility if possible, or by a civil

proceeding in circuit court.

Indiana Code Ann.

170 IAC 4-1-18—Informational pamphlets and rate sched-

ules notice of proposed rate change

Section 18. Information Provided by Utilities to Appli-

cants and Customers [Electric Utilities]

(A) Each utility must publish and distribute, without

request, to all applicants for service and to all current

customers, a comprehensive pamphlet which, in clear lan-

guage, easily understandable to a layman, fully describes

the rights and responsibilities of the customers.

(B) A utility shall supply free of charge a copy of the

rate schedules applicable to the types of service available

to new applicants for and existing customers of residen-

tial service, upon request by the applicant or customer.

l4a

for any change in its residential base rate schedules must

furnish to each residential customer within forty-five

(45) days of such request a notice which fairly sum-

marizes the nature and extent of the proposed changes.

170 IAC 5-1-18—Information pamphlets and rate sched-

ules; notice of proposed rate change

Sec. 18. Information Provided by Utilities to Applicant

and Customers. [Gas Utilities]

(A) Each utility must publish and distribute, without

request, to all applicants for service and to all current

customers, a comprehensive pamphlet which, in clear lan-

guage, easily understandable to a layman, fully describes

the rights and responsibilities of the customers.

(B) A utility shall supply free of charge a copy of the

rate schedules applicable to the types of service available

to new applicants for and existing customers of residen-

tial service, upon request by the applicant or customer.

sion for any change in its residential base rate schedules

must furnish to each residential customer within forty-

five (45) days of such request and prior to the date of

the public hearing a notice which fairly summarizes the

nature and extent of the proposed changes. Notice is not

necessary, under this section, for tracking increases or

decreases.

Maine Public Utilities Commission Chapter 11—Rules

and Regulations and Procedure

6. Adjudicatory Proceedings.

B. Notice.

1. Notice of Proceedings. Upon commencement of an

adjudicatory proceeding [general rate increase proceed-

ing] by filing, petition, or otherwise, notice in the form

l5a

specified by paragraphs 6(B) (3), 6(B)(4), and 6(B)

(5) shall be given as follows:

a. By the Administrative Director, to the persons

whose legal rights, duties or privileges are at issue, by

regular mail, within fifteen (15) days after commence-

ment of the proceeding ;

b. By a public utility, except a carrier of passengers

or freight, in any proceding initiated by it and involving

a general rate increase or a general rate increase pro-

ceeding. Notice by this provision shall be given by regu-

lar mail or by such other means as the utility may

employ to deliver its bills, not later than fifteen (15)

days after, nor earlier than ninety (90) days before the

commencement of the proceeding. Before preparing its

notice, the public utility shall inquire of the Office of the

Administrative Director whether a deadline for interven-

tion has been set, in order that the date may be included

in the information required by Section 6(B) (5) (d).

ec. By the Administrative Director, in any proceeding

deemed by the Commission to involve the determination

of issues of substantial public interest, to the public suf-

ficently in advance of the anticipated time of the decision

to afford interested persons and adquate opportunity to

prepare and submit evidence and argument, to petition

for intervention, and to request a hearing is so desired.

Minnesota—Rules of the Public Service Commission

7220.0200 Customer Information.

The utility is responsible for informing its customers

of the following information as prescribed by the follow-

ing provisions:

A. A sign or notice, which shall be approved by the

commission, posted prominently and conspicuously at all

utility office locations open to the general public. The

sign or notice shall state where, when, and to whom a

l6a

complaint is to be directed, and the address of the Public

Utilities Commission and its availability for mediation

upon written request.

B. The utility shall, at its expense, publish customer

information, that wili be offered to each new customer,

and upon request, to any existing customer. This cus-

tomer information must be submitted to the commission

for approval. This customer information must, at a min-

imum, include the following:

(1) The utility’s own customer policies governing the

following areas: bill collections; notice of disconnection ;

disconnection of service; reconnection of service; deposit

and guarantee requirements; and meter reading proce-

dures.

(2) The rate schedule pertaining to the customers of

that area. The current rate schedule as required by part

7820.3200 may be attached to the information to meet

this requirement.

(3) The title, addresses, and phone numbers of the

department(s) of the utility to which complaints should

be directed, including a telephone number for customers

to call in emergency situations or a concise statement as

to where such information can be obtained.

(4) The information contained in parts 7820.0300 and

7820.2700 to 7820.3000.

(5) This statement: “The Minnesota Public Utilities

Commission regulates this utility and is available for

mediation upon written request,” and the address of the

Minnesota Public Utilities Commission.

C. The utility’s billing statements to its customers

must contain this information:

17a

(1) This statement: “Register any inquiry or com-

plaint at ———” (and list the address and telephone num-

ber of the utility, designating where the customer may

initiate an inquiry or a complaint, or a concise statement

as to where such information can be obtained).

(2) A notice to customers of the availability upon re-

quest of the customer information.

7820.3500 Billing Content.

Bills rendered periodically to customers for electric and

gas service shall include, but are not limited to, the fol-

lowing information:

A. the present and last preceding meter reading;

B. the date of the present reading;

C. identification of the applicable rate schedule;

D. the number and kinds of units metered;

EK. a complete itemization of all charges incurred at

each level of customer usage;

F. the amount of the bill;

G. the date on which the bill will become delinquent;

H. any late fee; if applicable;

I. If an estimated bill, clear and conspicuous lan-

guage identifying the bill as an estimated bill;

J. the amount of state and local taxes separately item-

ized;

K. fuel or power adjustment clause separately item-

ized, if applicable; and

L. the information required by part 7820.0200, item C.

18a

7830.3200 Notice Required When Utility Changes Rates.

Subpart 1. Commission notice to governing bodies.

When a utility has filed proposed changes in its rates

or has requested new rates and charges, the commission

shall, pursuant to statute, give notice by the governing

bodies of each municipality or county in the area affected

by such proposed changes. In addition, when determined

by the commission to be appropriate, the utility proposing

a change in rates shall notify individually its subscribers

of the proposed change by billing stuffer or other appro-

priate method.

New Mexico—Rules and Regulations Governing Residen-

tial Customer Service by Gas, Electric and Rural Electric

Cooperative Utilities

2.3--Contents of Bills. Bills for utility service shall pro-

vide information which clearly states:

A. The beginning and ending meter reading dates, or

the number of days in the billing cycle, and the date of

the ending meter reading.

B. Clear and conspicuous language identifying the bill

as an estimated bill, if the bill has been estimated.

C. The number and kind of units metered.

D. Any meter conversions from meter reading units

o billing units.

E. Any meter multiplier constants used to determine

billing.

F. The date the bill is due.

G. Any previous balance.

H. An identification of the applicable rate tariff.

I. The amount due for electric or gas usage.

J. The amount due for special services.

19a

K. The total amount due.

L. Gross receipts taxes and any other taxes, if not a

part of the base rate.

M. The cost of service index, if applicable.

N. The automatic adjustment clauses approved by the

Commission in total and in cost per unit basis, as appli-

cable.

O. The address of the utility, designating where the

residential custoiner may initiate an inquiry or complaint

regarding the bill as rendered or the service provided.

P. If the residential customer is on a budget payment

plan, a statement of (1) the actual charges for service

incurred for the current billings period; (2) the budgeted

amount due; and (3) the amount of credit or arrearage.

North Carolina Utilities Commission Rules and

Regulations

Rule R8-50. Notification of Available Rate Schedules and

Breakdown of Company Operating Expenses.

(a) At least once each calendar year, each electric

utility shall notify its consumers of the rate schedules

that are available within the rate classification in which

such consumer falls. Such notice should contain brief

summaries of all rate schedules within a consumer’s rate

classification. In addition, the notice shall contain a state-

ment that “Complete Rate Schedules are available upon

request.” Each utility shall annually notify the Commis-

sion of the completion date of this notification.

(b) Each electric utility shall annually provide to each

of its consumers a breakdown of its operating expenses

for the most recent available twelve (12) month period

expressed as a percent of each dollar of revenue. This

information may be communicated generally as part of

a regular bill insert, or if the utility does not include

inserts with its bills, in a special mailing.

20a 2la

North Dakota Public Service Commission Rules of its electric customers for which there is a sep-

Section 69-09-02.1. Information to Electric Customers. arate rate;

1. Each utility shall keep on file in every office of the b. An identification of any classes whose rates are

utility where payments are received copies of its rate

schedules and rules and regulations applicable thereto.

Notice shall be given customers as to where this in-

formation is available as a part of the statement

required by subsection 2.

. Each utility shall send to each of its electric custom-

ers a statement containing a clear and concise ex-

planation of the existing rate schedule, and any rate

schedule applied for, that is applicable to such cus-

tomer. The statement shall be sent:

a. Not later than sixty days after the date of com-

mencement of service to such customer or ninety

days after October 1, 1980, whichever occurs last;

and

b. Not later than thirty days after such utility’s

application for any change in a rate schedule ap-

plicable to such customer.

The statement addressing the rate schedule applied

for shall include for each of the major classes of its

electric customers for which there is a separate rate,

a summary analysis which shows the economic im-

pact of the proposed rate change and rate design

changes, if any, for an average customer within a

class based upon an average annual consumption of

and a statement that the rate applied for are proposed

only and that new rates will not be effective until

commission action has been taken.

. Each utility shall send to each of its electric customers

not less frequently than once each year together with

the customer’s billing:

a. A clear and concise summary of the existing rate

schedules applicable to each of the major classes

not summarized; and

ce. A notice calling the attention of the customer to

the availability of alternative rate schedules for

the customer’s particular class of service and that,

upon request, the utility will assist the customer

in determining the billing for load conditions

specified by the customer under various rate

schedules. The customer, after selecting a particu-

lar rate schedule, shall take service under the rate

schedule for a period of not less than twelve

months, unless the rates are changed or there is

a material change in the customer’s load.

4. Each utility, upon request of an electric customer,

shall, without charge, send the customer a clear and

concise statement of the actual consumption and cost

of electric energy by such customer for each billing

period during the prior year, unless such consump-

t'on and cost data is not reasonably ascertainable by

the utility.

5. Each utility shall file with the commission a sample

copy of the statement format required by subsections

2 and 4 and a copy of the summary and notice re-

quired by subsection 3. Any format changes in state-

ments or notices under this section shall be filed

immediately with the commission.

Ohio Public Utilities Commission Rules

§ 4909.19 Publication; Investigation.

Upvn the filing of any application for increase pro-

vided for by section 4909.18 of the Revised Code the

public utility shall forthwith publish the substance and

prayer of such application, in a form approved by the

22a

public utilities commission, once a week for three con-

secutive weeks in a newspaper published and in general

circulation throughout the territory in which such public

utility operates and affected by the matters referred to

in said application, and the commission shall at once

cause an investigation to be made of the facts set forth

in said application and the exhibits attached thereto, and

of the matters connected therewith. Within a reasonable

time as determined by the commission after the filing of

such application, a written report shall be made and filed

with the commission, a copy of which shall be sent by

registered mail to the applicant, the mayor of any munici-

pal corporation affected by the application, and to such

other persons as the commission deems interested. If no

objection to such report is made by any party interested

within thirty days after such filing and the mailing of

copies thereof, the commission shall fix a date within ten

days for the final hearing upon said application, giving

notice thereof to all parties interested. At such hearing

the commission shall consider the matters set forth in

said application and make such order respecting the

prayer thereof as to it seems just and reasonable.

If objections are filed with the commission within

thirty days after the filing of such report, the application

shall be promptly set down for hearing of testimony be-

fore the commission or be forthwith referred to an attor-

ney examiner designated by the commission to take all

the testimony with respect to the application and objec-

tions which may be offered by any interested party. The

commission shall also fix the time and place to take testi-

mony giving ten days’ written notice of such time and

place to all parties. The taking of testimony shall com-

mence on the date fixed in said notice and shall continue

from day to day until completed. The attorney examiner

may, upon good cause shown, grant continuances for not

more than three days, excluding Saturdays, Sundays, and

holidays. The commission may grant continuances for a

longer period than three days upon its order for good

23a

cause shown. At any hearing involving rates or charges

sought to be increased, the burden of proof to show that

the increased rates or charges are just and reasonable

shall be on the public utility.

§ 4904.191

(A) Each electric light company shall, at the time of

the hearing required by the division (B) of section

4905.301 [4905.30.1] of the Revised Code, file proof that

notice of the hearing has been published for five consecu-

tive days ending the day preceding the hearing in at

least one daily newspaper in general circulation in each

county in which the company operates and which is af-

fected by the matters referred to in the hearing notice.

The hearing notice shall not appear in the legal notices

section of the newspaper and shall be printed in a type

size larger than agate. In addition, where its charges for

fuel, expressed in terms of cents per kilowatt hour, to any

class of its customers exceed by fifteen per cent or more

the charges for fuel established at the last hearing on its

fuel cost adjustment clause, the electric light company

shall, at least thirty days prior to the next scheduled

hearing on its fuel cost adjustment clause, notify its cus-

tomers on the bill or by bill insert of the scheduled hear-

ing. The public utilities commission shall determine a

uniform format for the content of all notices required

under this division.

4909:1-11-10 Hearing.

(A) Time.

(1) Each electric utility shall be subject to a public

hearing once in every six months for commission con-

sideration of those matters set forth in paragraph (B)

of this rule.

(2) A public hearing may be held at a lesser interval

of time as ordered by the commission, upon its own mo-

24a

tion or upon application of the electric utility or any

other interested party, if changes in acquisition and de-

livery costs or in system operating characteristics arise

which cause or may be reasonably anticipated to cause at

least a twenty per cent increase or decrease in the fuel

component. The commission shall issue an appropriate

order within forty-five days after the date such an ap-

plication is filed.

(B) Scope.

The electric utility shall demonstrate at its EFC hear-

ing that its acquisition and delivery costs were fair, just,

and reasonable. The commission shall consider, to the

extent applicable:

(1) The efficiency of the electric utility’s fuel procure-

ment practices and policies;

(2) The results of the management/performance

audit;

(3) The results of the financial audit;

(4) Compliance by the electric utility with previous

commission performance recommendations; and

(5) Such other factors as the commission considers

appropriate, including, but not limited to:

(a) Determination of the EFC rate to be charged by

the electric utility during the next current period; and

(b) Caleulation of the cost effectiveness measure under

“Appendix A” to this chaper.

Each electric utility shall cause notice of its semiannual

EFC hearing to be published and shall file proof of publi-

cation in accordance with division (A) of section

4909.191 of the Revised Code. In addition to the require-

ments of that section, each electric utility shall cause the

same hearing notice to be published once between fifteen

25a

and thirty days prior to the hearing date. The hearing

notice shall comply with the uniform format for form

and content determined by the commission.

Oklahoma Statutes, Title 17

§ 254. Disclosure in Customer Bills.

Each public utility subject to a fuel adjustment clause

shall separately disclose in its customer bills the per unit

cost of its fuel, purchased power or purchased gas ad-

justment. Upon request by any individual customer, such

utility shall also disclose for the month for which the

request is received:

1. The actual amount of the adjustment in dollars and

cents; and

2. The per unit rate and amount thereof in dollars and

cents of fuel, purchased power or purchased gas included

in its basic rate.

Oklahoma Corporation Commission Electric Rules

Rule 35. Information on Bills.

The utility shall bill each consumer as promptly as pos-

sible following the reading of his meter. The bill shall

show:

(A) The reading of the meter at the end of the period

for which the bill is rendered.

(B) The date on which the meter was read, or the end

of the billing period.

(D) The total amount due for electricity used.

(E) Items of tax separately billed, pursuant to Rule

55. :

(F) The date by which the consumer must pay the bill

in order to avoid addition of a penalty.

26a

(G) The total amount due after addition of any penalty

for nonpayment within a designated period. The terms

“gross bill” and “net bill” or other similar terms imply-

ing the granting of a discount for prompt payment shall

not be used where a penalty is added for nonpayment

within a designated period.

(H) A distinct marking to identify an estimated bill.

(I) If there is a conversion from meter reading units

to billing units, or any calculation to determine billing

units from recording or other devices, or any other factors

used in determining the bill, full information shall be

furnished on request.

(J) In the case of a special form of billing, such as a

level payment plan, any of the above information which

is inappropriate may be omitted.

(K) The fuel adjustment or purchased power adjust-

ment factor associated with the respective clauses on the

consumer’s bill.

(L) The electric bill submitted by the utility furnish-

ing electric service to the consumer shall be allocated to

the party(ies) affected by such consumer submeters in a

manner approved by and on file with the Commission’s

Director, Public Utility Division.

Oregon: Initiative Measure +3 (enacted Nov. 6, 1984)

Be It Enacted by the People of the State of Oregon:

SECTION 1. The people of the State of Oregon

hereby find that utility consumers need an effective advo-

cate to assure that public policies affecting the quality

and price of utility services reflect their needs and in-

terests, that utility consumers have the right to form an

organization which will represent their interests before

legislative, administrative and judicial bodies, and that

utility consumers need a convenient manner of contribut-

27a

ing to the funding of such an organization so that it can

advocate forcefully and vigorously on their behalf con-

cerning all matters of public policy affecting their health,

welfare and economic well-being.

SECTION 2. As used in this Act, except as otherwise

specifically provided or unless the context requires other-

wise:

(1) “Board” means the Citizens’ Utility Board of

Governors.

SECTION 10. (1) Upon request by the Citizens’ Util-

ity Board pursuant to this section, each utility shall in-

clude in billings to a utility consumer materials prepared

and furnished by the Citizens’ Utility Board, not exceed-

ing in folded size the dimensions of the envelope cus-

tomarily used by such utility to send billings to its

customers.

(2) The Citizens’ Utility Board shall not intentionally

make any false material statement in any material sub-

mitted to a utility for inclusion with a billing. If the

utility believes that the Citizens’ Utility Board has in-

tentionally made false material statements in an en-

closure, it may file a complaint with the Public Utility

Commissioner of Oregon within five days of receipt. The

Public Utility Commissioner of Oregon must review the

complaint within ten days, and if the Commissioner de-

termines that the Citizens’ Utility Board has intention-

ally made false material statements, the commissioner

shall give the Citizens’ Utility Board of Governors writ-

ten notification that specifies any false material state-

ments made and the reasons why the Commissioner

- determines the statements to be false.

(3) No utility shall be required to enclose Citizens’

Utility Board material with a billing more than six times

in any calendar year.

28a

(4) The Citizens’ Utility Board shall notify a utility of

its intention to include under the provisions of this Act

any materials in any specified periodic billing or billings

not fewer than 30 calendar days prior to the mailing of

the periodic billings and shall supply the utility with the

material not fewer than 20 calendar days prior to the

mailing of the periodic billings.

(5) All material submitted by the Citizens’ Utility

Board for inclusion in a utility billing must include the

return address of the Citizens’ Utility Board. A utility is

not required to deliver or forward to the Citizens’ Utility

Board material intended for the Citizens’ Utility Board

mistakenly sent to the utility. However, a utility shall

retain such materials for a period of 60 days from the

date of receipt. The utility shall notify the Citizens’

Utility Board that such materials have been received and

make these materials available to the Citizens’ Utility

Board on demand.

Section 11. (1) The Citizens’ Utility Board shall not

be required to pay any postage charges for materials sub-

mitted by the Citizens’ Utility Board for inclusion in a

utility billing if such materials weigh four-tenths of one

ounce avoirdupois or less. If the materials submitted

weigh over four-tenths of one ounce avoirdupois, then the

Citizens’ Utility Board shall reimburse the utility for a

portion of the postage costs which is equal to that portion

of the Citizens’ Utility Board material over four-tenths

of one ounce avoirdupois in proportion to the total weight

of the billing. In addition to postage costs, the Citizins’

Utility Board shall reimburse such other reasonable costs,

as determined by the Public Utility Commissioner of

Oregon, incurred by a utility in complying with section 10

of this Act.

(2) Reimbursement of a utility by the Citizens’ Utility

Board shall be made within 60 days of the date of utility

submits to the Citizens’ Utility Board an itemized state-

29a

ment of the costs incurred by the utility. In no event

shall such reimbursement exceed the fair market value

for the services provided by the utility.

South Carolina Code of Laws 1976, Vol. 26

Public Service Commission Regulations Pertaining to

Utilities

Reg. 103-330. Customer Information.

Each electrical utility shall:

a. Maintain up-to-date maps, plans, or records of its

entire transmission and distribution systems, with

such other information as may be necessary to en-

able the electrical utility to advise prospective cus-

tomers, and others entitled to the information, as

to the facilities available for serving customers

within its operating area.

b. Provide to each new residential and small commer-

cial customer, within 60 days of application for

service, a clear and concise explanation of the avail-

able rate schedules for the class of service for

which the customer makes application for service.

c. Provide to each residential and small commercial

customer to whom more than one rate schedule is

reasonably available a clear and concise summary of

the existing rate schedules applicable to the custom-

er’s class of service at least once a year.

d. Notify each affected customer of any proposed ad-

justment in rates and charges, excluding adjustment

of base rates for fuel costs within sixty (60) days

of the date of the filing of such adjustment or as

otherwise directed by the Commission.

e. Provide to each customer, upon request, a clear and

concise statement of the actual consumption of elec-

trical energy by such customer for the previous

twelve (12) months.

30a

Reg. 103-430 Customer Information.

Each gas utility shall:

a. Maintain up-to-date maps, plans or records of its

entire transmission and distribution systems, with

such other information as may be necessary to

enable the gas utility to advise prospective cus-

tomers, and others entitled to the information, as

*to the facilities available for serving customers

within its operating area.

b. Notify each affected customer, in writing, as pre-

scribed by this Commission, of any proposed change

in rates and charges within 45 days of the gas

utility’s filing of such proposad change with the

Commission. Unless the Commission orders other-

wise, this notice requirement shall not apply to

Purchased Gas Adjustments, Curtailment Adjust-

ments and Exploration Adjustments. Certifica-

tion that the above notice requirement has been met

shall be furnished the Commission by the gas

utility.

Washington Administrative Code

WAC 480-80-125 Notice by Utility to Customers Con-

cerning Hearing. The purpose of this requirement is to

ensure that customers of a utility which is proposing a

rate increase receive reasonable notice of the nature and

the magnitude of the proposed increase, so that the cus-

tomer is able reasonably to make an informed decision

about whether to participate in the hearing process.

(1) Whenever any utility proposes to increase any rate

or charge for the service or commodities furnished by

it, and the commission has issued an order instituting

investigation concerning such increase, the utility shall

supply a statement to such customers or classes of cus-

tomers designated in the order instituting investigation

Sla

that a hearing will be held by the commission at which

members of the public will be afforded an opportunity

to testify. The statement shall also set forth the amount

of the proposed increase expressed in (a) total dollars

and average percentage terms, and (b) the avereve

monthly increases that customers in each category or

subcategory of service might reasonably expect. Cate-

gories of service shall be identified in tariff terms,

and if those terms are different from those commonly

used by the utility or understood by customers, the notice

shall incorporate that commonly used or understood termi-

nology. The notice shall further contain the information

that a public counsel will be appointed to represent the

public and the mailing address of the commission to which

any customer inquiries to the commission or to the public

counsel relative to the public hearing date may be di-

rected. The statement shall accompany, as a separate

document, regular bills distributed by the utility to its

customers, starting with the first billing cycle reason-

ably available following issuance of the commission's

order instituting investigation and continuing through-

out the utility’s billing cycle covering customers of the

utility as of the date of the commission’s order institut-

ing investigation. As an alternative the utility may make

a separate distribution of the statement within thirty

days following the date of the issuance of the order

instituting investigation. Whether disseminated as pari

of a regular billing or separately the notice shall be pre-

pared in such a manner as to attract attention to it and

to distinguish it from other material simultaneously dis-

tributed. A copy of such statement shall also be mailed

or delivered to at least one newspaper of general circula-

tion, and at least one radio and at least one television

station, in the area or each of the areas affected. The

utility shall promptly file a copy of the statement with the

commission and certify it has complied with or is in the

process of complying with these mailing and delivery

requirements.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.