Ark. Gas Consumers v. Ark. Public Serv.
| Citation | 91 S.W.3d 75,80 Ark. App. 1 |
| Decision Date | 20 November 2002 |
| Docket Number | No. CA 02-51.,CA 02-51. |
| Parties | ARKANSAS GAS CONSUMERS, INC. v. ARKANSAS PUBLIC SERVICE COMMISSION. |
| Court | Court of Appeals of Arkansas |
Rose Law Firm, a Professional Association, by: Stephen N. Joiner, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by: Eric B. Estes, Ass't Att'y Gen., for appellee.
Charles J. Harder, Little Rock, for Reliant Energy Arkla.
Jeffrey L. Dangeau, Little Rock, for Arkansas Western Gas Company.
This appeal from the Arkansas Public Service Commission involves the Commission's approval of a Temporary Low Income Customer Gas Reconnection Policy ("Policy"). During the winter of 2000-01, the weather was extremely cold, which caused a higher-than-normal use of natural gas; at the same time, natural gas commodity prices were unusually high. These conditions combined to create extraordinarily high natural gas bills, and as a result, many customers had difficulty paying their bills. Consequently, natural gas service to over 30,000 residential customers was disconnected for nonpayment. The reconnect provisions in the Commission's regulations and in the companies' tariffs required the payment of a reconnect fee and a security deposit and acceptable arrangements for the payment of the pastdue bill prior to restoration of service. In October 2001, approximately 29,500 of these customers remained disconnected.
Recognizing the existence of a public health emergency, the Commission established Docket No. 01-248-U, and in Order No. 1 proposed a remedial policy, established a schedule for comments, and set a date for a public hearing. In Order No. 1, the Commission found that the public interest required it to expeditiously consider an extraordinary assistance program designed to help low-income families in Arkansas obtain reconnection of their natural gas service before the onset of cold winter weather. The proposed policy covered those customers disconnected between January 1, 2001, and November 1, 2001. The Consumer Utilities Rate Advocacy Division of the Arkansas Attorney General's Office (AG), appellant Arkansas Gas Consumers, Inc., Reliant Energy Arkla (Arkla), Arkansas Western Gas Company (AWG), Arkansas Oklahoma Gas Corporation (AOG), and the Commission's Staff were made parties to this proceeding. The parties filed initial and reply comments on the proposed policy.
Members of the public presented testimony about the existence of the natural gas emergency and the need for a remedy at the public hearing on November 9, 2001. That day, the Commission issued Order No. 2, which implemented the Policy. It stated:
Many of these disconnected homes are occupied by low income families that are simply unable financially to raise the necessary dollars to have their disconnected gas service restored. Recognizing that another winter season is about to begin and also in anticipation of another winter of high natural gas costs the Commission proposed the implementation of the TLICGRP. Without assistance, many of these low-income families will be facing winter without heat for their homes. Without heat, the health, lives and safety of these families will be threatened. Accordingly, the Commission determined that the public interest required the expeditious consideration and implementation of an appropriate low-income family gas reconnection policy.
The Policy temporarily waived the inconsistent reconnect provisions of the Commission's regulations and of the natural gas companies' tariffs. The Policy provided that customers whose household income did not exceed 200% of the federal poverty guidelines, and whose service was disconnected between January 1, 2001, and November 1, 2001, and who remained disconnected as of November 9, 2001, could have service reconnected if they (1) entered into a delayed payment agreement (DPA), which provided that the customer pay off his past-due amount by paying a small amount each month for a maximum of thirty-six months; (2) pay the utility's reconnection charge in full; and (3) agree to participate in the utility's levelized or average payment program, for at least as long as the term of the DPA, to enable the customer to stay current on his future bills. A final enrollment date of December 31, 2001, was established. Order No. 2 also provided that, in return for reconnecting customers under these conditions, the utilities were permitted to recover, over a period of twelve months and through their purchased gas adjustment (PGA), gas supply rate (GSR), or bill line item adjustment, the total bad debt attributable to customers enrolled in the Policy.1 Order No. 2 further provided that the participating customers would not be forgiven for any portion of their arrearages and would remain liable to the utility for the full amount of their past-due balances. As they made payments pursuant to the Policy, those payments would be credited to the PGA, GSR, or bill line item adjustment. Also, if a customer defaulted on a payment under the DPA, he would lose the benefits of the Policy, would suffer disconnection of service, and would be subject to all of the normal collection policies.
On November 13, 2001, appellant filed a petition for rehearing. On November 14, 2001, the Commission issued Order No. 3, which was entitled "Errata Order." That order stated:
The first full sentence of Amendment 1, which begins at the bottom of page 3 and continues at the top of page 4 of Order No. 2 issued on November 9, 2001, is amended to read as follows:
1. Eligibility for the TLICGRP is expanded to cover those low income customers who were disconnected from gas service for non-payment between January 1, 2001, and December 31, 2001, and who remain disconnected as of the date of this order or who are scheduled to be disconnected for nonpayment on or before December 31, 2001, and whose total family income does not exceed 200 percent of the currently approved Federal Poverty Guidelines.
On November 19, 2001, the Commission entered Order No. 4, wherein it stated:
Order No. 2 of this docket, issued November 9, 2001, established and implemented the Temporary Low Income Customer Gas Reconnection Policy ("TLICGRP"). Errata Order No. 3, issued November 14, 2001, amended the first full sentence of Amendment 1 to the TLICGRP as adopted by Order No. 2. On November 15, 2001, Arkansas Oklahoma Gas Corporation ("AOG") filed a letter request for clarification of Errata Order No. 3. By this order the Commission will address AOG's request for clarification.
By Order No. 2, Errata Order No. 3, it was and remains the Commission's intent to provide a program that will enable low income residential customers disconnected from the natural gas utility system to be reconnected before the onset of cold weather. The TLICGRP is intended to assist certain low income customers who are either currently disconnected or are scheduled to be disconnected by December 31, 2001, due to their default on payment for gas usage during the winter heating season of 2000-2001.
On December 12, 2001, appellant filed another petition for rehearing asking the Commission to reconsider Order Nos. 3 and 4. On December 13, 2001, in Order No. 5, the Commission consolidated appellant's two petitions for rehearing. On January 9, 2002, in Order No. 6, the Commission denied both petitions.
Appellant argues on appeal that the Commission exceeded its authority or, in the alternative, abused its discretion in issuing the Policy, that the Policy is not supported by substantial evidence, and that the ratepayers were denied due process.
As a preliminary matter, we must address the AG's argument that this case is now moot because the Policy has already been implemented. It is true that we do not ordinarily decide moot issues. However, there is an exception to the mootness doctrine for cases that are capable of repetition yet evade review. Paslay v. Arkansas Dep't of Human Servs., 75 Ark.App. 19, 53 S.W.3d 67 (2001). Also, when a case involves the public interest, or tends to become moot before litigation can run its course, we have, with regularity, refused to let mootness become the determinant. Id.; Bryant v. Arkansas Pub. Serv. Comm'n, 45 Ark.App. 56, 871 S.W.2d 414 (1994). Because this case involves the public interest and it is possible that this situation may arise again, we will address the merits of appellant's argument.
Arkansas Code Annotated section 23-2-423(c)(4) (Repl.2002) limits our review of appeals from the Commission; we are to determine only whether the Commission's findings of fact are supported by substantial evidence, whether the Commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the constitutions of the State of Arkansas or the United States. Brandon v. Arkansas Western Gas Co., 76 Ark.App. 201, 61 S.W.3d 193 (2001). If an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, nor discriminatory, then this court must affirm the Commission's action. Id. Nevertheless, it is clearly for the courts to decide the questions of law involved and to direct the Commission where it has not pursued its authority in compliance with the statutes governing it or with the state and federal constitutions. Id.
The Commission has broad discretion in exercising its regulatory authority, and courts may not pass upon the wisdom of the Commission's actions or say whether the Commission has appropriately exercised its discretion. Consumer Util. Rate Advocacy Div. of the Ark. Attorney General's Office v. Arkansas Pub. Serv. Comm'n, 76 Ark.App. 557, 69 S.W.3d 896 (2002); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 69 Ark.App. 323, 13 S.W.3d 197 (2000)....
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