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Texas ALJ Allows Complaint Implicating REP Obligations to Communicate TDU Charges to Continue, Refers to Mediation

December 23, 2014

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Copyright 2010-14 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

A Texas ALJ has declined to wholly dismiss a formal customer complaint against Ambit Energy concerning demand charges, and referred the matter for potential mediation.

The complaint centers on a customer whose delivery schedule was changed by CenterPoint Energy Houston Electric after installation of an in-line pole to power a cricket field. The customer has disputed Ambit's pass-through of charges related to the reclassification

As first reported by EnergyChoiceMatters.com, the complaint is notable because Staff of the Public Utility Commission of Texas had earlier opposed summary dismissal of the case, stating, "The REP shall inform the customer of the product or service being offered, including all associated charges, and explicitly inform the customer that the associated charges for the product or service will appear on the customer's electric bill before including any charges on the customer's electric bill." Staff said a footnote in the Ambit contract regarding changes in TDU charges was not sufficient to meet this requirement of "explicit" notice.

However, once the complainant filed their specific requested relief, seeking $200,000 in "damages," Staff recommended that the complaint be dismissed, because PURA does not grant the Commission authority to award damages. Staff noted that the Commission is limited to ordering a refund of overcharges or unauthorized charges.

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In an order on various motions to dismiss, an ALJ agreed that the Commission cannot award damages, and dismissed the specific claims seeking damages for his mental suffering, his family's mental suffering, and for the time and energy he has dedicated to representing himself.

However, the ALJ declined to dismiss the complaint in its entirety, noting that the customer could still pursue a claim for a refund or credit for the demand charges.

"[T]his claim is squarely encompassed by PURA's authorization for the Commission to require a 'refund or credit [of] overcharges or unauthorized charges ... if the ... retail electric provider ... has failed to comply with commission rules or a contract with the customer," the ALJ said.

"In recommending dismissal of all claims against Ambit, Staff did not explain why it believes this PURA provision would not apply here. Staff appears to have recommended dismissal of all claims against Ambit because Complainant's Statement of Specific Relief Requested claimed $200,000 in total damages, 'a sum that far exceeds any actual amount of demand charges in this case by at least $190,000.' The ALJ agrees that most of the relief Complainant has requested exceeds the Commission's jurisdiction and cannot be recovered. However, if Complainant prevails at the hearing on his claim relating to the demand charges, he could be awarded a refund or credit for some or all of the demand charges at issue, with interest," the ALJ said.

The ALJ dismissed claims seeking damages against CenterPoint Energy Houston Electric, but also did not dismiss the entire complaint against the TDU. The ALJ said that CenterPoint Energy Houston Electric is a necessary party to determine issues in the case including: Does CenterPoint have a legal obligation to provide accurate expected usage information to REPs? Did CenterPoint provide incorrect demand or usage information for complainant to Ambit? If so, did CenterPoint's error cause Ambit to misclassify complainant's service classification when he enrolled for electric service?

Although the ALJ acknowledged that settlement discussions among the parties in the past have not been successful, the ALJ referred the case to SOAH's Alternative Dispute Resolution Team Leader, for potential mediation.

Docket 42111

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