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Texas Staff: ALJ Has Discretion To Extend Disconnect Moratorium From Complaint About Customer's Former REP to Current REP

April 7, 2015

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Copyright 2010-15 EnergyChoiceMatters.com
Reporting by Karen Abbott • kabbott@energychoicematters.com

A Texas ALJ ultimately has discretion whether to order CenterPoint Energy Houston Electric to continue service, pursuant to PURA § 17.157(b)(5), to a complainant who has filed a formal complaint against their former retail electric provider regarding certain demand charges, but who continues to dispute (though not in a formal complaint) and not pay TDU demand charges charged by their current REP, though Staff recommends that the ALJ not exercise such discretion.

The complainant has filed a formal complaint against their former REP, Ambit Energy, concerning the demand charges. However, the customer has left Ambit and switched REPs four times since the incurrence of the initial demand charge. The complainant, while disputing the demand charges imposed by their current REP (TXU Energy), has not filed a formal complaint against TXU concerning the demand charges. The instant issue in the proceeding is whether a disconnection moratorium related to disputed charges in the Ambit complaint should apply to all of the other REPs that have served the complainant, given that the complainant is not paying the demand charges for the same reasons as disputed in the Ambit complaint.

"A key dispute is that [complainant] Mr. Isa continues to take service with the full knowledge that he is accruing costs that he then refuses to pay to his [current] REP. Mr. Isa's reasoning for this refusal is that the REP should not bill Mr. Isa for the disputed demand charge and that CenterPoint should also stop billing the REP for the amount of the demand charge in dispute while this case is pending. None of the provisions cited by Mr. Isa or CenterPoint state whether CenterPoint may stop charging the REP the demand charge during the pendency of this case. Staff has found no other authority to forward this proposition. At this juncture, it is unclear whether CenterPoint may discontinue charging the REP the demand charge during the pendency of this case. However, previous filings from CenterPoint that cite the Filed Rate Doctrine would suggest that CenterPoint does not believe it has the authority to waive or hold these demand charges to the REP because they are codified in its tariff without exception," Staff noted.

Staff interprets PURA § 17.157(b)(5) as authorizing the ALJ to order the continuation of the complainant's service even if an appropriate disconnect request has been made by the complainant's current REP pursuant to P.U.C. SUBST. R. 25.483.

"As stated by CenterPoint, PURA § 17.157(b)(5) is permissive and does not require that [complainant] Mr. Isa's service be continued, but provides that the Commission may exercise its authority to prevent disconnection," Staff said.

"In contrast, Staff interprets P.U.C. SUBST. R. 25.483(e)(5) to allow [complainant's current REP] TXU Energy to seek disconnection of Mr. Isa's service with CenterPoint because the rule only prohibits disconnection until the accuracy of disputed charges is determined by the Commission and the customer is made aware of that determination. The accuracy of the charges in this case is not in dispute and the customer has been notified of this determination through his receipt of various orders ruling on this issue," Staff said.

"Staff interprets the applicable provisions synthesized in conjunction to mean that TXU Energy may seek disconnection of Mr. Isa's service pursuant to P.U.C. SUBST. R. 25.483(e)(5), but the ALJ may intervene to prevent that disconnection pursuant to PURA § 17.157(b)(5)," Staff said.

Though Staff believes the ALJ may order the continuation of service to the complainant, Staff recommends that the ALJ not issue such an order requiring the continuation of service

Staff noted that the ALJ ruled in SOAH Order No. 13 that, "[a]ll of the issues identified by the Commission and the ALJ pertain to the limited subject of the demand charges that were charged by CenterPoint to Ambit pursuant to CenterPoint's tariff, and then passed on by Ambit to Complainant on his electric bills while Ambit was Complainant's retail electric provider (REP). These issues pertaining to demand charges actually incurred are the only issues that will be determined at the hearing on the merits."

"Staff agrees and further recommends that only the parties listed in the ALJ's SOAH Order No. 13 should be affected by this proceeding. It is unreasonable to require other REPs such as TXU Energy, who have played no role in the acts leading up to this complaint case, to provide retail electric service to Mr. Isa, not receive payment for the demand charge portion of their bills that the REPs are required to pay CenterPoint, and then have no way to disconnect Mr. Isa's service for non-payment pursuant to P.U.C. SUBST. R. 25.483," Staff said.

Docket 42111

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