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Court Affirms State Regulator Lacks Jurisdiction Over Retail Supplier Complaints

August 31, 2015

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Copyright 2010-15 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Indiana Court of Appeals has affirmed a decision from the Indiana Utility Regulatory Commission in which the IURC had found that it lacked jurisdiction over a customer complaint filed against a retail gas supplier in the NIPSCO choice program.

The original complaint centered on a supplier's pricing, and the customer filed a complaint with the IURC

The IURC found that because the supplier is not a public utility, there is no statutory authority providing the IURC with jurisdiction over the case.

On appeal, the Court agreed with the IURC's conclusion that the supplier, "purchases natural gas from suppliers and resells it to [the customer], but NIPSCO, not [the supplier], transports and delivers the gas to [the customer]. Therefore . . . [the supplier] is not a public utility under Ind. Code § 8-1-2-87.5, and the statute does not provide the Commission jurisdiction over the subject matter of the case."

The Court noted that Indiana Code section 8-1-2-1 defines a public utility as an entity that, "may own, operate, manage, or control any plant or equipment within the state [for the] production, transmission, delivery, or furnishing of heat, light, water, or power." The IURC "correctly" pointed out that the customer did not designate any evidence that the supplier owns, operates, manages, or controls any plant or equipment within Indiana for natural gas utility service, the Court noted

"We further note that [the customer] is mistaken that the Commission has statutory jurisdiction over all consumer disputes about utility bills arising under the choice program simply because the contract for the supply of a utility arose under the choice program," the Court said

The customer had also argued that the Supplier Aggregation Service Agreement (SASA), including its Code of Conduct, between NIPSCO and the supplier imbued the IURC with jurisdiction over the complaint

The Court disagreed.

"Our review of the evidence reveals that the SASA governs the relationship between [the supplier] and NIPSCO, and by its terms does not vest any rights, privileges, or interests in [the supplier'] customers," the Court said

The Court noted that Section 13 of the SASA sets forth the process to resolve customer complaints that the supplier has either violated the SASA or engaged in fraudulent, deceptive, or abusive acts. Specifically, initial complaints from the supplier must start with the supplier. If a resolution is not reached, NIPSCO then investigates the facts underlying the allegation. If it finds a violation of the SASA, or fraudulent, deceptive, or abusive acts, NIPSCO can impose sanctions. If sanctions are imposed, the supplier may seek relief from the Commission.

Case No. 93A02-1503-EX-160

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