ALJ Denies FirstEnergy Advisors' Motion To Dismiss RESA Protest To Pennsylvania Broker Application

Sets Matter For Hearing

September 16, 2020

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Reporting by Paul Ring • ring@energychoicematters.com

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A Pennsylvania PUC Administrative Law Judge has dismissed a motion filed by Suvon LLC, d/b/a FirstEnergy Advisors to dismiss a protest filed by Retail Energy Supply Association against FirstEnergy Advisors' application for a Pennsylvania electric broker license

EnergyChoiceMatters.com had exclusively first reported in June that Suvon, LLC d/b/a FirstEnergy Advisors has applied for a Pennsylvania electric broker/marketer license to serve all customer classes in all service areas

Among other things, RESA had alleged in its protest that FirstEnergy Advisors lacks the technical fitness to maintain the Pennsylvania Public Utility Commission’s consumer protection and competitive market safeguards because, among other alleged infirmities, FirstEnergy Advisors' application is unclear that FirstEnergy Advisors and FirstEnergy Corp. will operate in an independent capacity so as to ensure the Commission’s consumer protections and competitive market safeguards are upheld during its operations (see details here)

RESA's protest was filed nunc pro tunc because RESA's protest was filed after the 50-day protest period had ended

FirstEnergy Advisors moved to dismiss RESA's protest given that RESA had constructive notice of its application, as FirstEnergy Advisors published notice in newspapers of general circulation in accordance with PUC regulation, and the protest was filed well beyond the deadline for protests. FirstEnergy Advisors also said that waiving the deadline to allow RESA to participate in the case is not necessary or appropriate, "because most of the issues RESA seeks to raise are beyond the scope of an application proceeding, which is limited to the technical and legal fitness of the applicant."

"The Commission should see the Late Protest for what it really is: a competitive protest, which is forbidden by the PUC’s regulations," FirstEnergy Advisors had said

The ALJ ruled that, "Suvon’s motion to dismiss RESA’s protest will be denied. The Covid-19 pandemic is good cause for the delay in RESA filing its protest. Allowing RESA to proceed with its protest would enable the Commission the opportunity to address the consumer protection and competitive issues that RESA raised in its protest. RESA’s protest should not be dismissed on a preliminary basis."

The ALJ directed that the matter proceed to a hearing scheduled for October 13, 2020

The ALJ noted that, "the Commission and the Commonwealth are facing an unprecedented pandemic. As a result of this pandemic, the Commission offices have been closed and the Commission is operating under unique circumstances. On March 20, 2020, the Commission issued an Emergency Order at docket number M-2020-3019262 in response to the Proclamation of Disaster Emergency issued by Governor Wolf on March 6, 2020. Although this order denying Suvon’s motion to dismiss is not decided pursuant to the emergency provisions contained in the March 20th Emergency Order, the Emergency Order is noted here because it encourages all parties to Commission proceedings 'to cooperate regarding the suspension, extension, waiver or change of any regulatory, statutory or procedural deadlines in connection with the performance of any obligation prescribed by the Public Utility Code or other applicable law.' The Commission also noted that 'the receipt and sending of all mail from the United States Postal Service and other couriers has been interrupted while the Commission has limited, or no, access to its physical facilities.'"

"As a result, the fact that RESA may not have received notice of the filing of Suvon’s application is not unreasonable in light of the pandemic and the associated logistical issues related to carrying on normal operations during this time. RESA admitted in its answer to Suvon’s motion that it had constructive notice of the filing of the application based on the publication of the notice in seven newspapers throughout the Commonwealth. However, RESA argued that neither it nor its members had actual notice of the application, in part because 'in the current era of the Covid-19 pandemic, when most employees of RESA’s members EGSs are under travel restrictions or even have offices located out of state, the idea that publication in a handful of physical newspapers is sufficient notice to RESA’s members flouts logic and is against the public policy of the protest process.' This argument is reasonable and warrants denying Suvon’s motion and allowing RESA to pursue its protest in this proceeding," the ALJ said

"Denying Suvon’s motion to dismiss would not set bad precedent by allowing protests filed 50 days after the deadline to be accepted nunc pro tunc, as Suvon argued, because of the unique situation the parties are presently faced with related to the Covid-19 pandemic. Doing so is not contrary to the public interest but, rather, emblematic of the cooperation and flexibility needed at this time. Without doubt, missing a deadline by 50 days is significant. And RESA is advised to put in place procedures going forward that would ensure that it does not miss deadlines in the future, even during a pandemic. That is, if RESA misses another deadline by 50 days, it may not be afforded such leniency in the future. The Commission has proceeded with as close to normal procedures as possible during the pandemic and certainly Suvon is entitled to have its application heard in a timely manner," the ALJ said.

"Nonetheless, the Commission is still conducting its own investigation of Suvon’s application and, therefore, it does not appear that Suvon will be materially harmed by allowing RESA to proceed with its protest. This is particularly true in light of Section 1.2 of the Commission’s regulations that allows for the liberal construction of Commission regulations, especially when the substantive rights of the parties have not been affected. See, 52 Pa.Code § 1.2(a)('this subpart shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which it is applicable. The Commission or presiding officer at any stage of an action or proceeding may disregard an error or defect of procedure which does not affect the substantive rights of the parties.'). This is even more true during a pandemic," the ALJ said

Docket A-2020-3020377

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