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Retail Supplier Alleges PUC Staff Testimony On Remand Amounts To Decision For New Violations, Not Explanation Of Prior Determination As Directed By Court
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RPA Energy, Inc. ("RPA") sought to strike portions of testimony from Staff of the PUC of Ohio in a remand proceeding concerning the amount of a violation imposed on RPA, as RPA alleged that such testimony amounts to a new determination, and not, on remand, an explanation of PUCO's prior finding.
See background on the proceeding here
In brief, while the Ohio Supreme Court upheld PUCO's order revoking RPA's retail supplier license, the Court found that PUCO's order did not include support for the amount of forfeiture ultimately ordered by PUCO (which was $1.44 million), with the proceeding remanded to PUCO as the Court directed PUCO to identify and "thoroughly explain" the evidence that PUCO used to support the ordered forfeiture.
RPA alleged that PUCO Staff’s testimony on remand, "is a new forfeiture determination, not an explanation
of the original one."
RPA alleged that PUCO Staff’s testimony on remand:
• "[R]eveals that [Staff witness's] testimony regarding the total number of violations
was just an 'estimation' that the witness now realizes was 'inaccurate.'
• "[P]resents for the first time a case-by-case listing ... identifying
281 violations across 35 PUCO call center cases and 39 audio and video files -- a
figure nearly double the 'over 150' on which the Commission based the original
forfeiture.
• "[P]resents a tiered forfeiture methodology -- assigning different per-violation
amounts based on severity -- that was never employed in the original proceeding,
and which produces a total of $1,924,000, not the $1.5 million Staff originally
recommended or the $1.44 million the Commission imposed.
• "[P]resents an updated spreadsheet (Attachment 2) with totals columns and row-by-row violation counts that did not appear in the original spreadsheet discussed
in the Court’s opinion."
"None of this material was before the Commission when it issued its October 2023 Opinion
and Order. All of it is new," RPA alleged
RPA alleged that, "The remand order and law of the case doctrine constrain the
Commission to the existing evidentiary record, and if the Commission cannot explain how this
record supports the forfeiture previously ordered, the appropriate remedy for that deficiency is not
to permit Staff to create the record it wishes existed. The remedy is for the Commission to
determine what the existing record actually supports and reduce the forfeiture accordingly."
RPA argued that the Court directed the Commission to
explain, quoting the court's order, "the evidence it [PUCO] used to support the ordered forfeiture," with RPA emphasizing the Court's use of the term "used" (past tense)
"Staff’s remand testimony answers a different question: what analysis could support a $1.5
million forfeiture if performed correctly. That is not the question the Court asked, it is not what
R.C. 4903.09 permits, and it is not a permitted litigation tactic generally," RPA alleged
RPA said that testimony addressing evidence and reasoning which did not exist when the
original PUCO order was entered should be excluded
Case 22-441-GE-COI, 22-0441-GE-COI
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July 13, 2026
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Copyright 2026 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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