Claim: New Hampshire PUC Lacks Authority to Sanction Aggregators

The New Hampshire PUC lacks authority to sanction electric aggregators, Resident Power Natural Gas & Electric Solutions, LLC said in a motion to dismiss alleged violations filed by PUC Staff.

See prior story for background on the allegations

Puc 2005, which sets forth the procedures under which the Commission is authorized to impose sanctions, does not include any authority to impose sanctions on aggregators, Resident Power said.

While the statute, RSA 374-F:2, II, granting the PUC sanction authority used the term competitive electricity supplier, which includes aggregators, Resident Power said that the Commission does not have the authority to sanction aggregators because it has failed to promulgate or adopt rules necessary to implement such authority under RSA 374-F:7, III.

RSA 374-F:7, V provides that the Commission, "shall adopt rules, under RSA 541-A, to implement this section," including RSA 374-F:7, III.

"The Commission subsequently adopted a set of rules, but only for CEPS [Competitive Electric Power Suppliers]," Resident Power said.

Specifically, Resident Power said that Puc 2005.01 -- "Sanctions for Failure to Comply" -- authorizes the Commission pursuant to RSA 374-F:7, III to impose various sanctions on CEPS under specific circumstances, but not aggregators.

"Under New Hampshire law, an agency must adopt rules and regulations to clarify the requirements of a statute when there is a provision requiring their adoption," Resident Power said.

"The Commission has not adopted rules similar to Puc 2005.01 to 'augment and enforce' the provisions of RSA 374-F:7, III or to clarify when, how, and to what extent an aggregator may be sanctioned. Thus, because Puc 2005 contains no provisions for sanctioning aggregators and the Commission has not adopted any other rules governing this area, it cannot, as a matter of law enforce the lone authority for such sanctions -- RSA 374-F:7, III -- against aggregators," Resident Power said.

Resident Power further said that the Commission's "general supervisory powers" under RSA 374:3 do not include authority over aggregators. Resident Power said that RSA 374:3 states that the Commission, "shall have the general supervision of all public utilities and the plants owned, operated or controlled by the same so far as necessary to carry into effect the provisions of this title."

"The term 'public utility' does not reference or include aggregators. See RSA 362:2. RSA 374-F:7, II confirms that 'Aggregators of electricity load that do not take ownership of power or other services and do not represent any supplier interest are not public utilities pursuant to RSA 3 62:2,'" Resident Power said.