PUC Judge: "De Minimus" Overcharge by Retail Supplier Does Not Warrant Civil Penalty Sought by Customer

An initial decision from a Pennsylvania ALJ would decline to impose a civil penalty on Direct Energy for erroneously overcharging a customer by $1.93, finding that, "this de minimus amount does not rise to a violation warranting the need for a civil penalty to deter future violations."

The complaint involved a six-month contract scheduled to expire on April 1, 2013, which included a rate of $0.0697/kWh.

However, due to a data entry or import error, Direct Energy internally listed the end date of the contract as March 30, 2013. For two days, prior to the customer switching at the end of the contract, Direct Energy charged the customer a higher variable rate.

Direct Energy calculated the difference between the erroneously billed amount and correct amount, which was $1.93, and refunded this amount to the customer.

However, the customer still sought imposition of a civil penalty on Direct Energy.

"I am persuaded to find that since the company issued a refund for the difference of $1.93 on June 4, 2013, that it has mitigated any harm to Complainant and that this de minimus amount does not rise to a violation warranting the need for a civil penalty to deter future violations," the ALJ said, in dismissing the complaint in the initial decision.

"Based on the evidence presented, Complainant has failed to prove by a preponderance of the evidence that Direct Energy violated any Commission regulations or orders by incorrectly charging him for electric services as the Company fully refunded Complainant $1.93 within 70 days of the initial overcharge. Respondent did not charge any cancellation or termination fees. Therefore, no civil penalty is warranted in this case as I find no violation of any regulations or Commission orders," the ALJ said.

"Direct Energy acted in good faith in mitigating harm to Complainant by refunding Complainant the difference between the offered fixed rate and the variable rate actually charged on March 31 and April 1, 2013," the ALJ said.

However, noting the customer's concern that the issue may be a systemic problem within the industry, the ALJ directed that a copy of the order be delivered to the Commission's Office of Competitive Market Oversight, "so that they may be aware of a potential problem in the electric retail market."

Ron Cerniglia, Director of Government & Regulatory Affairs for Direct Energy, provided the following statement to Matters:

"Direct Energy worked diligently with this customer to resolve this issue. As we strive to maintain the highest quality billing and information systems, we are pleased that the Administrative Law Judge dismissed the complaint."

Docket C-2013-2361740