Jennifer Gamage v. Public Utilities Commission , 2021 ME 50 ( 2021 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 50Docket: PUC-21-36
Argued: September 8, 2021
Decided: October 12, 2021
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
JENNIFER GAMAGE et al.
v.
PUBLIC UTILITIES COMMISSION et al.
HUMPHREY, J.
[¶1] Jennifer Gamage and ten other residential customers of Central
Maine Power Company (collectively, the CMP customers)1 appeal from a Public
Utilities Commission order dismissing their complaint alleging that CMP
committed unreasonable practices by delivering notices threatening
disconnection during the November 2020 to April 2021 winter season of the
COVID-19 pandemic. We affirm the Commission’s decision.2
1 The other customers are Alyssa Philbrick, Karen Doughty, Melissa Deleskey, Tammi Look, Nick
Pelletier, Pauline Nelson, Henry Lavender, Sarah Levine, Karen George, and Lisa McLeod.
2 Although we ordinarily will not hear an appeal when an issue is moot because it has lost its
controversial vitality and a decision would not provide “any real or effective relief,” In re Involuntary
Treatment of K., 2020 ME 39, ¶ 9, 228 A.3d 445 (quotation marks omitted), we address this appeal
despite the passage of the winter of 2020 to 2021 to provide future guidance on a question of great
public concern, A.S. v. LincolnHealth, 2021 ME 6, ¶ 8, 246 A.3d 157.
2
I. BACKGROUND
[¶2] The facts are entirely procedural and are drawn from the
Commission’s record. On March 16, 2020, due to public health concerns arising
from the COVID-19 pandemic, the Director of the Commission’s Consumer
Assistance and Safety Division (CASD) declared an emergency moratorium on
all disconnection activity, including the issuance of disconnection notices and
service disconnections, by electric transmission and distribution (T&D) and
other utilities. Investigation of an Emergency Moratorium on Disconnection
Activities, No. 2020-81 (Me. P.U.C. Mar. 16, 2020). Following the institution of
the moratorium, the Commission opened multiple inquiries related to the
duration of the moratorium and invited comments from interested persons.
The Commission considered comments submitted by the Office of the Public
Advocate, eight T&D utilities, multiple other utilities, and a utility association.
The Commission received additional comments after it published a draft order.
[¶3] Some of the T&D utilities that commented argued that rescinding
the moratorium before winter would allow customers to become current on
payments before the Commission’s established winter-disconnection rules
began to apply and would prevent customers from accruing two winters’ worth
of arrearages with little or no recourse for the utilities. The Public Advocate
3
urged the Commission to keep the emergency moratorium in place through the
winter.
[¶4] By order dated September 17, 2020, the Commission lifted the
emergency moratorium effective on November 1, 2020. Public Utilities
Commission, Emergency Moratorium on Disconnection Activities Due to
COVID-19 Pandemic, No. 2020-81 (Me. P.U.C. Sept. 17, 2020). In its order, the
Commission summarized the requirements of its winter-disconnection rules,
which restrict the utilities’ ability to disconnect residential customers’ service
but anticipate that the customers will pay a reasonable portion of their bills to
avoid accumulating arrearages. See 65-407 C.M.R. ch. 815, §§ 1(C)(3),
10(L)(3)(a)(ii) (effective Feb. 23, 2020). The Commission determined that a
November 1, 2020, end date for the moratorium would allow a transition
directly to the winter-period procedures, which prohibit disconnection
between November 15 and April 15 without CASD approval and which require
fourteen days’ written notice before disconnection. See 65-407 C.M.R. ch. 815,
§§ 2(HH), 10(D)(2), 10(M)(4). The Commission decided to end the moratorium
because it was concerned about customers’ accumulation of unmanageable
debt, customers’ inability to access certain federal funds in the absence of
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disconnection notices, and the potential for an increase in rates due to the
utilities’ resulting uncollectible debts.
[¶5] On December 21, 2020, well after the twenty-day reconsideration
period for the September order, see 65-407 C.M.R. ch. 110, § 11(D) (effective
Nov. 26, 2012), the CMP customers filed a complaint with the Commission
alleging that they had either received notices threatening disconnection or
feared receiving disconnection notices because they were behind in payments
to CMP, see 35-A M.R.S. § 1302(1) (2021).3 They alleged, citing section 1302(1),
that sending notices threatening disconnection during the winter of the
pandemic, when COVID-19 case numbers were rising, amounted to an
“unreasonable” practice by CMP that the Commission must investigate. As
relief, the CMP customers requested that the Commission
• find that CMP’s disconnection practices during the winter “and the
pendency of the Covid-19 pandemic” were unreasonable,
• reinstate the earlier moratorium on disconnection,
• order CMP to suspend the sending of any disconnection notices through
April 15, 2021, and
• order that the reinstated moratorium be publicized.
3 The customers did not allege that CMP had in fact disconnected any of their electricity.
5
[¶6] At the Commission’s invitation, CMP filed a response on
December 31, 2020. CMP argued that the relief the CMP customers sought was
truly a request for the Commission to reconsider its September order to rescind
the moratorium; that the CMP customers had an issue with the Commission,
not CMP; and that the CMP customers’ complaint was without merit because
CMP had done all that was expected of it under the applicable statutes, orders,
and rules. Also on December 31, the Public Advocate filed a response and urged
the Commission to amend its September order to reinstate the moratorium and
require that any email notice threatening disconnection include information
about the programs in place for assistance with utility payments.
[¶7] On January 3, 2021, the CMP customers responded that their
complaint was not an attempt to amend the September order but was instead
focused on disconnection threats made as COVID-19 cases began to rise
following the issuance of that order. The CMP customers argued that, in those
particular circumstances, the disconnection notices were unreasonable and the
Public Advocate’s proposal to require CMP to send information about
assistance with any threat to disconnect service would not dispel customers’
fears.
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[¶8] Three days later, CMP responded that the relief requested by the
Public Advocate went beyond the scope of the CMP customers’ complaint and
would affect other utilities, that its outreach process already included providing
information about payment assistance, that the broad relief sought by the CMP
customers would not be a proper cure for any unreasonableness of the
disconnection notices, and that there is already a special, exacting process in
place for winter disconnection.
[¶9] The Commission dismissed the CMP customers’ complaint as being
“without merit” because the disconnection notices complied with the
applicable statutes, orders, and rules. Id. § 1302(2). The Commission
concluded that the Public Advocate’s proposed change to the
disconnection-notice requirements was not properly addressed in the CMP
customers’ proceeding.4
[¶10] The CMP customers timely appealed to this Court. See 35-A M.R.S.
§ 1320 (2021); M.R. App. P. 2B(c)(1), 22(a).
4 The Commission additionally recommended that customers receiving a disconnection notice
contact their utility company to obtain information about assistance and payment arrangements or
dial 211 to determine eligibility for assistance.
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II. DISCUSSION
[¶11] To decide this appeal, we (A) explain the standard of review;
(B) summarize the applicable statute and our previous construction of it;
(C) review the cases in which the Commission, and we, previously applied the
statute; and (D) apply the law to review the decision on appeal.
A. Standard of Review
[¶12] We review a decision of the Commission deferentially and will
disturb it only if the Commission has abused its discretion or failed to “follow
the mandate of the [L]egislature, or to be bound by the prohibitions of the
constitution.” Friedman v. Pub. Utils. Comm’n, 2016 ME 19, ¶ 10, 132 A.3d 183(quotation marks omitted). “While it is true that a court will defer to an
administrative agency’s construction of a statute administered by it, that
deference must yield to the fundamental approach of determining the
legislative intent,” and we look “to the wording of the statute and the legislative
objective of the statute.” Agro v. Pub. Utils. Comm’n, 611 A.2d 566, 569
(Me. 1992) (quotation marks omitted). Thus, we will review whether the
Commission erred in construing 35-A M.R.S. § 1302 or abused its discretion in
dismissing the complaint.
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B. Previous Statutory Construction
[¶13] By statute, ten aggrieved persons may file a written complaint with
the Commission to allege that a “practice or act of a public utility is in any
respect unreasonable, insufficient or unjustly discriminatory.” Id. § 1302(1).
When such a complaint is filed, the Commission, “being satisfied that the
petitioners are responsible, shall, with or without notice, investigate the
complaint.” Id.
[¶14] If, however, “the commission is satisfied that the utility has taken
adequate steps to remove the cause of the complaint or that the complaint is
without merit, the complaint may be dismissed.” Id. § 1302(2) (emphasis
added). The term “without merit” has particular meaning in this context: “the
phrase ‘without merit’ must be understood to mean that there is no statutory
basis for the complaint, i.e., that the PUC has no authority to grant the relief
requested or that the rates, tolls, or services are not ‘in any respect
unreasonable, insufficient, or unjustly discriminatory . . . or inadequate.’” Agro,
611 A.2d at 569 (quoting 35-A M.R.S. § 1302(1)). Thus, although the
Commission must “promptly and seriously consider consumer complaints
brought to its attention through a section 1302 complaint,” and may not “ignore
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complaints on the basis of expediency,” the complaint may be dismissed if it
does not have “some substantive merit.” Id.
[¶15] If an issue has already been considered and determined not to have
merit, we will affirm the Commission’s decision to dismiss a ten-person
complaint raising that issue. See Friedman v. Pub. Utils. Comm’n, 2012 ME 90,
¶ 12, 48 A.3d 794. A complaint should not be dismissed, however, if it contains
any issues that were considered but not determined. See id. ¶¶ 9-11.
C. Cases Applying Section 1302(2)
[¶16] In only two cases have we reviewed the Commission’s dismissals
of complaints based on section 1302(2). See Agro, 611 A.2d 566; Friedman,
2012 ME 90, 48 A.3d 794. In the first, the complaint alleged that a telephone
company was charging residents in the Gray/New Gloucester area tolls for
calling Portland, while not charging residents in similarly situated
communities, and that communities surrounding Portland had to pay tolls to
call the Gray/New Gloucester area but not to call Portland. Agro, 611 A.2d at
568. The Commission did not conclude that there were no cognizable issues or
that the complaint lacked a factual basis, but it nonetheless dismissed the
complaint, concluding that the issues raised should be addressed in other
matters that were pending or anticipated: (1) a matter opened to consider
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alternative service plans to address geographically based rate inequities, (2) a
matter addressing allegations of excess profits by the telephone company, and
(3) an anticipated comprehensive rate case. Id. at 568-69.
[¶17] We held in Agro that the Commission had dismissed the complaint
based on expediency—not a lack of merit—in violation of section 1302(2).
Id. at 569-70. We concluded that “the PUC cannot dismiss outright . . . a
complaint that the PUC admits has substantive merit, solely on the basis that it
does not deserve separate consideration.” Id. at 570.
[¶18] In our other opinion reviewing the Commission’s application of
section 1302(2), we reviewed the Commission’s dismissal of a complaint that
sought, among other things, an investigation into health and safety issues
arising from CMP’s installation of smart-meter technology that emitted radio
frequency radiation. Friedman, 2012 ME 90, ¶¶ 1-2, 48 A.3d 794. The
Commission concluded that it had considered and resolved the issue in an
earlier investigation into whether CMP’s refusal to allow individual customers
to opt out of smart-meter installation was unreasonable, insufficient, or
unjustly discriminatory. Id. ¶¶ 3, 9.
[¶19] The Commission had expressly stated, in initiating the opt-out
investigation, that it was making “no determination on the merits of health,
11
safety, privacy or security concerns.” Id. ¶ 10 (quotation marks omitted). And
in its order on a motion for reconsideration of the decision in the opt-out
proceeding, the Commission stated that it would not consider the health and
safety concerns because the appropriate entity to consider the health impacts
was the Federal Communications Commission in consultation with the Food
and Drug Administration. Id. Because the issue had specifically been excluded
from the Commission’s consideration in the earlier proceeding, we concluded
that that proceeding did not resolve the issues raised in the new complaint and
vacated the portion of the Commission’s decision that dismissed the
complaint’s request for an investigation into the health and safety issues. Id.
¶ 11.
[¶20] As to other issues that were both considered and determined in
the opt-out proceeding, however, we affirmed the dismissal of the ten-person
complaint. See id. ¶ 12. As to those matters, it was “clear that those issues were
resolved.” Id.
D. Review of the Commission’s Decision
[¶21] Here, unlike in Agro, another proceeding has already occurred, and
we can, as in Friedman, determine whether the Commission, in that previous
proceeding, concluded that the issues later raised in the ten-person complaint
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lacked merit. In the previous proceeding, which resulted in the Commission’s
September order, the Commission determined both (1) that the pandemic-
induced disconnection moratorium would end on November 1, 2020, and
(2) that the issuance of disconnection notices would be allowed as part of the
procedures set forth in the Commission’s winter-disconnection rules.
[¶22] The subsequently filed ten-person complaint alleged no conduct
violating the Commission’s order or the applicable statutes or regulations.
Because there was no violation of law and the argument for an extended
moratorium on disconnections had been determined in the earlier proceeding,
the Commission did not err or abuse its discretion in dismissing the complaint
as “without merit.” 35-A M.R.S. § 1302(2); see Friedman, 2012 ME 90, ¶ 12,
48 A.3d 794.
[¶23] Although the number of COVID-19 cases undisputedly increased
after the Commission’s September order, the order was premised not on ever-
fluctuating case counts but on transitioning from the circumstances that led to
the moratorium, when “schools and businesses were being shuttered, and
people were being asked to stay home,” toward “something of a new normal.”
The transition to which the September order was directed was underway
despite the spread of the disease, and the Commission did not err or abuse its
13
discretion in dismissing the ten-person complaint based on its previous
determination that the allegations raised therein were without merit. See 35-A
M.R.S. § 1302(2).
The entry is:
Decision of the Public Utilities Commission
affirmed.
Peter L Murray, Esq. (orally), Murray, Plumb & Murray, Portland; Alex S. Parker,
Esq., Trafton, Matzen, Belleau & Frenette, LLP, Auburn; and Sumner H. Lipman,
Esq., Law Office of Sumner Lipman, Scarborough, for appellants Jennifer
Gamage et al.
Amy Mills, Esq. (orally), Jordan McColman, Esq., and Mitchell Tannenbaum,
Esq., Public Utilities Commission, for appellee Public Utilities Commission
Carlisle Tuggey, Esq., and Richard P. Hevey, Esq. (orally), Avangrid Service
Company, Augusta, for appellee Central Maine Power
Public Utilities Commission Docket Number 2020-350
FOR CLERK REFERENCE ONLY