Blue Ridge Textile Printers, Inc. v. Public Service Co. of North Carolina, Inc. ( 1990 )

HEDRICK, Chief Judge.

Respondent argues on appeal that the Commission erred by placing Blue Ridge on a rate schedule for which it was never eligible. Public Service complains that by putting Blue Ridge on Rate Schedule 20 even though the corporation had no standby fuel or equipment, the Commission forced Public Service to discriminate against other rate 20 customers who were required to have such alternate fuel capability.

Appellate review of findings and conclusions by the Utilities Commission is governed by G.S. 62-94 which provides that “[u]pon any appeal, the rates fixed or any rule, regulation, finding, determination, or order made by the Commission under the provisions of this Chapter shall be prima facie just and reasonable.” When the Commission’s findings and conclusions are supported by competent, material and substantial evidence, considering the whole record, they are binding on the appellate court. State ex rel. Utilities Comm’n v. Public Staff, N.C. Utils. Comm’n, 317 N.C. 26, 343 S.E.2d 898 (1986).

We have reviewed the record on appeal and are satisfied that the Commission’s findings and conclusions regarding the proper rate schedule for complainant’s account 7-0 are based on competent, material and substantial evidence. Respondent’s argument is therefore overruled.

Respondent also contends the Commission erred “in placing Blue Ridge retroactively on a rate schedule in violation of its own order.” Respondent refers us to an order by the Commission from 1978 in Docket No. G-100, Sub 21 which required new customers on priority 2.5 to install alternate fuel capability. Nevertheless, as the Commission explains, “[t]he 1978 Order . . . deals with the connection of new customers, not to reclassification of existing customers’ priorities. . . .” Blue Ridge’s plant was already in existence and receiving gas service from respondent when the 1978 order took effect. Consequently, the Commission did not violate its own order when it placed Blue Ridge on priority 2.5 and Rate Schedule 20. Respondent’s argument has no merit.

Finally, Appellant Public Staff assigns as error the Commission’s determination that the limitation provision in G.S. 62-132 barred claimant’s recovery of overcharges made more than two years before the filing of the complaint. Public Staff complains that G.S. 62-132 does not apply to this case because the rates charged by Public Service were “established” by the Commission. According to appellant, G.S. 62-132 applies only where the rates in question are “other than those established by the Commission.” We agree.

Chapter 62 provides “a clear statutory dichotomy” between rates “established” by the Commission and rates “permitted or allowed to go into effect at the instance of the utility.” Utilities Comm. v. Edmisten, Attorney General, 291 N.C. 327, 230 S.E.2d 651 (1976). The remedy provided by G.S. 62-132 is available only where, upon petition of an interested party, the Commission holds a hearing and finds the rates charged to be (i) “other than the rates established by the Commission,” and (ii) “unjust, unreasonable, discriminatory or preferential.” “Established” rates, unlike “permitted” or “allowed” rates, are determined by the Commission after a full hearing, findings, conclusions and a formal order. Such rates are “deemed just and reasonable.” In the present case, the rates charged by Public Service (from Rate Schedule 17) were clearly “established” by the Commission. As a result, the remedy and corresponding limitation period in G.S. 62-132 should never have been applied.

An appropriate claim for relief where the disputed rates are “established” by the Commission may exist under G.S. 62-140 which prohibits unreasonable discrimination by public utilities, or under G.S. 62-139 which prohibits a utility from receiving more compensation for services than the amount prescribed by the Commission. As Article 7 does not contain a statute of limitations for actions arising under G.S. 62-139 or G.S. 62-140, the Commission must, on remand, determine both the appropriate remedy and the proper statute of limitations.

The order of the Utilities Commission is remanded for further proceedings consistent with this opinion.

Remanded.

Judges PARKER and COZORT concur.