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The Public Utility Law Project
Electronic Newsletter
January 15, 2010
Auburn N.Y. Municipal Water User Opposes City's Motion to End Litigation Over Constitutionality of Termination and Denial Practices
In October 2008, a tenant user of municipal water utility service provided by the City of Auburn, NY commenced a lawsuit in U.S. District Court challenging the constitutionality of the City's practices. The tenant is represented by PULP. The house the Plaintiff lived in was in foreclosure and the absentee owner had stopped paying Auburn for water and sewer service. Auburn shut water service off due to the owner's unpaid bills, without mailed notice to the tenant as the occupant, and the posted notice of termination gave no notice of an opportunity for a hearing. When the tenant requested water service after it was shut off due to the owner's nonpayment, Auburn, acting under its policies, demanded that the tenant pay for all the owner's indebtedness for prior unpaid bills in the owner's name as a condition of receiving utility water service. Only after a federal action was commenced in October 2009, a motion for a preliminary injunction was filed, and an emergency court order was requested did Auburn turn the water on. In November 2009, after completing discovery, the Plaintiff filed a motion for partial summary judgment seeking a ruling that Auburn violated her constitutional rights to procedural and substantive due process of law, and to equal protection of the law. On December 24th, Auburn countered by filing a cross motion for summary judgment seeking to dismiss the case. On January 11th, PULP filed a brief on behalf of the Plaintiff in opposition to Auburn's motion.
MORE -- http://pulpnetwork.blogspot.com/2010/01/auburn-municipal-water-user-opposes.html
NYSERDA Proposes to Revise Allocation of $301.6 Million RGGI Proceeds
The New York State Energy Research and Development Authority (“NYSERDA”) is proposing to revise its plans for spending $301.6 million of the projected $446.4 million proceeds from the sale of greenhouse gas allowances under the Regional Greenhouse Gas Initiative (“RGGI”) program through the period ending March 31, 2012. The proposed new spending plan is based on a more conservative estimate of future RGGI auction revenue than the original plan adopted in April 2009, which had assumed receipt of $607 million through March 31, 2012, of which $525 million was proposed to be spent on various programs. According to the revised plan, after five quarterly RGGI auctions of greenhouse gas allowances, NYSERDA had received $181 million. The RGGI auction revenue only partly offsets the amount of electric rate increases it causes. The RGGI program had been challenged on the ground that it was created by the Governor and state agencies without any legislative authority, which the challengers believe is needed to require power producers to buy carbon allowances and to guide expenditure of the money received from the state agency auction. Proposed consent decree was filed earlier this month to settle the suit using $7.7 million in RGGI funds.
MORE -- http://pulpnetwork.blogspot.com/2010/01/nyserda-proposes-to-revise-allocation.html
PSC Creates New Office of Consumer Policy
Effective earlier this month, the New York State Public Service Commission ("PSC") created the Office of Consumer Policy and named Douglas Elfner to be its Acting Director. According to the PSC, the Office of Consumer Policy will focus on consumer policy matters, including those issues raised in rate cases and proceedings, such as low income programs, service quality, Smart Grid, and other policy-related developments. It will also be responsible for outreach and education, metering, submetering, and consumer advocacy. Outreach for the Lifeline discount telephone service will be under the new Office and Lifeline policy issues will be shared with the Office of Telecommunications. Consumer complaints against utilities will continue to be handled through the PSC Office of Consumer Services. Elfner worked for the New York State Consumer Protection Board (“CPB”) for 20 years, and was CPB's Director of Utility Intervention for eight years, until 2008 when he joined the PSC.
MORE -- http://pulpnetwork.blogspot.com/2010/01/psc-creates-new-office-of-consumer.html
Activist Supreme Court Reaches Out to Limit Consumer Objections to Wholesale Power Rates
On January 14th, the U.S. Supreme Court reversed a decision of the Court of Appeals for the District of Columbia Circuit that had allowed states and consumers to challenge a deal establishing new rules for expensive electric capacity auctions in New England. In its opinion in NRG Power Marketing v. State of Maine Public Utility Commission, the Supreme Court extended last year's ruling in the Morgan Stanley case where it limited review of inter-utility wholesale power contracts by presuming them to be reasonable. The new case involves a deal brokered at the Federal Energy Regulatory Commission (“FERC”) over the rules of the New England Independent System Operator (“ISO”) for operating its forward capacity market auctions, the results of which then establish prices paid to owners of power plants for their availability, whether or not it is used. The deal was not agreed to by all the parties in the case, as it will raise rates paid by consumers, and administrative litigation followed at FERC over whether the settlement would establish new ISO market rules and rates that are just and reasonable. FERC presumed the deal was reasonable and approved the settlement. The Circuit Court rejected FERC's standard of review in its opinion, saying "we agree with the petitioners that the Commission has unlawfully deprived non-settling parties of their rights under the Federal Power Act." NRG Power Marketing appealed to the Supreme Court seeking to reverse the Circuit Court decision. The Supreme Court applied a deferential review standard to the contested ISO market rules tariff that it had approved for wholesale power contracts in last year's ruling, and reversed the Circuit Court's judgment. The Supreme Court's decision is likely to haunt states and consumer advocates in the future.
MORE -- http://pulpnetwork.blogspot.com/2010/01/activist-supreme-court-reaches-out-to.html
Report: Verizon to Double FiOS Early Termination Fee
According to a posting in DSL Reports, Verizon will be raising the early termination fee (“ETF”) for its FiOS television and broadband Internet service to $360 on January 17th. This amount will be double the $179 ETF in place in 2009 for a two year contract, and nearly two and a half times the $149 ETF in effect back in 2007. The report went on to state that the ETF will be pro-rated, decreasing slightly for every month under the contract. FiOS customers apparently can avoid the ETF if they sign up for residential voice service as well. However, users will be forced to pay this ETF if they move to a non-Verizon area. This increase comes on the heels of growing pressure from Congress and the FCC to reduce or eliminate ETFs for wireless services. It is time to cast a critical eye on ETFs in areas other than wireless as well.
MORE -- http://pulpnetwork.blogspot.com/2010/01/report-verizon-to-double-fios-early.html
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THE PUBLIC UTILITY LAW PROJECT OF NEW YORK, INC., IS A NOT-FOR-PROFIT ORGANIZATION WHICH HAS REPRESENTED THE INTERESTS OF LOW INCOME UTILITY CONSUMERS SINCE 1981, ADVANCING UNIVERSAL SERVICE, AFFORDABILITY, AND CUSTOMER PROTECTION.
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