BEFORE THE PUBLIC SERVICE
COMMISSION
OF THE STATE OF MISSOURI
Jimmie E. Small, )
)
Complainant, )
)
v. ) File No. EC-2015-0058
)
Union Electric Company )
d/b/a Ameren Missouri )
)
Respondent. )
NOTICE OF RECOMMENDED
REPORT AND ORDER
Issue Date:
Jun 30, 2015
The regulatory law judge is issuing
the recommended report and order attached. The recommended report and order is
not a final order of the Commission. The parties have ten days from the date
of this notice to file comments about the recommended report and order. After
the time for comments has passed, the Commission will consider the recommended
report and order and any comments it receives. The Commission will then issue
a final order either approving or rejecting the recommended order. [1]
BY THE COMMISSION
Morris
L. Woodruff
Secretary
Daniel Jordan, Senior Regulatory Law Judge,
by delegation of authority pursuant to
Section 386.240, RSMo 2000.
Dated at Jefferson City, Missouri,
on this 30th day of June, 2015.
BEFORE THE PUBLIC SERVICE COMMISSION
Jimmie E. Small, )
)
Complainant, )
)
v. ) File No. EC-2015-0058
)
Union Electric Company )
d/b/a Ameren Missouri )
)
Respondent. )
Issue Date: ___ Effective
Date: ___
The
Missouri Public Service Commission is denying relief on the complaint of Jimmie
E. Small against Union Electric Company d/b/a Ameren Missouri
(“Ameren”). Mr. Small charges that Ameren unlawfully denied him service and
failed to give him notice related to that denial. But Mr. Small has never made
a payment on his present account, owes $846.15 on that account, and has never
applied to resume service. Therefore, Ameren owes Mr. Small neither service nor
notice. This report and order is subject to an application for rehearing filed
no later than the business day before the effective date of this report and
order, and is also subject to judicial review, both as set forth in
Sections 386.500 to 386.540, RSMo 2000 and RSMo Supp. 2013.
Mr. Small filed the complaint.[2] Ameren filed an answer.[3] The
Commission’s staff (“Staff”) filed a recommendation.[4] The Commission convened an evidentiary
hearing on the merits of the complaint.[5] Ameren supplemented the record.[6] The Commission received a correction to the
transcript.[7]
Mr. Small filed an initial brief.[8] Ameren filed a brief.[9] Mr. Small filed a reply brief.[10] The Commission denied Mr. Small’s
post-hearing motions.[11] In addition, Mr. Small also made numerous
pre-hearing motions and filings, many of them successive.[12] Those filings, the other parties’ right to
respond, and the related orders, constitute good cause to extend the time for
issuing this recommendation.[13]
The regulatory law judge issued a
recommended decision.[14] The Commission received timely comments[15] on the recommended decision from ___ . [16] The Commission is ___ the recommended
decision ___ . [17]
Standards
of Proof
Mr.
Small has the burden of proving the allegations in his complaint.[18] The quantum of evidence by which Mr. Small
must carry his burden is the preponderance of the evidence.[19] The preponderance means the evidence that
weighs more in favor[20]
than against[21] the
petition and tariff.
The
Commission does not specifically discuss matters that are not dispositive. The
Commission makes each ruling on consideration of each party’s allegations and
arguments, and has considered the substantial and competent evidence on the
whole record. Where the evidence conflicts, the Commission must determine which
is most credible and may do so implicitly.[22] The
Commission’s findings reflect its determinations of credibility, and no law
requires the Commission to make any statement as to which portions of the
record the Commission believes or disbelieves.[23]
Under those standards, the Commission makes
the following findings of fact.
1.
Ameren
is authorized to sell electrical service at retail for profit. [24]
2.
On
April 14, 2007, Ameren terminated Mr. Small’s residential service (“previous
account”) for failure to pay. [25] Mr. Small later paid amounts toward the balance
due on the previous account. [26] Ameren transferred the balance due under
the previous account to a new account (“present account”). [27]
3.
On
December 20, 2007, Ameren resumed residential service to Mr. Small under the
present account. [28] Ameren sent Mr. Small monthly bills[29] but Mr. Small made no payment under the present account. On
April 14, 2008, Ameren terminated Mr. Small’s residential service for failure
to pay.[30] As of that date, Mr. Small owed $846.15 on
the present account. [31] Mr. Small received Ameren’s bill for that
amount. [32]
4.
On
February 4, 2011, Mr. Small filed a complaint to which the Commission assigned
File No. EC-2011-0247.[33] After Mr. Small failed to respond to three
Commission orders, the Commission issued its order dismissing that action without
prejudice, effective August 7, 2011. [34]
5.
On
August 15, 2011, Mr. Small filed a document, which the Commission treated as a
new complaint and assigned File No. EC-2012-0050. [35] After Mr. Small failed to appear at the
hearing that the Commission convened on the merits of the complaint, the
Commission issued its order dismissing that action without prejudice effective
August 30, 2013.[36]
6.
Ameren
has a contact center that houses Ameren personnel who are authorized to process
applications for residential service and are available by a toll-free telephone
number. [37]
7.
In
Kirkville, Missouri, Ameren has a field office that houses an Ameren
construction supervisor and marketing representative. [38] The marketing representative has authority
only as to commercial accounts. [39] No personnel authorized to process
applications for residential service are housed in the field office. [40]
8.
On
August 29, 2014, Mr. Small went to the Kirksville field office. [41] Mr. Small asked the commercial marketing representative
to connect his service.[42] The commercial marketing representative
told Mr. Small that she lacked authority to process a residential account and
instructed him to call Ameren’s contact center at the toll-free number.[43] Later that day, the construction supervisor
telephoned Mr. Small and instructed him to call Ameren’s contact center at the
toll-free number. [44]
9.
Later
by telephone and by letter dated September 28, 2014, Ameren’s regulatory
liaison instructed Mr. Small to call Ameren’s contact center at the toll-free
number. [45]
10.
Mr.
Small never called Ameren’s contact center. [46]
11.
On the
present account, Mr. Small has never made a payment, and still owes Ameren
$846.15. [47]
The Commission has jurisdiction to determine
whether Ameren violated any statute, regulation, tariff, or Commission order.[48] Mr. Small alleges that Ameren denied him
service, and that such denial constitutes retaliation and unlawful
discrimination. Mr. Small also argues that Ameren failed to give him notice of
his rights as required by law. Ameren responds that it did not deny service to
Mr. Small. Ameren is correct and that conclusion negates all other charges in
the complaint. Nevertheless, in the interest of administrative efficiency and
judicial economy, the Commission will determine the other claims and defenses
under the complaint.
A. Discriminatory Denial
Mr. Small charges Ameren with retaliatory
discrimination, which is contrary to the following Commission regulation:
[Ameren] shall not discriminate against a customer
or applicant for service for exercising any right granted by this chapter. [[49]]
Mr. Small alleges that Ameren denied him
service in retaliation for filing the actions in File Nos. EC-2011-0247 and
EC-2012-0050. Mr. Small also argues that Ameren is discriminating against him
in violation of various provisions of law because he is a senior white male, a
disabled Viet Nam veteran, and a resident of Iowa.
Ameren
responds that it did not deny Mr. Small any application for residential
service. In support, Ameren cites the Commission regulation that defines denial
of service, which means refusing the request of an applicant:
Denial of service
means the utility's refusal to commence service upon an applicant's request for
service at a particular location
[.[50]]
An applicant is one who has applied to
receive residential service:
Applicant means an
individual(s) or other legal entity who has applied to receive residential
service [.[51]]
Mr. Small is not an applicant, Ameren argues,
because he did not apply to receive residential service.
An
application for residential service under Ameren’s tariff includes the
following:
Any customer requesting electric service
within [Ameren]'s authorized service area will provide [Ameren] with
appropriate information regarding the quantity and characteristics of the
anticipated electric consumption and location of the premises to be served.
Appropriate personal customer identification may also be required at the
request of [Ameren]. Customer or customer’s agent shall select the rate, and
any applicable riders, from [Ameren]’s currently applicable rate schedules, for
which customer qualifies at that time. [[52]]
That
language assumes the engagement of Ameren personnel, authorized to procure and
process the information described, such as are present at the contact center.
Mr.
Small has not controverted the evidence showing that no such personnel were
present in the field office. Mr. Small asked for service from commercial
marketing personnel and construction personnel whom he happened to encounter
there. Those personnel had no more authority to process an application for
residential service than any lineman, secretary, or other random employee of
Ameren. Nevertheless, the field office personnel helpfully instructed Mr. Small
to call the contact center and gave him the toll-free number. And Mr. Small
simply chose not to do so.
The
Commission concludes that Mr. Small’s actions did not constitute an application
for residential service, so no denial of service occurred, and Mr. Small has
not shown that Ameren committed any unlawful discrimination.
B. Notice of Denial
Mr.
Small also argues that Ameren failed to provide him with a notice of refusal as
required by law. A notice of refusal is necessary under Commission regulations:
When the utility refuses to provide service
to an applicant, it shall inform the applicant in writing, and shall maintain a
record of the written notice [.[53]]
Mr. Small further argues that he has a
constitutional right to discuss unpaid charges with Ameren management, and a
constitutional right to notice that such discussion is available. Because no
denial of service occurred, no notice was due, even under Mr. Small’s theory.
In
the alternative, even if a denial of service did occur, Mr. Small has not shown
any constitutional right to discuss unpaid charges with Ameren management, nor
to any notice that such discussion was available. In support of his theory, Mr.
Small cites Memphis Light, Gas and
Water Division v. Craft.[54] That opinion holds that the due process of
law entitles a customer to an “opportunity for a meeting with a responsible
employee empowered to resolve the dispute” [55] and notice of that right “prior to”[56] disconnection from a government-owned
utility:
Memphis Light, Gas and Water Division
(MLG&W)1 is a division of
the city of Memphis which provides utility service. It is directed by a
Board of Commissioners appointed by the City
Council, and is subject to the ultimate control of the municipal government. As a municipal
utility, MLG&W enjoys a statutory exemption from regulation by the
state public service commission. [[57]]
The utility was subject to the Due Process
clause because it was a unit of government:
The Fourteenth Amendment places procedural constraints
on the actions of government that
work a deprivation of interests enjoying the stature of “property” within the
meaning of the Due Process Clause. Although the underlying substantive interest
is created by “an independent source such as state law,” federal constitutional
law determines whether that interest rises to the level of a “legitimate claim
of entitlement” protected by the Due Process Clause. [[58]]
Ameren is not a government utility, and
disconnection is not the subject of the complaint, so the holding in Memphis Light does not apply.
Nothing
in Memphis Light gives Mr.
Small any constitutional right to a discussion with Ameren management. Nothing
in Memphis Light gives Mr.
Small any constitutional right to a notice that such discussion is available.
Therefore, the Commission concludes that Ameren did not violate any provision
related to notice of refusal.
C. Grounds for Denial
In
the alternative, even if application and denial of service did occur, Ameren
has shown grounds for its conduct. Refusal of service is subject to the
Commission’s regulation on refusal of service:
[Ameren] may refuse to commence service to
an applicant for any of the following reasons:
(A)
Failure to pay a delinquent utility charge for services provided by that
utility or by its regulated affiliate that is not subject to dispute under
applicable dispute review provisions of 4 CSR 240-13.045 [.[59]]
The dispute review provisions of 4 CSR
240-13.045 for “an applicant” state:
When an applicant or customer advises a
utility that all or part of a charge is in dispute, the utility shall record
the date, time, and place the contact is made; investigate the contact promptly
and thoroughly; and attempt to resolve the dispute in a manner satisfactory to
both parties. [[60]]
Even if Mr. Small registered a dispute,
Ameren’s tariff would not require commencement of service under Ameren’s
tariff.
Under
Ameren’s tariff, a former customer or an applicant is a “customer:”
Any person, developer, firm, organization,
association, corporation or other entity that applies for, or is responsible
for payment for electric service from Company, or was responsible for payment
for electric service [.[61]]
No applicant is entitled to service while an
amount is due on a previous account as follows:
[Ameren] shall not be required to commence
supplying service to a customer . . . if at the time of application such
customer . . . is indebted to [Ameren] for the same class of service previously
supplied . . . until payment of, or satisfactory payment arrangements for, such
indebtedness shall have been made [.[62]]
Therefore, Ameren need not supply Mr. Small
until he makes satisfactory payment arrangements for his indebtedness. Mr.
Small remains indebted to Ameren for past service, or the amount due, or that
he has not made any arrangements for payment. Therefore, the Commission
concludes that Ameren has grounds for refusing service to Mr. Small.
THE COMMISSION ORDERS THAT:
1.
All
relief requested in connection with the complaint is denied.
2.
This
order shall be effective on ___ .
BY THE COMMISSION
Morris
L. Woodruff
Secretary
___
concur and certify compliance with
Section 536.080, RSMo 2000.
Dated at Jefferson City, Missouri,
on this [].
For Jimmie E. Small:
Jimmie E. Small
606 W. Highway 2
Milton, Iowa 52570
For Union Electric Company d/b/a Ameren
Missouri:
Sarah E. Giboney, Attorney at Law
Smith Lewis, LLP
111 South Ninth Street, Suite 200
P.O. Box 918
Columbia, MO 65205-0918
Matthew R. Tomc, Corporate Counsel
Ameren Missouri
P.O. Box 66149
St. Louis, MO 63166-6149
For the Staff of the Missouri Public Service
Commission:
Cydney D. Mayfield, Senior Counsel,
Missouri Public Service Commission,
P.O. 360
Jefferson City, MO 65102
Daniel Jordan, Senior Regulatory Law Judge.
Appendix
|
EFIS No. |
Date |
Document |
|
10 |
10/3/2014 |
Request for Transcript from EC-2012-0050 |
|
15 |
10/20/2014 |
Complainant's Rule 65.01 Motion for Continuance to Assimilate and File
Objections to Staff's Report and Recommendation to Dismiss and to Respond to
Respondent's Pleading to Dismiss, With Prejudice |
|
18 |
10/27/2014 |
Complainant's Motion to Strike Respondent's Alleged Debit Due Dated
September 8, 2014 |
|
21 |
10/31/2014 |
Complainant's Motion/Objection/Dispute/Disagreement with Staff's
Report/Recommendation to Reconsider Commission's Order to Redact HC/Privacy
Act Matters, as a Matter of Existing Missouri and Federal Privacy Act Laws |
|
24 |
11/13/2014 |
Motion for Leave to File for Summary Determination Beyond Commission
10/30/2014 Deadline |
|
25 |
11/14/2014 |
4 CSR 240-2.117 Motion for Summary Determination |
|
32 |
12/31/2014 |
Complainant's Motion for Extension of Time to Respond to Ameren
Company's 12/22/2014 Response Filing |
|
44 |
3/13/2015 |
Complainant's Rule 59.01 Request to Admit Facts |
|
45 |
3/17/2015 |
Complainant Rule 56.01 First Request for Production of Documents and
Things - Exhibit 1 |
|
49 |
4/1/2015 |
Complainant's MO.R. Civ. Proc. Rule 55.27(g) (3) Motion to Dismiss
Ameren Missouri's September 8, 2014 Alleged Electric Utility Bill Claim in
the State Amount of $846.15 |
|
57 |
4/13/2015 |
Letter from Complainant Regarding Interstate Commerce Violations |
|
58 |
4/16/2015 |
Complainant's Supplemental Pleading to Conform to on Commission File
Record Evidence |
|
61 |
4/20/2015 |
Complainant's Data Request Upon Respondent Union Electric Company, an
Electrical Utility Entity |
|
63 |
4/28/2015 |
Rule 55.33(b) Amendments to Conform to the Evidence; Motion for Leave to
Supplement Complainant's April 20, 2015 Testimony by Adding Relevant
Respondent's Admissions and Responses Served and Certified April 16, 2015 |
|
65 |
5/5/2015 |
Complainant's Post Hearing/Suggestions in Support for Commission Order
Favoring Applicant Out-of-State Party |
|
67 |
5/7/2015 |
Complainant's Mo. R. Civ. Proc. RULE 55.33 (b), (d), Supplemental
Pleading to Conform to on Commission File Record Evidence |
|
77 |
5/15/2015 |
Interrogatories to Respondent Utility Management, Kathy Hart Agent UE.AM.MO. |
[1] 4 CSR 240-2.070(15)(H).
[2] Electronic Filing and Information System (“EFIS”) No. 1 (August 29, 2014) complaint. All references to EFIS address this File No. EC-2015-0058 except as otherwise noted.
[3] EFIS No. 9 (October 2, 2014) Answer and Motion to Dismiss.
[4] EFIS No. 11, (October 8, 2014) Staff Recommendation to Dismiss Complaint with Prejudice.
[5] EFIS No. 64 (June 1, 2015) Transcript – Volume 1.
[6] EFIS No. 62 (April 23, 2015) Ameren Missouri Production of Documents to Presiding Officer Pursuant to 4 CSR 240-2.130(6).
[7] EFIS No. 67 (May 7, 2015) Notice of Correction Transcript Page.
[8] EFIS No. 65 (May 5, 2015) Complainant's Post Hearing/Suggestions in Support for Commission Order Favoring Applicant Out-of-State Party.
[9] EFIS No. 78 (May 19, 2015) Ameren Missouri's Post-Hearing Brief.
[10] EFIS No. 81 (June 12, 2015) Complainant's Post-Hearing Rule 84.(g) Reply Brief.
[11] EFIS No. 82 (June 23, 2015) Order Denying Post-Hearing Motions.
[12] Appendix.
[13] 4 CSR 240-2.070(15)(G).
[14] EFIS No. ___ ( ___ ) ___ .
[15] 4 CSR 240-2.070(15)(H).
[16] EFIS No. ___ ( ___ ) ___ .
[17] 4 CSR 240-2.070(15)(H).
[18] AG Processing, Inc. v. KCP & L Greater Missouri Operations Co., 385 S.W.3d 511, 515-16 (Mo. App., W.D. 2012).
[19] Spencer v. Zobrist, 323 S.W.3d 391, 398 (Mo. App., W.D. 2010).
[21] Hager v. Director of Revenue, 284 S.W.3d 192, 197 (Mo. App., S.D. 2009).
[22]
Stone v. Missouri Dept. of Health & Senior
Services,
350 S.W.3d 14, 26 (Mo. banc 2011).
[23] Stith v. Lakin, 129 S.W.3d 912, 919 (Mo. App., S.D. 2004).
[24] Ameren’s tariff: Mo. PSC Schedule No. 6, Sheet 96, paragraph I.A.
[25] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 25 line 16 to 22.
[26] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 28 lines 10 to 20.
[27] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 28 line 21 to page 29 line 29.
[28] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 28 line 7 to 9.
[29] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 29 line 6 to 25.
[30] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 1 to 22.
[31] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 23 to 25.
[32] EFIS No. 71 (May 11, 2015) Respondent’s Exhibit 1HC, Ameren Account Activity Statement (Written Off) 02/10/11.
[33] File No. EC-2011-0247 EFIS No. 1 (February 4, 2011) Complaint.
[34] File No. EC-2011-0247 EFIS No. 53 (July 27, 2011) Order Dismissing Complaint Without Prejudice.
[35] File No. EC-2012-0050 EFIS No. 1 (August 15, 2011) complaint.
[36] File No. EC-2012-0050 EFIS No. 152 (July 31, 2013) Order Dismissing Complaint.
[37] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 31 line 17 to page 32 line 13; page 81 line 5 to 13.
[38] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 31 line 10 to 16.
[39] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 31 line 10 to 16.
[40] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 31 line 17 to page 32 line 5.
[41] EFIS No. 1 (August 29, 2014) complaint.
[42] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 31 line 1 to 9.
[43] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 32 line 10 to 13.
[44] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 32 line 14 to 20.
[45] EFIS No. 75 (May 11, 2015) Exhibit 5, letter.
[46] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 32 line 21 to page 33 line 15.
[47] EFIS No. 64 (May 1, 2015) Transcript - Volume 1, page 23 to 25.
[48] Section 393.360.1, RSMo 2000.
[49] 4 CSR 240-13.010(2).
[50] 4 CSR 240-13.015(1)(K).
[51] 4 CSR 240-13.015(1)(A).
[52] Ameren’s tariff: Mo. PSC Schedule No. 6, Sheet 101, paragraph I.C.
[53] 4 CSR 240-13.035(1)
[54] Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1 (1978).
[55] Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 18 (1978).
[56] Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 18 (1978).
[57] Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 3-4 (1978) (emphasis added) (footnote and citation omitted).
[58] Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9 (1978) (emphasis added).
[59] 4 CSR 240-13.035(1).
[60] 4 CSR 240-13.045(2).
[61] Ameren’s tariff: Mo. PSC Schedule No. 6, Sheet 101, paragraph I.B.5 Application for Service.
[62] Ameren’s tariff: Mo. PSC Schedule No. 6, Sheet 101, paragraph I.C. Application for Service.