Opinion
No. CV 09 5013969S
May 11, 2010
MEMORANDUM OF DECISION
The plaintiff, Office of Consumer Counsel (OCC), brings this appeal pursuant to General Statutes §§ 4-176(h) and 4-183 from an August 12, 2009 declaratory ruling of the Department of Public Utility Control (DPUC) which was requested by OCC. A party affected by the DPUC declaratory ruling, Connecticut Natural Gas Corporation (CNG), has also participated in this appeal as an appellee. United Illuminating Company and Connecticut Light and Power Company (CLP) have intervened and adopted the position of the DPUC.
OCC is aggrieved pursuant to § 16-2a. The requirements of the practice book for declaratory judgment actions, P.B. § 17-56 have been satisfied by OCC.
The background to the issuance of the August 12, 2009 declaratory ruling is as follows. On August 6, 2008, the DPUC issued a ruling entitled "Investigation into [CLP's] Billing Issues." [Docket No. 08-02-06]. In this ruling, the DPUC "disallow[ed] recovery of all costs related" to a CLP billing error, through DPUC's interpretation of § 16-259a (the "billing statute"). The billing error had arisen when CLP failed to issue bills to some customers in their established billing cycles. The DPUC held that the remedy for such "non-billing" was provided by § 16-259a, that CLP had met the "required one year period" of the statute for holding affected customers liable and that pursuant to that statute, a payment plan over a minimum period of twelve months be established.
On September 24, 2008, the DPUC issued a second ruling in Docket No. 08-02-02 entitled "Petition of the [OCC] for DPUC Investigation into CNG Billing Issues" [hereinafter the September 24, 2008 CNG ruling]. In this ruling, the DPUC commented on a situation where four meter readers had submitted false meter readings and CNG had subsequently re-billed customers under § 16-259a. The ruling, finding that CNG had notified affected customers within the one-year statutory deadline, allowed the re-billing by CNG, but required payback by CNG customers to extend over a period of at least twelve months, without assessing late fees, penalties or interest.
On October 24, 2008, OCC appealed from the September 24, 2008 CNG ruling.
On January 14, 2009, this court granted the DPUC's and CNG's motions to dismiss OCC's administrative appeal. The court ruled that the appeal was not from a "final decision" as the three statutes on which jurisdiction was based (§§ 16-11, 16-20 and 16-259a) did not mandate a hearing to be held by the DPUC. See Dadiskos v. Connecticut Real Estate Commission, 37 Conn.App. 777, 782, 657 A.2d 717 (1995) ("[i]f a hearing is not statutorily mandated, even if one is gratuitously held, a contested case is not created"). OCC appealed to the Appellate Court from this court's decision, but later withdrew its appeal on May 7, 2009.
Subsequently on March 12, 2009, OCC filed a declaratory judgment action pursuant to § 4-175 raising issues regarding the September 24, 2008 CNG ruling. CNG and the DPUC moved to dismiss this suit and OCC withdrew it on May 7, 2009. On May 15, 2009, OCC filed a petition for a declaratory ruling with the DPUC. In its petition, OCC set forth the interpretation that it claimed the DPUC had given to § 16-259a prior to 2008. It then contended that in the August 6, 2008 decision involving CLP and in the September 24, 2008 CNG ruling, the DPUC had departed from prior rulings and had misconstrued § 16-259a.
On June 30, 2009, the DPUC, in a draft decision, "determine[d] that [a declaratory ruling] would not be rendered" pursuant to Regulation § 16-1-115(c). (ROR, Item III, 1.) After OCC filed exceptions to the draft, a second draft setting forth a declaratory ruling was issued (ROR, Item III, 2) and was adopted as the final decision on August 12, 2009. (ROR, Decision, Item IV, 1.)
The August 12, 2009 decision stated that the DPUC was "[p]ursuant to Conn. Gen. Stat. § 4-176(e)" issuing a declaratory ruling, affirming "the analysis, interpretation and application of section 16-259a that the Department articulated in the [August 6, 2008] CLP Decision and [September 24, 2008] CNG Decision." These prior rulings were attached to the declaratory ruling "as Exhibits A and B, respectively." (ROR, Decision, Item IV, 1, p. 2.)
After the issuance of the August 12, 2009 declaratory ruling, OCC appealed to this court. CNG appealed as well, claiming that the DPUC erroneously issued a declaratory ruling and should have declined to issue such a ruling, as it had proposed in the first draft opinion. In that appeal, the court concluded that the DPUC did not err in accepting OCC's petition for a declaratory ruling under § 4-176 and following the issuance of the declaratory ruling, OCC was permitted under § 4-176(h) to appeal to the Superior Court. See Connecticut Natural Gas Corp. v. Dept. of Public Utility Control, Superior Court, judicial district of New Britain, Docket No. CV 09 5014189S (February 17, 2010, Cohn, J.). The parties thereafter returned to this court to argue the merits of OCC's appeal.
The court reviews the DPUC's granting of OCC's declaratory ruling to determine whether it acted "unreasonably, arbitrarily, illegally or in abuse of its discretion." Connecticut Ass'n. of Not-for-Profit Providers for the Aging v. Dept. of Social Services, 244 Conn. 378, 390, 709 A.2d 1116 (1998); Autotote Enterprises, Inc. v. State, 978 Conn. 150, 154, 898 A.2d 141 (2006). The court must therefore decide whether the two underlying declaratory rulings that make up the August 12 declaratory ruling are valid.
This, in turn, depends upon whether the DPUC or OCC has properly construed § 16-259a. Construction of a statute is a legal matter for the court to decide. See Livingston v. Dept. of Consumer Protection, 120 Conn.App. 92, 97 (2010).
Further, "[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratexual evidence of the meaning of the statute shall not be considered . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Citations omitted.) Fairchild Heights, Inc. v. Amaro, 293 Conn. 1, 8-9, 976 A.2d 668 (2009).
The court does not consider that § 16-259a is ambiguous; but even if the court consulted the 1996 legislative history, the only issue discussed was the amount of time for back-billing. The pre-amendment statute was for six months or three billing cycles, the proposed bill extended the time to two years and a floor amendment reduced the time to one year, as the statute now reads. Since the focus was on the time period, the legislative history does not assist on the issue of whether the collection must take place within one year. "At least the amendment makes it one year, which means they should be a little more sharper in their billing practices. And if they can't find it after one year, then the customer shouldn't have to pay the bill." (Rep. Veltri, April 25, 1996, p. 2560.) The court notes that the legislator stated "find it," and not "resolve it."
Section 16-259a had its current origin in P.A. 96-136. Subsection (a) of the statute by the 1996 amendment provided that utilities that inaccurately bill retail customers for service may not bill or otherwise hold customers financially liable for more than one year after a customer receives the service provided by the utility. P.A. 96-136 also amended § 16-259a by adding subsection (d). This subsection provides that a utility holding a customer financially liable under subsection (a) must establish a payment plan "which prorates all arrearages for service the customer owes over a period of time that is no shorter than the period for which the customer is being held financially liable" by the utility. And "[t]he payment plan shall provide that no payment charged to a customer under such plan shall exceed fifty percent of the average amount that the company charged such customer for each billing period over the previous twelve-month period for services received during that period."
Prior to this amendment, § 16-259a(a) provided that the utility could not bill or otherwise hold customers financial liable for more than six months or three billing periods whichever was longer.
OCC argues that the DPUC has erred in its declaratory ruling with regard to the CLP decision and the CNG decision in two ways. It first claims that the DPUC erred in concluding that § 16-259a applies at all to the CLP situation, that is where no billing at all occurred. According to OCC, this is not "inaccurate billing." It analogizes to the case of J.D.C. Enterprises v. Dept. of Public Utility Control, Superior Court, judicial district of Hartford, Docket No. 960556973 (October 8, 1996, Maloney, J.). In J.D.C. the court rejected the application of § 16-259a to J.D.C. The entity was receiving service, but was not initially billed by the utility. When discovery was made that it had not been billed for electricity, the utility billed J.D.C.; J.D.C. then argued that its liability should be determined under § 16-259a. The court held § 16-259 inapplicable because J.D.C. was an "unauthorized and undetected user of electrical service."
In the August 6 CLP declaratory ruling, the DPUC stated at 16: "Conn. Gen. Stat. § 16-259a clearly applies to situations where a utility company fails to issue scheduled bills to its customers. It is undisputed that Conn. Gen. Stat. § 16-259a would apply when a utility company under-bills its customers, and that the company would be required to comply with the provisions of this statute in collecting the under-billed amount. Non-billing is essentially under-billing by the entire bill amount. It would he illogical to apply the statute such that the protections of Conn. Gen. Stat. § 16-259a are afforded to only customers who are under-billed by a lesser amount but not to customers who are under-billed by the entire bill amount. As the AG aptly stated in its Brief, `it would be an absurd result if a utility company that sends no bill were permitted to evade the reach of § 16-259a whereas a company that sends inaccurate bills for $1 would be covered by its provisions.'"
The court agrees with the DPUC interpretation that § 16-259a applies to a failure to bill a customer as well as to under-billing. This is not a J.D.C. situation, of unauthorized useage by an alleged non-customer. The language of § 16-259a indicates that the legislative intent was to protect "customers," as is the situation here.
The second contention made by OCC relates to both the CLP and CNG declaratory rulings. It argues that § 16-259a(a) provides that no utility may re-bill or otherwise hold customers liable "for more than one year after the customer receives such service." This means, according to OCC, that the utility must resolve the under-billing within the one-year period, running from the time that the customer first receives service. OCC supports this proposition with statements in an unrelated DPUC decision in Docket No. 97-05-02, at page 4: "Therefore, the Department concludes that the one year limitation period is taken from the end of the service billing period, not from the billing date even if the billing date is later . . . The statutory time limitation [of § 16-259a(a)] provides customers protection from inaccurate billings, with certain exceptions. The time limitation provides that an underbilling mistake by the utility will not be charged to the customer once one year passes."
OCC argues that its interpretation will cause utilities to resolve consumer debts more quickly than under the DPUC's interpretation, discussed below.
The DPUC differs with OCC, and CNG, as well as the intervenors, join the DPUC position. In the August 6 CLP ruling, the DPUC stated at page 17: "For purposes of interpreting and applying section 16-259a, it is critical that the reader understand the distinction that `billing or holding financially liable' is entirely different from `receiving or collecting' payments from the customer. It cannot be emphasized strongly enough that subsection (a) prohibits a company from `billing or holding a customer financially liable' after one (1) year; it does not prohibit `recovery or payments' past one (1) year after the date of service. Without grasping this latter key understanding of how the language of the statute operates, conflicting and illogical statutory interpretations are inevitable."
In the September 24 CNG decision, the DPUC again relied on this analysis at page 12: "[T]he express language of Conn. Gen. Stat. § 16-259a does not support OCC's assertion. The limitations on `both timing and monthly amount' referred to by the OCC are only prescribed in subsection (d), which governs only the terms of the payment plans for all arrearages, not the companies' ability to back-bill. The companies' ability to back-bill is addressed in subsection (a). Contrary to the OCC's claim, there is no `monthly amount' limitation in subsection (a)."
The court agrees with the DPUC's interpretation. Normally in interpreting a statute, the court may look for guidance to the agency's interpretation. But even if the court accepts OCC's argument that the DPUC's interpretation of § 16-259a is not sufficiently "time-tested," Board of Selectmen v. Freedom of Information Commission, 294 Conn. 438, 446, 984 A.2d 748 (2010), the court must adopt a construction that makes the statute effective and workable. Nizzardo v. State Traffic Commission, 259 Conn. 131, 157, 788 A.2d 1158 (2002). "The law favors a rational statutory construction and we presume that the legislature intended a sensible result." (Citation omitted.) Wiele v. Board of Assessment Appeals, 119 Conn.App. 544, 551-52, 988 A.2d 889 (2010).
OCC's interpretation would lead to the result that, in the case of longer periods of time of under-billing mistakes, the utility would be unduly restricted by the payment plan required under subsection (d). See examples in the DPUC brief at page 15; CNG brief at pages 27-28. It is certainly rational to make a distinction, as the DPUC has, between "liability" and "payment" in the regulation of public utilities. See Colorado Interstate Gas Co. v. Chemco, Inc., 854 P.2d 1232, 1237 (Colo. 1993) (separately analyzing liability and obligation to make payment under a gas contract). The DPUC interpretation of § 16-259a makes sense of the statutory language and has captured the legislative intent. See Connecticut Light Power v. Texas-Ohio Power, Inc., 243 Conn. 635, 708 A.2d 202 (1998).
One example given by CNG is where a utility under-bills for two years at $30 per month, where the correct billing should be $100 per month. The customer is given notice that the utility will re-bill from February of the second year. Subsection (a) eliminates the right of the utility to bill at all for the first year. Subsection (d) requires that the utility not bill the customer for more than $15 per month in addition to the current charge. Under the DPUC interpretation, the payment plan extends until the arrearage is paid off. OCC's position is that after the billing for one year, the customer does not owe any more, and the utility would forfeit the remainder of the payment plan.
OCC, in addition, has misread the earlier DPUC decisions (including #97-05-02, quoted above) when it argues that these decisions state anything more than that subsection (a) limits back-billing to one year from commencement of service. To conclude, the DPUC has correctly interpreted § 16-259a in its CLP and CNG declaratory rulings; it has not acted illegally, arbitrarily or in abuse of discretion. See Perry Thompson Third Co. v. City of New York, 718 N.Y.S.2d 306 (App. Div. 2000) (finding that a water board had correctly applied the New York back-billing statute).
In any event, "it is a rare case in which a court will reverse an administrative body because of its failure to apply the doctrine of stare decisis, or because in a particular case it has departed from the policy expressed in earlier cases." New Britain v. Connecticut State Board of Labor Relations, 31 Conn.Sup. 211, 215, 327 A.2d 268 (1974), quoting 2 Cooper, State Administrative Law at 532. "Reconsideration of a previously stated policy is a prerogative of administrative agencies, which are ordinarily not restrained under the doctrine of stare decisis or on the grounds of equitable estoppel." Id., citing 73 C.J.S., Public Administrative Bodies and Procedure, § 148.
The OCC appeal is therefore dismissed.