Texas PUC Staff Favor Dismissal Of REP Complaint Concerning TDU's Alleged Failure To Execute DNP On Critical Care Customer -- EnergyChoiceMatters.com

Texas PUC Staff Favor Dismissal Of REP Complaint Concerning TDU's Alleged Failure To Execute DNP On Critical Care Customer

November 14, 2023

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Reporting by Paul Ring • ring@energychoicematters.com

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Staff of the Texas PUC favor dismissing a complaint filed at the Texas PUC by Spark Energy, LLC (Spark) in which Spark had alleged violations of PUC rules due to CenterPoint Energy Houston Electric, LLC's (CEHE, CenterPoint Houston, or CenterPoint) alleged, "refusal to disconnect a critical care customer served by CenterPoint."

See background on the complaint here

PUC Staff said, "Staff agrees with the position stated by CenterPoint regarding the complaint now being moot as the customer has switched to another Retail Electric Provider and is no longer represented by Spark Energy. Additionally, Staff would state that this [sic] Spark Energy is unable to ask for recovery of Customer invoices from CenterPoint as CenterPoint stopped assessing transmission and distribution charges to Spark Energy, except for securitization-related charges, after rejection of disconnection for nonpayment of a critical care customer. Therefore, the charges that Spark Energy seeks reimbursement for are charges that Spark Energy continued to accrue against the critical care customer after CenterPoint rejected disconnection."

"Staff additionally does not believe this is the correct venue to opine on whether the policy regarding disconnection of critical care customers needs revision. Therefore, Staff supports CenterPoint's motion to dismiss," Staff said

Spark, earlier, had responded to CEHE's motion to dismiss by stating, "CenterPoint’s Motion to Dismiss is based on two main arguments: the customer at issue is no longer a Spark customer, and therefore the matter is moot; and the Commission does not use individual proceedings to decide policy issues."

Spark alleged, "CenterPoint’s first argument glosses over Spark’s assertion that CenterPoint violated a Commission regulation and that CenterPoint’s actions -- not the customer’s status as a Spark customer -- are the basis of the complaint. In addition, CenterPoint’s actions created economic harm to Spark; the customer leaving Spark did not render the controversy moot. As CenterPoint itself states in its Motion to Dismiss, 'Cases will be dismissed as moot when a party seeks a judgment upon some matter which cannot have any practical legal effect upon a then existing controversy.' Should Spark seek to recover damages from CenterPoint in District Court, it must first exhaust its administrative remedies and the determination of whether or not CenterPoint violated a Commission regulation will most definitely have a practical legal effect on an existing controversy regarding recovery of those damages in subsequent proceedings. As such, this matter is not moot. Furthermore, the cases relied on CenterPoint to support its first argument are easily distinguishable from the case at hand while there are other applicable cases which are more similar to this matter, in which the Commission denied motions to dismiss based on mootness."

Spark said, "In this instance, Spark has alleged that CenterPoint’s violated Commission rules and that violation harmed Spark. The fact that the Customer is no longer a Spark Customer may render two of the remedies sought by Spark moot, but does not dispose of the entirety of the proceeding. Whether CenterPoint violated Commission rules is a live controversy which the Commission has stated it has exclusive jurisdiction over. The question of whether CenterPoint violated Commission rules is properly before the Commission, the Commission has jurisdiction over the issue, and the issue is the first step in recovery of damages, which is a live controversy. Therefore, CenterPoint’s Motion to Dismiss on the grounds of mootness should be denied."

Spark said, "CenterPoint makes a second argument for dismissal on the basis the Commission does not use individual proceedings to decide policy issues. The fatal flaw with this argument is that Spark is not asking the Commission to decide policy issues nor does this case require policy issues to be decided. The Commission has already considered and addressed the relevant policy issues when it enacted the relevant regulations and made statements about critical care status not being a form of free electricity. In deciding what to do about critical care customers not paying for electricity, the Commission has already made the policy decision to allow retail electric providers to disconnect non-paying critical care customers. That policy has been considered and decided, and through the orders adopting the applicable regulations, the Commission has publicly stated the Commission’s decision on those policy issues. There is no need for the Commission to decide policy issues in this case and therefore, CenterPoint’s second basis for dismissal does not warrant dismissal."

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