Chief Judge: Retail Suppliers Not Obligated To Inform PSC Staff Of Complaints In Other States

December 28, 2023

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Copyright 2010-23 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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Retail electric suppliers in Maryland are not obligated to inform Maryland PSC Staff of complaints in other states as a condition of licensure, nor can such complaints be relied upon by the PSC in determining whether to revoke a supplier's certificate or in imposing other remedies such as a civil penalty, the PSC's Chief Public Utility Law Judge (PULJ) has ruled

The matter at hand involves SunSea Energy, LLC (SunSea or the Company) and a data request issued to SunSea by Maryland PSC Staff, during the phase of a proceeding which is to determine, among other things, "the full extent to which the Company has violated Maryland laws and regulations in its marketing, enrollment and contracting practices, or any other violations of the consumer protection statutes and Commission regulation," and appropriate remedies, including potentially, "customer refunds, [and] civil penalties."

The PSC has already concluded that SunSea had committed certain violations and ordered the return of its Maryland customers to default service (see details here); but, as noted, the PSC delegated further proceedings to address the full extent of any violations and appropriate remedies.

As part of such further proceedings, PSC Staff issued a data request seeking that SunSea provide a status update on all new and existing complaints filed against SunSea throughout the United States. Staff said that such information is needed to determine an appropriate civil penalty recommendation

SunSea objected to the data request arguing that, among other things, the data request impermissibly sought to expand the scope of the proceeding, which is limited to alleged violations of Maryland law

With respect to out-of-state complaints, the PSC's Chief Public Utility Law Judge (PULJ) agreed with SunSea, finding that Staff's arguments were not supported by the language of the Maryland code or retail supplier responsibilities under the Maryland electric supplier license application

Specifically, Staff had cited PUA § 7-507(k) in support of Staff's request to compel production of the out-of-state complaint information

However, PUA § 7-507(k), which lists the "just cause" under which an electric supplier license my be suspended or revoked, or under which a civil penalty may be levied, only permits consideration of, "suspension or revocation of a license by any State or federal authority," and not simply complaints to such other State or federal authority, the PULJ said

Staff also argued that the out-of-state complaint data is required to be produced due to the ongoing licensing obligations of an electric supplier in Maryland

The Maryland electric supplier license application requires disclosure of, "Actions such as Suspensions/Revocations, Limitations, Reprimands, Fines, Consent Decrees or other similar actions [that] have been taken or are pending against the Applicant or unregualteed affiliate(s). If checked, provide an attachment describing the action; and include docket numbers, offense dates, case numbers, if applicable," and the application further states, "Pursuant to COMAR Title 20, Subtitle 51, Chapter 3, Section .01 – within 30 days of a material change, a licensed supplier must update or supplement the information required in the Application under COMAR 20.51.02.02B(1), (4) and (5)."

However, the PULJ said that "complaints" are not encompassed by the licensing application language, and thus there is no duty to provide updated information to the PSC on such

"I also disagree with Staff’s argument that a supplier’s duty to disclose the existence of complaints is required by the Commission’s supplier application. A complaint falls outside of 'Suspensions/Revocations, Limitations, Reprimands, Fines, Consent Decrees, or other similar actions [that] have been taken or are pending against the Applicant or unregulated affiliate(s),' all of which would trigger a supplier’s ongoing duty to disclose such information," the PULJ said

Case 9647

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