On January 24, 2020, the Commission issued Opinion No. 554-A, its Order On Rehearing, Directing Briefs, And Accepting In Part And Rejecting In Part Compliance Filings in this proceeding. The Commission arbitrarily and capriciously ruled that Potomac-Appalachian Transmission Highline (“PATH”) should re-recover its costs for its civic and political expenditures and General Advertising, completely reversing and contradicting its own
findings in Opinion No. 554 issued on January 19, 2017, and in violation of PATH’s approved
Formula Rate. Opinion No. 554-A erroneously interprets the Commission’s existing accounting regulations, specifically exempting PATH’s expenses from Account 426.4 based on unstated and unwritten requirements, and introduces regulatory uncertainty. It also unduly intrudes into state jurisdiction by encouraging transmission owners to compromise the integrity of the state regulatory process at ratepayer expense. Opinion 554-A is based on substantial legal error, not supported by substantial record evidence, and is not the product of reasoned decision making for benefit of the ratepayers that the Commission serves. The Opinion is an extremely belated action that harms consumers and can only be deemed arbitrary and capricious and not the product of reasoned decision-making.
The Commission issued a well-reasoned and well-supported accounting determination in this proceeding in 2017. It followed that Opinion with further written guidance on calculating refunds (even going so far as to create spreadsheets for PATH to fill out), and an additional Order on compliance filings that required PATH to make additional refunds of advertising costs, or explain them in accordance with its Formula Rate. We note that the three Commissioners sitting today concurred in that Order. The refunds have been accomplished and the matter was headed for closure. If the Commission had concerns about its Opinion No. 554, it was not
evident during that time period. The Commission spent plenty of time making sure the refunds ordered were carried out, but could not find the time to consider PATH’s Request for Rehearing until after the refunds were accomplished.
What changed? The expenditures did not change. The Commission’s accounting regulations did not change. The Commission’s precedent did not change. The Commission’s
opinion is the only thing that changed. The Commission did not choose to clarify its previous opinion. It did not choose to modify its previous opinion. It did not choose to change its regulations to effect new policy in a separate proceeding. It chose to completely flip-flop on its prior opinion in a poorly supported new opinion, reverse its findings, and deem the expenditures recoverable using arguments and precedent that it initially rejected in Opinion No. 554. This is the epitome of an arbitrary and capricious action. The Commission appears to be fighting itself
here, not making well-reasoned decisions in the interest of the consumers it serves.
Therefore, in accordance with Rule 713 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.713 (2016), Keryn Newman and Alison Haverty, parties pro se, submit this Request for Rehearing. The Commission should reverse Opinion No. 554-A and restore its findings in Opinion No. 554, approve compliance filings for amounts already refunded to ratepayers, and reestablish the regulatory certainty it once provided to the entities it regulates through long-standing precedent and guidance provided by its accounting regulations.
We began by wondering what had changed in the intervening years between Opinion No. 554 and Opinion No. 554-A. The only answer we can find is a clear instance of confirmation
bias where limited examination of the record, regulations, and precedent was performed to
support granting PATH’s Request for Rehearing. It’s almost like the Commission made the decision to grant PATH’s request in isolation, and then went on a futile search to find (or simply invent) support for its decision later. Opinion No. 554-A is an arbitrary and capricious decision by the Commission, completely unhinged from evidence, regulations, or precedent. This is a hallmark of a captured regulatory agency making arbitrary decisions in favor of those it regulates, and not based upon an impartial evaluation of the law for the benefit of the consumers it exists to serve. This is not regulation in the public interest.
We hereby request that the Commission set this matter for rehearing and restore its findings made in Opinion No. 554.
That's the beginning and the end. Want to read what came in between? You can read the entire filing here.
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