State ex rel. Utilities Commission v. Intervenor Residents of Bent Creek/Mt. Carmel Subdivisions

278 S.E.2d 761, 52 N.C. App. 222, 1981 N.C. App. LEXIS 2443
CourtCourt of Appeals of North Carolina
DecidedJune 2, 1981
DocketNo. 8010UC827; No. 8010UC1060
StatusPublished
Cited by3 cases

This text of 278 S.E.2d 761 (State ex rel. Utilities Commission v. Intervenor Residents of Bent Creek/Mt. Carmel Subdivisions) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Utilities Commission v. Intervenor Residents of Bent Creek/Mt. Carmel Subdivisions, 278 S.E.2d 761, 52 N.C. App. 222, 1981 N.C. App. LEXIS 2443 (N.C. Ct. App. 1981).

Opinion

CLARK, Judge.

These two appeals concern the same utility and the same in-tervenors. It appears from the record that the contract approval case arose out of the rate case. The parties agreed to consolidate the cases for hearing. We elect, therefore, to file one opinion settling both appeals. Although the issues are related, for the sake of clarity, we will treat the appeals separately, beginning with the rate case.

Intervenors’ first argument is that the Utilities Commission should not have considered the expenses allocated from CWS and WSC in establishing new rates because they reflected charges for services rendered by affiliated corporations pursuant to contracts not filed with an approved by the Commission as required by G.S. 62-153. Intervenors’ position is that failure to file the contracts and seek Commission approval should result in the disallowance of expenses incurred thereunder. We cannot agree.

The statute requiring filing and approval was clearly enacted for the purpose of discovering contracts between affiliated corporations which were “unjust or unreasonable, and made for the purpose or with the effect of concealing, transferring or dissipating the earnings of the public utility.” G.S. 62 153(a). Contracts found to be so are to be avoided and we think expenses incurred under such contracts would have to be disregarded in computing a utility’s expenses. The consideration of the Commission under G.S. 62453(a) is whether the contracts are just and reasonable. If they are, and are not efforts to divert or conceal [229]*229profits, they are to be approved. The statutory scheme is directed at prior approval.

The testimony at the hearing indicates that the agreements with WSC and CWS were that the affiliates would provide services to the company at costs. The Commission, had it examined the contracts prior to their implementation, could have looked only to the prospective effect of such agreements; the reasonableness and justness of the scheme set up thereby, i.e., whether it was just and reasonable to allocate the affiliates’ expenses to the company and whether the scheme of allocation was just and reasonable under the circumstances. There was competent, material, and substantial evidence to the effect that the affiliates allocated to the company only their expenses, and there was extensive evidence on the various methods of allocation from which the Commission could conclude that the allocation methods were just and reasonable.

Intervenors’ real argument in this appeal is with the reasonableness of the expenses incurred by the affiliates; however, the Commission is not charged under G.S. 62-153 with examining the reasonableness of actual expenditures. It could not, under normal conditions, because the contracts would be ex-ecutory and the affiliate would not yet have incurred any expenses or provided any services to the utility.

G.S. 62453(b) prohibits payments to affiliates under contracts not approved by the Commission. The record suggests that because of the poor financial. condition of the Company, few payments had been made to the affiliates. Regardless, however, of whether the expenses had been paid, we see no reason to disregard their character as expenses once the Commission found the contracts under which the expenses accrued to be just and reasonable. We hold that G.S. 62-153 does not prohibit the Utilities Commission from considering fees owed to affiliated corporations under unfiled contracts as expenses of the public utility for purposes of ratemaking so long as the Commission does determine in the ratemaking procedure that the agreements between the utility and the affiliated corporations are just and reasonable and it does not appear that their purpose is to conceal or divert profits from the public utility to an affiliate.

Intervenors’ second argument is that the order granting the rate increase was based in part on expenses which were unsup[230]*230ported by competent, material, or substantial evidence as to the reasonableness of the expenses. Specifically, intervenors claim that the allocated expenses of WSC and CWS could not properly be included in the Company’s operating expenses absent evidence that the affiliates incurred the expenses in a reasonable manner. While the Commission appears to have considered the reasonableness of the method of allocation, it appears to have accepted without question the operating expenses claimed by WSC and CWS.

The Utilities Commission has authority to “make, fix, establish or allow” only those rates which are “just and reasonable.” G.S. 62-130. See also, G.S. 62-131. G.S. 62-133.1(a) provides: “In fixing rates for any water or sewer utility, the Commission may fix such rates on the ratio of the operating expenses to the operating revenues . . . .” G.S. 62433(b) (3) establishes that the operating expenses to be used by the Commission are “reasonable operating expenses.” This logically follows from the requirement of G.S. 62433.1(a). For rates to be reasonable, the figures from which they are derived must be reasonable. To uphold its statutory duty to establish reasonable rates then, the Commission must examine each of the components going to make up a utility’s expenses for reasonableness.

Two of the components going to make up the total operating expenses of the company in this case were the $19,471.00 share of the operating expenses of WSC which was allocated to the Company and the $8,190 share similarly allocated from CWS to the Company and counted as part of the Company’s operating expenses. While there was evidence of record that WSC and CWS actually incurred these expenses and that the amount allocated to the Company was a fair proportion of the whole, there appears in the record no evidence whatsoever that the expenses incurred by WSC and CWS in providing these services were just and reasonable. Our Supreme Court has quoted with approval the following language of the Pennsylvania Supreme Court:

“ ‘Charges arising out of intercompany relationships between affiliated companies should be scrutinized with care [citations omitted] and if there is an absence of data and information from which the reasonableness and propriety of the services rendered and the reasonable cost of rendering [231]*231such services by the servicing companies can be ascertained by the commission, allowance is properly refused. * * *
‘Moreover, the record in this case is an illustration of the fact that effective and satisfactory State regulation of utilities is made increasingly difficult by the progressive integration of utility services under holding company domination.
‘The desire of public utility management, evidenced by various methods, to secure the highest possible return to the ultimate owners is incompatible with the semi-public nature of the utility business, which the management directs. It therefore follows that the commission should scrutinize carefully charges by affiliates, as inflated charges to operating companies may be a means to improperly increase the allowable revenue and raise the cost to the consumers of utility service as well as an unwarranted source of profit to the ultimate holding company. ’ ”

Utilities Comm. v. Telephone Co., 281 N.C. 318, 346, 189 S.E. 2d 705, 723 (1972). (Emphasis added.)

The evidence that WSC and CWS charged the Company with a fair proportion of their costs does not establish that those costs were reasonably incurred.

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278 S.E.2d 761, 52 N.C. App. 222, 1981 N.C. App. LEXIS 2443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-intervenor-residents-of-bent-ncctapp-1981.