Weiss v. Public Utilities Commission

734 N.E.2d 775, 90 Ohio St. 3d 15
CourtOhio Supreme Court
DecidedSeptember 20, 2000
DocketNo. 99-444
StatusPublished
Cited by46 cases

This text of 734 N.E.2d 775 (Weiss v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weiss v. Public Utilities Commission, 734 N.E.2d 775, 90 Ohio St. 3d 15 (Ohio 2000).

Opinion

Lundberg Stratton, J.

[16]*16In 1992, CEI sought commission approval of its Competitive Pilot Program, which would permit it to enter into “competitive response contracts” for service to eligible customers at discounts from its tariffed rates, and other benefits that were not available to its tariff customers. To be eligible for this program, a customer had to be a commercial or industrial customer with a demand between one hundred fifty kW and five hundred kW and be located where it could receive electric service from Cleveland Pubic Power (“CPP”). In 1993, the PUCO approved CEI’s proposed Competitive Pilot Program and approved an expansion of it to include commercial and industrial customers with demands between thirty kW and one hundred fifty kW.

CPP provides service to much of the east side of Cleveland, but not to most of Cleveland’s west side and western suburbs. In 1997, the commission denied an application by CEI to expand its Competitive Pilot Program to include the west side of Cleveland, where CEI anticipated that competitive electric service from CPP could become available. In denying the expansion applcation, the commission said that it would consider expansion on an individual, case-by-case basis when actual competition was shown to exist.

Weiss operates three commercial real estate properties (office buildings) in Rocky River, Ohio, a western Cleveland suburb outside the previously approved geographical boundaries of the Competitive Pilot Program. CPP does not provide service in Rocky River. After CEI determined that because of the locations of Weiss’s office buildings, Weiss was not entitled to discounts and other benefits extended under the Competitive Pilot Program, Weiss complained to the commission that his exclusion from CEI’s Competitive Pilot Program violated the prohibitions of R.C. 4905.31, 4905.33, and 4905.35 against discrimination and preferences, arguing that those statutes are “clear and unambiguous in [their] prohibition of discriminatory pricing.”

We reject Weiss’s argument. R.C. 4905.31, 4905.33, and 4905.35 do not prohibit all discrimination.

R.C. 4905.31(D) expleitly permits a pubic utilty to enter into “any reasonable arrangement” with its customers that discriminates among them according to “[a] classification of service based upon * * * any * * * reasonable consideration.” Thus, a discriminatory classification is not prohibited if it is reasonable.

R.C. 4905.33 prohibits discriminatory pricing for “Ike and contemporaneous service” rendered “under substantially the same circumstances and conditions.” If the utility services rendered to customers are different or if they are rendered under different circumstances or conditions, differences in the prices charged and collected are not proscribed by R.C. 4905.33.

R.C. 4905.35 prohibits a utility from making or giving “any undue or unreasonable preference or advantage” or imposing “any undue or unreasonable prejudice [17]*17or disadvantage.” The statute does not prohibit all preferences, advantages, prejudices, or disadvantages — only those that are undue or unreasonable.

As to R.C. 4905.31, we do not accept Weiss’s argument that the phrase “any other reasonable consideration” must be limited by the'specific statutory considerations that precede it. Those considerations are “the quantity used, the time when used, the purpose for which used, and the duration of use.”

In State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 673 N.E.2d 1351, we said: “ ‘If the meaning of a statute is unambiguous and definite, then it must be applied as written and no further interpretation is appropriate’ ” and “ ‘Words used in a statute must be accorded their usual, normal or customary meaning.’ ” Id. at 340, 673 N.E.2d at 1353, quoting State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 997, and State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections (1996), 75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19. In Purdy, we adopted the meaning of the word “any” as set forth in Webster’s Third New International Dictionary (1971) 97: “ ‘Any’ means ‘one or some indiscriminately of whatever kind.’ ” Id. Purdy supports the conclusion that the phrase “any other reasonable consideration” in R.C. 4905.31(D) is not limited by statutory examples of specific other valid considerations or by decisions of this court approving of considerations of cost of service and customers’ service needs.

Moreover, the commission’s 1993 approval of CEI’s Competitive Pilot Program and its expansion were grounded on the existence of a competitive service provider within CEI’s service territory. In 1997, the commission declined to expand the availability of the benefits offered under the Competitive Pilot Program and, by so doing, emphasized the existence of a competitive service provider for a CEI customer as a reasonable consideration justifying rates other than tariffed rates under competitive response contracts entered into pursuant to R.C. 4905.31. The commission found that “[classifying customers based on the availability of a competitive alternative for electric service is, in this case, a reasonable basis for an electric utility to classify its customers.” Based on that finding, the commission further found that CEI’s Competitive Pilot Program and the competitive response contracts entered into under the program did not violate R.C. 4905.31.

We accept the commission’s interpretation of R.C. 4905.31 as allowing discounts based on the existence of competition.1 Due deference should be given to statutory interpretations by an agency that has accumulated substantial expertise [18]*18and to which the General Assembly has delegated enforcement responsibility. Collinsworth v. W. Elec. Co. (1992), 63 Ohio St.3d 268, 272, 586 N.E.2d 1071, 1074. “[L]ong-standing administrative interpretations [of statutes] are entitled to special weight.” Cleveland v. Pub. Util. Comm. (1981), 67 Ohio St.2d 446, 451, 21 O.O.3d 279, 282, 424 N.E.2d 561, 565.

Weiss contends that CEI’s Competitive Pilot Program and his exclusion from it viólate the proscriptions of R.C. 4905.33 because the program results in different rates being charged to customers in the same class for contemporaneous service rendered under substantially the same circumstances and conditions. Weiss defines the class as being small business customers falling within the same demand range.

However, as the commission noted, there is a distinction between CEI’s small business customers that are located where they can receive electric service from a competitor of CEI (in this case, CPP) and those small business customers that are located where no competitive electric service is available to them.

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Bluebook (online)
734 N.E.2d 775, 90 Ohio St. 3d 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-public-utilities-commission-ohio-2000.