The timely recovery of such costs through the FAC can help limit the need for general rate cases and their costs, which ultimately are borne by customers. Beginning in the Public Service Commission of Kentucky mandated the use of a uniform FAC by all electric utilities subject to its jurisdiction. The current regulation establishing the uniform FAC was promulgated in This month the Commission proposed amending the current regulation for the first time in the 37 years since it was first promulgated. Cook , Justin M. Joe F.
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Childers, Jr. The Commission argues the circuit court lacked subject matter jurisdiction to entertain an interlocutory appeal of its decision not to permit intervention by certain persons in a rate-making case. We are persuaded by that argument. Numerous persons moved to intervene in the administrative proceedings, including: the Metropolitan Housing Coalition "MHC" , which represents the concerns of low-income ratepayers in the Louisville area; the Association of Community Ministries "ACM" , which provides utility assistance to low-income individuals in the Louisville area; the Sierra Club, a conservation group; and the Community Action Council for Lexington-Fayette, Bourbon, Harrison and Nicholas Counties "CAC" , which provides energy assistance to low-income residents in KU's service area.
The Commission denied motions to intervene filed by these parties; they became the real parties in interest before the circuit court "Real Parties". In denying intervention, the Commission found as to each of the Real Parties that their interests were already adequately represented by a party to the proceeding, including the Kentucky Attorney General whose office intervened as a matter of right pursuant to KRS 2 Still, each order denying intervention included language that, despite their non-party status in the administrative proceeding, each Real Party would "have ample opportunity to participate" by viewing all filings online, "filing comments as frequently as they choose" to be made a part of the record, and working with the Attorney General to provide testimony.
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Additionally, each denial stated: "if a formal evidentiary hearing is held, [Real Parties] will be provided an opportunity to present any information that they wish for the Commission's consideration in this matter. They filed civil actions now consolidated in the Franklin Circuit Court. On November 21, , the circuit court entered a temporary injunction pursuant to CR A writ of prohibition is an extraordinary remedy. As the Supreme Court of Kentucky described the standard for granting a writ:. Hoskins v. The Commission seeks a writ of the first class, asserting the circuit court is acting without subject matter jurisdiction.
PUBLIC SERVICE COMMISSION v. SHEPHERD
The circuit court claimed appellate jurisdiction in this case, stating "that the Commission's orders denying the Motions to Intervene are final and appealable as to these [Real Parties], and these orders may be properly presented to the [Circuit] Court at this time under KRS Relying on the definition of a "final or appealable judgment" found in CR The circuit court ruled as a matter of law that, "In cases where the Commission's action regarding certain litigants is, as a practical matter, a final disposition of their right to participate in the proceedings, the statute clearly authorizes immediate judicial review.
KRS Cobbling together elements upon which to assert interlocutory appellate jurisdiction from an administrative proceeding, the court noted that "[a]lthough the Commission has not adopted the Kentucky Rules of Civil Procedure, the plaintiffs plainly satisfy the standard for intervention as a matter of right under CR 24, which is highly persuasive to the Court on this point. The court went further, "tak[ing] notice of the collateral order doctrine, an exception to the final judgment rule in federal courts. We conclude the circuit court's reasoning for its exercise of interlocutory appellate jurisdiction is flawed.
Not only is reliance on the Kentucky Rules of Civil Procedure misplaced, the circumstances of this case do not support application of the collateral order rule.
However, the fundamental error in the circuit court's analysis is its presumption that the Real Parties have a right to intervene in the Commission's proceedings. We conclude such a right does not exist in the context of the Commission's "plenary authority to regulate and investigate utilities. Commonwealth ex rel. Consumers in a free market economy have no right, certainly not at common law, to dictate the rate at which a seller's product or service is sold. However, American capitalism is subject to regulation as authorized by the market participants themselves — the buyers and sellers, who are citizens all.
These citizens empower representatives in state and federal governments to enact legislative schemes to protect consumers against the excesses of sellers who, for various reasons, find themselves in, and are tempted to take advantage of, a superior bargaining position. One such legislative scheme is KRS Chapter Chapter did not solve the utilities marketplace imbalance by empowering consumers with a statutory right to set their own utility rates. Through representatives, the people created the Public Service Commission and granted it "exclusive jurisdiction over the regulation of rates and service of utilities.
The legislature saw to it that "the [Commission] had the plenary authority to regulate and investigate utilities and to ensure that rates charged are fair, just, and reasonable under KRS Conway, S. In fact, "it was the intention of the Legislature to clothe the Public Service Commission with complete control over rates and services of the utilities. In summary, rather than granting consumer rights that did not exist at common law, the legislative scheme focuses on the other side of the transaction and suppresses the free market right of a utility to charge any rate the market will bear.
In place of that suppressed right, the legislation still allows rate increases, but requires notice to the Commission and Commission approval. The Commission's plenary rate-making authority is considerable. It "is primarily a legislative function of the state, and the right is essentially a police power. That power is exercised when the commission "finds that any rate is unjust, unreasonable, insufficient, unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, [at which time] the commission shall by order prescribe a just and reasonable rate to be followed in the future.
Replacing the consumers' inferior negotiating position with this police power means "[c]onsumers of public utilities must rely on the Commission to protect them from unreasonable and unfair rates.
There is, of course, a tradeoff. The legislative scheme not only "strips consumers of the right to price shop[,]" id. However, understanding how one becomes a party to Commission proceedings, generally, facilitates our explanation why persons denied intervention, specifically, are not parties entitled to judicial review. Any person broadly defined by KRS The statutes make no distinction between formal and informal complaints, but the regulations do. The complaint need not be about a utility rate — applicable to all utility customers — but might be of a private nature and only between the complainant and the utility.
But the legislation granting consumers the right to complain to the Public Service Commission guarantees nothing else.
- Ky. Rev. Stat. § 278.410?
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It has always been so. As our highest court long ago said, if a single complaint could compel Commission action, "the commission would be subjected to the whims and imaginative grievances of customers to such an extent that it would be so annoying that the intent and purpose of the law would be virtually destroyed, and the service to the general public would be thwarted if not destroyed.
Southern Bell Tel. It remains the prerogative of the Commission to initiate a rate case.
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Furthermore, a complainant has no right to a hearing. Nor does the legislative scheme provide for judicial review of the Commission's dismissal of a complaint.
Kentucky court of appeals
Kentucky Power Co. Judicial review is available only to a " party to a commission proceeding or any utility affected by an order of the commission. A person whose complaint is dismissed never becomes a party before the Commission and, therefore, is entitled to no judicial review pursuant to KRS There are two ways for a complainant to qualify as a party to a Commission proceeding and thus be entitled to claim the right to judicial review under KRS Kentucky Revised Statutes. Desiring more than this limited participation, the Real Parties claimed a right….
The order provided, in part, as follows: Under KRS Back to Results. Download Print Get alerts. Statutes, codes, and regulations.
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