Case records from kentucky public service commision

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.

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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 โ€” 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 โ€” applicable to all utility customers โ€” 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. 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. 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 Power Co. Judicial review is available only to a " party to a commission proceeding or any utility affected by an order of the commission.

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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 Both are effectively discretionary with the Commission. First, the complaint must be a "formal complaint" as defined by KAR Section 20, and it must "[i]nitiate[] action" that prompts the Commission's exercise of its discretionary authority under KRS In such a case, the complainant would typically become a party and, pursuant to KRS Of course, the Commission can still exclude the complainant as a party by acting "upon its own motion" under those same statutes.

Second, any complainant would be a party if "joined to a commission proceeding" by order of the Commission. Again, changing the status of a person from complainant to party under the regulation's Section 1 10 e is the prerogative of the Commission.


In summary, a person becomes more than a complainant, rising to the status as a party, only at the discretion of the Commission. This legislative grant of discretion is emblematic of the plenary nature of the Commission's authority. These underlying concepts explaining why a complainant cannot demand participation in a Commission proceeding have equal applicability to would-be intervenors.

Although addressed by other statutes and regulations, participation by intervention in the Commission's rate-making proceedings, as with participation by complainants, is at the Commission's discretion. There is one exception to this general statement regarding the Commission's discretion in matters of intervention. It is an exception that proves the rule.

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The legislature expressly and unequivocally granted to the Kentucky Attorney General the right to "[t]o be made a real party in interest to any action on behalf of consumer interests involving a quasijudicial or rate-making proceeding. Whether the Attorney General intervenes is his decision and entirely beyond the control of the Commission because the legislature said so.

Exercising power under this statute, the Attorney General did, in fact, intervene on behalf of consumer interests in this rate-making case. But the Real Parties can point to no legislation granting them a similar right to intervene. I also attend informational meetings with our attorneys and financial analysts, and preside over three to four hearings per month on average. Chair Schmitt: The commission is composed of three commissioners appointed by the Governor and confirmed by the state Senate.

He is a small business owner and has worked in various managerial and financial capacities for U. Talina Mathews, our third commissioner, has a Ph. Our staff consists of an executive and deputy executive director, an executive advisor and approximately sixty-eight members organized into divisions of inspection, financial analysis, general counsel and general administration. PUF: What's your take on the electric power industry and regulation of the industry?

How do you feel things are going? Chair Schmitt: That is not an easy question to answer. In Kentucky, there are four investor-owned electric utilities and two generation and transmission cooperatives which are owned by their distribution co-op members.

Each has a defined service territory and the economic conditions in several of those service areas vary considerably.

The March unemployment figures, for example, listed statewide unemployment at four percent, the lowest on record. Those figures reflect a vibrant economy in central and northern Kentucky where unemployment rates on a county-by-county basis are as low as 3. The electric utilities with service territories in those and adjacent areas are doing well.

In eastern Kentucky, on the other hand, county unemployment rates fall into a general range between 6. The dominant industry in eastern Kentucky has always been coal mining and with a decline in demand for Central Appalachian steam coal, the economy has been extremely depressed. Between and , Kentucky lost over eleven thousand coal mining jobs, with the largest portion of those losses occurring in the eastern coal fields. Chair Schmitt: In Kentucky, we regulate co-ops to the same extent as we do investor-owned utilities.

PUF: If you had to look forward for, say the next three or four years, how do you feel about the electric power industry in your state? Are you optimistic? Chair Schmitt: Kentucky has seen an overall decline in the use of electricity of about twelve percent since The utilities located in central and northern Kentucky and the areas adjacent to them serve a population, for the most part, which is concentrated in and around urban centers which have experienced both population and economic growth.

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Their load forecasts project low but continuous growth of one to two per cent over the next ten years. In eastern Kentucky, load is predicted to steadily decrease over the same time period.

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Kentucky Power Company, for instance, reported a reserve margin of Big Rivers in west Kentucky has continued its efforts to deal with excess capacity by idling generation assets, selling into MISO and negotiating sales through bilateral contracts. PUF: In parts of the state the economy can be spotty?

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