§ 34-912. Expenses of investigation to be borne by utility; deposit for costs; limitation of expenditures in hearings; reimbursement fee.
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Current through October 23, 2012
(a)(1) There are established within the District of Columbia treasury 2 fiduciary funds to be known as the "Public Service Commission Agency Fund" and the "Office of the People's Counsel Agency Fund". These funds shall be accounted for under procedures established pursuant to subchapter V of Chapter 3 of Title 47, or any other applicable law. The Public Service Commission Agency Fund shall be used exclusively by the Commission for the payment of its expenses and the Office of the People's Counsel Agency Fund shall be used exclusively by the Office for the payment of its expenses arising from any investigation, valuation, revaluation, or proceeding of any nature by the Commission of or concerning any public utility operating in the District of Columbia, and all expenses of any litigation, including appeals, arising from any such investigation, valuation, revaluation, or proceeding or from any other order or action of the Commission. Expenses shall be deemed to include, but not be limited to, the cost of independent contractors, such as attorneys. Funding for both funds shall be provided through a special franchise tax which shall be paid by each public utility being investigated, valued, revalued, or otherwise affected through a proceeding of the Commission, subject to the limitations enumerated in paragraph (3) of this subsection. Any deposits made through this special franchise tax to each agency fund by any public utility may be amortized over whatever period the Commission shall deem proper and shall be allowed for in the rates to be charged by each utility.
(2) When any such investigation, valuation, revaluation, or other proceeding of any nature is begun by the Commission or the Office of the People's Counsel, either the Commission or the Office of the People's Counsel shall, according to rules issued pursuant to paragraph (5) of this subsection, determine from time to time the reasonable and necessary expenditures required to fully carry out their respective statutory responsibilities with regard to such investigation, valuation, revaluation, or other proceeding. Once the Commission has determined its requirements, the Commission may call upon the utility in question from time to time for the prompt deposit of the special franchise tax deposit to the Public Service Commission Agency Fund determined by the Commission to be reasonable and necessary, subject to the limitations provided in paragraph (3) of this subsection. Once the Office of the People's Counsel has determined its requirements, the Office shall submit its determination for review by the Commission. Based on the record established by the Office's determination of its requirement for special franchise tax funds, the Commission shall review the Office's determination solely to determine whether it is consistent with the statutory authority of and rules issued by the Office, whether it is supported by findings, whether those findings are sustained by substantial evidence in the record submitted to the Commission, and whether it is within the limitations enumerated in paragraph (3) of this subsection. The Commission shall complete its review within 10 days (excluding Saturdays, Sundays, and holidays) of receipt of the Office's determination. After completing its review, the Commission shall either call upon the utilities for the prompt deposit of the special franchise tax deposit to the Office of the People's Counsel Agency Fund or inform the Office in writing of any specific failures of the Office to meet the Commission's enumerated standard of review. Within 10 days (excluding Saturdays, Sundays, and holidays) of any resubmission by the Office, the Commission shall similarly act. If the Commission still notes a failure to meet its standard of review, the Office may appeal to the District of Columbia Court of Appeals under procedures enumerated in § 34-605. If the Commission fails to take action on any submission or resubmission by the Office within the required time frame, the submission or resubmission shall be deemed approved, and the Commission shall carry out its duty to obtain the requested deposit. All such sums shall be deposited in the District of Columbia Treasury. Those sums which are to be used by the Commission for its expenses shall be deposited in the Public Service Commission Agency Fund and those sums which are requested by the Commission on behalf of the Office shall be deposited in the Office of the People's Counsel Agency Fund, to be disbursed in the manner provided for by law for other expenditures of the government of the District of Columbia. The balance of any sums for a specific proceeding remaining in each fund after a 12-month period in which actual expenditures for that proceeding were 5% or less of the fund balance, shall be returned to the utility which made the deposit. The balance of any sums for a specific proceeding remaining after the final disposition of the proceeding or any litigation arising therefrom shall be returned promptly to the utility which made the deposit.
(3) In any valuation or rate case, neither the Commission nor the Office may individually seek special franchise tax deposits of more than one-quarter of one percent of the jurisdictional valuation of the public utility which is the subject of the proceeding. In all other investigations docketed as formal proceedings by the Commission, neither the Commission nor the Office shall individually seek special franchise tax deposits in any one year of more than one-twentieth of one percent of the jurisdictional valuation of each public utility which is the subject of one or more investigations during that year; provided, that the Office may seek special franchise tax deposits of not more than one-quarter of one percent of the jurisdictional valuation of the public utility which is the subject of the proceeding in any instance where the public utility alleges in a proceeding before a federal court or federal agency that the bankruptcy of a company with whom it has contracts may have adverse consequences to ratepayers of the District of Columbia. For the purposes of this paragraph, the Commission may determine the jurisdictional valuation of the public utility which is the subject of the formal proceeding whenever it deems necessary, in accordance with § 34-1106, based on the operations of the utility over whatever 12-month period it deems appropriate.
(4) Should any public utility fail to make any special franchise tax deposit ordered by the Commission pursuant to this section, the Commission shall certify this failure to the Mayor for collection pursuant to the provisions of subchapter XIII of Chapter 18 of Title 47.
(5) The Commission and the Office shall issue rules reasonable and necessary to provide procedures for the determination of their needs for funds from their respective agency funds. These rules shall include provisions for full disclosure of all special franchise tax deposits prior to the issuance of the deposit orders by the Commission on its own behalf and on behalf of the Office. Full disclosure shall include, but not be limited to, the name of each contractor to be hired, the qualifications of each contractor, a brief description of the work to be done by each contractor, the number of persons employed by each contractor and the hourly rate to be charged by each person thus employed, and the estimated value of each contract.
(6) The District of Columbia Auditor shall review the amounts deposited and disbursed by the Commission and the Office under this section and shall issue a report to the Mayor and the Council on each agency fund on a biennial basis.
(7) The Commission and the Office shall issue reports to the Mayor and the Council by February 15 of the succeeding fiscal year on deposits to and disbursements from their respective agency funds during each fiscal year. Copies of the reports shall provided to each public utility.
(8) Neither the staff of the Commission nor any consultant hired by the Commission shall appear as a party to, advocate, or intervenor in any Commission proceeding. Individual staff members and consultants may appear on behalf of the Commission as expert witnesses at the direction of the Commission to present testimony on selected issues after the Commission makes a finding of the issues to be decided in the proceeding and a determination that testimony in addition to that to be presented by the parties or intervenors is required by the Commission to develop a complete record. The staff members and consultants shall not advocate a position on the merits. Expert witnesses may be represented by counsel appointed by the Commission for this purpose. The General Counsel or the General Counsel's designee may, at the direction of the Commission and on behalf of the Commission, cross-examine any witness in any proceeding before the Commission.
(9)(A) Each public utility shall furnish the Commission a statement of all costs of participation to be incurred in each Commission and related court proceeding or in complying with the provisions of this title. The statement shall include, but is not limited to, the projected costs and expenses both direct and indirect, an allocation of all projected internal overhead, expenses, and salaries, the name of each contractor to be hired and the value of each contract. This statement shall be compiled and filed with the Commission, with a copy to the Office of People's Counsel, when filing a request for a change in rates or services with the Commission. Each public utility shall also file annually with the Commission, with a copy to the Office, a statement of costs for the previous fiscal year no later than 3 months after the completion of the fiscal year.
(B) The records to be kept and the information presented in the annual statement shall be by case, matter, investigation, or proceeding and shall describe all costs and expenses, external and internal, retained and employed, direct and indirect, including an allocation of all internal overhead, expenses, and employee salaries to each proceeding or matter. If an allocation of costs is made, the report shall fully explain the allocation method used. If any services were provided to the public utility by consultants or contractors, copies of the relevant contracts shall be provided with the annual statement. The Office of the People's Counsel may submit to the public utility a request for further information concerning the annual statement.
(b)(1) All amounts appropriated for the Public Service Commission and the Office of People's Counsel for each fiscal year, except for amounts appropriated for carrying out the Commission's duties under Chapter 36 of Title 3, shall be repaid during such fiscal year by the natural gas suppliers, electricity suppliers and telecommunications services providers as a reimbursement fee.
(2) The amount of the reimbursement fee to be paid by each natural gas supplier, electricity supplier, and local exchange carrier, that is not the incumbent local exchange carrier as defined in this chapter, authorized to provide service in the District, and the formula through which such an amount shall be annually established, shall be determined by the Public Service Commission.
(3) The amount of the reimbursement fee to be paid by each public utility other than a local exchange carrier subject to paragraph (2) of this subsection shall be equal to the product of the amounts appropriated, less the amount to be reimbursed by the providers subject to paragraph (2) of this subsection, multiplied by the fraction, as determined by the Mayor, represented by the revenues of such public utility derived from utility operations in the District of Columbia that are regulated by the Public Service Commission during the immediately preceding fiscal year (or other 12-month period as the Mayor may designate), divided by the gross revenues of all public utilities from utility operations in the District of Columbia during such period. The fee shall be paid by the public utilities during such fiscal year to the Treasurer of the District of Columbia, at such time or times and in such manner as the Mayor by regulation may require. If the total amount paid or obligated by the Public Service Commission and the People's Counsel during such fiscal year pursuant to appropriations for such fiscal year is less than the amounts appropriated by more than 5%, the Mayor shall refund to or credit each public utility and electricity supplier with such part of the difference, rounded to the nearest dollar, as equals the product of the difference multiplied by the fraction, as set forth above, representing the gross revenue of the public utility or electricity supplier relative to the gross revenues of all public utilities, natural gas suppliers, and electricity suppliers.
(4) Repealed.
(5) The funding provisions of subsection (a) of this section shall not apply to local exchange carriers that are not the incumbent local exchange carrier; except, that such providers may be assessed for a proportionate share of the costs of the proceeding required under § 34-2002(k), up to a maximum amount of $25,000 each.
(6) Repealed.
(7)(A) For any proceeding required to arbitrate disputes between carriers pursuant to the procedures established in this chapter, the Commission may assess, on a nondiscriminatory basis, each local exchange carrier who is a participant in any dispute, an amount equal to the actual cost to the Commission of conducting the arbitration, and the Commission shall present to the Council along with its annual budget request, an accounting of the expenditures of the PSC for each proceeding.
(B) For any proceeding, other than the proceeding called for in § 34-2002(k) and the proceedings referenced in subparagraph (A) of this paragraph, which the Commission may determine is necessary to carry out the purposes of this chapter, the Commission and, when appropriate to its mission, the Office of the People's Counsel, may assess, on a nondiscriminatory basis, the parties who are participants in the proceeding in an amount equal to the actual costs of the proceeding, and the Commission and the Office of the People's Counsel shall present to the Council along with each agency's annual budget request, an accounting of the expenditures of each agency for each proceeding.
(8) Five dollars of the license tax paid for each passenger vehicle for hire by common carriers under § 47-2829(d), shall be deemed the reimbursement fee payable by such common carriers under this subsection.
(9) The Mayor, pursuant to subchapter I of Chapter 5 of Title 2, may issue regulations to carry out this subsection, and may delegate all or any of the authority vested in the Mayor by this subsection to such agency or agencies, including the Public Service Commission and the Office of the People's Counsel, as the Mayor may deem appropriate.
(10) A public utility or service provider that fails to comply with a reimbursement order issued by the Commission pursuant to this section shall be subject to the penalty provisions set forth in § 34-706.
(c) Nothing in this chapter shall be construed to prevent the Commission from using the Public Service Commission Agency Fund for the payment of any and all expenses that it incurs in the performance of its duties.
(Mar. 4, 1913, 37 Stat. 984, ch. 150, § 8, par. 42; Mar. 3, 1927, 44 Stat. 1351, ch. 304; Aug. 27, 1935, 49 Stat. 884, ch. 742, § 3; Aug. 30, 1964, 78 Stat. 634, Pub. L. 88-503, § 21; Jan. 2, 1975, 88 Stat. 1976, Pub. L. 93- 614, § 2; June 15, 1976, D.C. Law 1-70, title VI, § 606, 23 DCR 553; Sept. 13, 1980, D.C. Law 3-88, § 2, 27 DCR 3004; Aug. 10, 1984, D.C. Law 5-104, §§ 2, 3(b), 31 DCR 3037; Mar. 14, 1985, D.C. Law 5-153, § 3(e), 31 DCR 6440; July 17, 1985, D.C. Law 6-9, § 2(b), 32 DCR 2961; Aug. 1, 1996, D.C. Law 11-152, § 403, 43 DCR 2978; Sept. 9, 1996, D.C. Law 11-154, § 9, 43 DCR 3736; Apr. 20, 1999, D.C. Law 12-263, § 13(c)(1), 46 DCR 2111; May 9, 2000, D.C. Law 13-107, § 201(g), 47 DCR 1091; Mar. 16, 2005, D.C. Law 15- 227, § 17(e), 51 DCR 10549; Apr. 12, 2005, D.C. Law 15-342, § 303(e), 52 DCR 2346; Oct. 20, 2005, D.C. Law 16-33, § 2002, 52 DCR 7503; Mar. 2, 2007, D.C. Law 16-191, §§ 5(j), 58(b), 53 DCR 6794; Sept. 24, 2010, D.C. Law 18- 223, § 2222(a), 57 DCR 6242; Sept. 14, 2011, D.C. Law 19-21, § 2082(b), 58 DCR 6226.)
HISTORICAL AND STATUTORY NOTES
Prior Codifications
1981 Ed., § 43-612.
1973 Ed., § 43-412.
Effect of Amendments
D.C. Law 13-107 in subsec. (a)(3) substituted "public utility" for "company"; in subsec. (b)(1) substituted "electricity suppliers" for "public utilities"; substituted in subsec. (b)(2) "each electricity supplier and local" for "each local"; and, rewrote the third sentence of subsec. (b)(3) which formerly provided: "If the total amount paid or obligated by the Public Service Commission and the People's Counsel during such fiscal year pursuant to appropriations for such fiscal year is less than the amounts appropriated by more than 5%, the Mayor shall refund to each public utility or credit each public utility with such part of the difference, rounded to the nearest dollar, as equals the product of such difference multiplied by the fraction, as set forth above, representing the gross revenue of such public utility relative to the gross revenues of all public utilities."
D.C. Law 15-227, in subsec. (b), substituted "natural gas suppliers, electricity suppliers" for "electricity suppliers" in par. (1), substituted "natural gas supplier, and electricity supplier" for "electricity supplier" in par. (2), and substituted "natural gas suppliers, and electricity suppliers" for "electricity suppliers" in the third sentence of par. (3).
D.C. Law 15-342, in subsec. (a)(2), substituted "The balance of any sums for a specific proceeding remaining in each fund after a 12-month period in which actual expenditures for that proceeding were 5% or less of the fund balance, shall be returned to the utility which made the deposit. The balance of any sums for a specific proceeding remaining after the final disposition of the proceeding or any litigation arising therefrom shall be returned promptly to the utility which made the deposit." for "Any deposits made through this special franchise tax to each agency fund by any public utility may be amortized over whatever period the Commission shall deem proper and shall be allowed for in the rates to be charged by each utility."; and rewrote subsecs. (a)(7) which had read:
"(7) The Commission and the Office shall issue reports to the Mayor and the Council by January 1 of the succeeding fiscal year on deposits to and disbursements from their respective agency funds during each fiscal year. The reports shall include, but not be limited to, the following information:
"(A) The dollar amount of each deposit;
"(B) The total amount disbursed for each proceeding;
"(C) The name of each contractor hired, the expertise of each contractor, the type of work performed by each contractor, the hourly rate of each contractor, and the total amount received by each contractor, by proceeding;
"(D) The amount reimbursed to the utility companies, by proceeding; and
"(E) The dollar amount of contracts awarded to minority and District-based firms."
D.C. Law 16-33, in subsec. (a)(3), substituted "special franchise tax deposits in any one year of more than one- twentieth of one percent of the jurisdictional valuation of each public utility which is the subject of one or more investigations during that year; provided, that the Office may seek special franchise tax deposits of not more than one-quarter of one percent of the jurisdictional valuation of the public utility which is the subject of the proceeding in any instance where the public utility alleges in a proceeding before a federal court or federal agency that the bankruptcy of a company with whom it has contracts may have adverse consequences to ratepayers of the District of Columbia." for "special franchise tax deposits in any one year of more than one-twentieth of one percent of the jurisdictional valuation of each public utility which is the subject of one or more investigations during that year".
D.C. Law 16-191, in subsec. (b), validated previously made technical corrections.
D.C. Law 18-223, in subsec. (b)(5), deleted the last sentence which had read: "Any such amount shall be credited against the reimbursement fee of any such LEC pursuant to paragraph (2) of this subsection, in subsequent years."; repealed subsec. (b)(6); and added subsec. (b)(10). Prior to repeal, subsec. (b)(6) read as follows:
"(6) Any local exchange carrier, other than the incumbent local exchange carrier, that seeks certification by the Commission within 5 years of September 9, 1996 shall be assessed in an amount equal to the amount assessed pursuant to paragraph (5) of this subsection, and that assessment shall be reimbursed by the Commission, in equal amounts to the incumbent local exchange carrier, and each local exchange carrier whose authorization from the Commission to provide local exchange service was received during the period in which the proceeding required under § 34-2002(k) took place."
D.C. Law 19-21 repealed subsec. (b)(4), which formerly read:
"(4) Notwithstanding the requirements of paragraph (2) of this subsection, in the case of a local exchange carrier that is not the incumbent local exchange carrier, the amount of the fee payable in the first year such service is provided shall be no less than $25,000."
Emergency Act Amendments
For temporary amendment of section, see § 403 of the Fiscal Year 1996 Budget Support Emergency Act of 1996 (D.C. Act 11-264, April 26, 1996, 43 DCR 2412), and § 303 of the Fiscal Year 1996 Budget Support Congressional Review Emergency Act of 1996 (D.C. Act 11-335, August 1, 1996, 43 DCR 4256).
For temporary (90-day) amendment of section, see § 3(1) of Public Service Commission Independent Authority Emergency Amendment Act of 1999 (D.C. Act 13- 52, April 6, 1999, 46 DCR 3638).
For temporary (90 day) amendment of section, see § 303(e) of Omnibus Utility Emergency Amendment Act of 2005 (D.C. Act 16-12, January 28, 2005, 52 DCR 2945).
For temporary (90 day) amendment of section, see § 2002 of Fiscal Year 2006 Budget Support Emergency Act of 2005 (D.C. Act 16-168, July 26, 2005, 52 DCR 7667).
For temporary (90 day) amendment of section, see § 2222(a) of Fiscal Year 2011 Budget Support Emergency Act of 2010 (D.C. Act 18-463, July 2, 2010, 57 DCR 6542).
Legislative History of Laws
Law 1-70 was introduced in Council and assigned Bill No. 1-229, which was referred to the Committee on Finance and Revenue. The Bill was adopted on first and second readings and reconsiderations of final reading on February 20, 1976, March 11, 1976 and April 6, 1976, respectively. Signed by the Mayor on April 20, 1976, it was assigned Act No. 1-106 and transmitted to both Houses of Congress for its review.
Law 3-88 was introduced in Council and assigned Bill No. 3-274, which was referred to the Committee on Finance and Revenue. The Bill was adopted on first and second readings on June 3, 1980 and June 17, 1980, respectively. Signed by the Mayor on July 2, 1980, it was assigned Act No. 3-206 and transmitted to both Houses of Congress for its review.
Law 5-104 was introduced in Council and assigned Bill No. 5-411. The Bill was adopted on first and second readings on April 30, 1984, and May 15, 1984, respectively. Signed by the Mayor on June 6, 1984, it was assigned Act No. 5- 145 and transmitted to both Houses of Congress for its review.
For legislative history of D.C. Law 5-153, see Historical and Statutory Notes following § 34-706.
For legislative history of D.C. Law 6-9, see Historical and Statutory Notes following § 34-909.
Law 11-152, the "Fiscal Year 1996 Budget Support Act of 1996," was introduced in Council and assigned Bill No. 11-655, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on April 2, 1996, and May 7, 1996, respectively. Signed by the Mayor on May 28, 1996, it was assigned Act No. 11-279 and transmitted to both Houses of Congress for its review. D.C. Law 11-152 became effective on August 1, 1996.
Law 11-154, the "Telecommunications Competition Act of 1996," was introduced in Council and assigned Bill No. 11-258, which was referred to the Committee on Consumer and Regulatory Affairs. The Bill was adopted on first and second readings on May 21, 1996, and June 4, 1996, respectively. Signed by the Mayor on June 25, 1996, it was assigned Act No. 11-300 and transmitted to Congress for its review. D.C. Law 11-154 became effective September 9, 1996.
Law 12-263, the "Residential Real Property Seller Disclosure, Funeral Services Date Change, and Public Service Commission Independent Procurement Authority Act of 1998," was introduced in Council and assigned Bill No. 12-648, which was referred to the Committee on Consumer and Regulatory Affairs. The Bill was adopted on first and second readings on October 6, 1998, and November 10, 1998, respectively. Vetoed by the Mayor on December 29, 1998, Council overrode the veto on January 5, 1999, and the Bill was assigned Act No. 12-625 and transmitted to both Houses of Congress for its review. D.C. Law 12-263 became effective on April 20, 1999.
For Law 13-107, see notes following § 34-908.
For Law 15-227, see notes following § 34-208.
For Law 15-342, see notes following § 34-401.
Law 16-33, the "Fiscal Year 2006 Budget Support Act of 2005", was introduced in Council and assigned Bill No. 16-200 which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on May 10, 2005, and June 21, 2005, respectively. Signed by the Mayor on July 26, 2005, it was assigned Act No. 16-166 and transmitted to both Houses of Congress for its review. D.C. Law 16-33 became effective on October 20, 2005.
For Law 16-191, see notes following § 34-209.
For Law 18-223, see notes following § 34-706.
For history of Law 19-21, see notes under § 34-706.
Editor's Notes
The phrase "this chapter" was substituted for "this act" in (c), pursuant to instructions from Codification Counsel, notwithstanding that some sections herein were not part of the organic act.
Former § 43-613 [1981 Ed.], D.C. Law 3-88, § 3, 27 DCR 3004, provided for application of the provisions of subsec. (b) of this section with respect to such portion, if any, of fiscal year 1980 beginning on September 13, 1980, and ending on September 30, 1980, and with respect to each fiscal year thereafter.
Former § 43-910 [1981 Ed.], 49 Stat. 885, ch. 742, § 4, provided that if any provision this section or the application to any person or circumstances is held invalid, the invalidity of the remainder of said sections and of the application of such provision to other persons and circumstances shall not be affected thereby.
Miscellaneous Notes
Short title of subtitle A of title II of Law 16-33: Section 2001 of D.C. Law 16-33 provided that subtitle A of title II of the act may be cited as the Office of People's Counsel Amendment Act of 2005.
Short title: Section 2221 of D.C. Law 18-223 provided that subtitle S of title II of the act may be cited as the "Public Service Commission Amendment Act of 2010".
