More Information
Historic Test Year. Arizona is an historic test-year jurisdiction - but does allow some known-and-measurable test-year adjustments.
Filing Your Case. Specific filing requirements are covered elsewhere. Your filing should include all required schedules and prefiled direct testimony. It is a good idea to include a courtesy copy for RUCO It is not necessary to file workpapers, but do provide Staff and RUCO a copy on a disk. They ask for them in their first DRs anyway, so why not be nice.
Communications Strategy. When you file your case, the Commissioners and Staff should already know what to expect. Commissioners don't want to learn first about your case on television or in the papers. As a regulated utility, this should already be covered as part of your routine communications strategy. It is important of course to share good news. It is even more important to share bad news. Better for you to explain the situation than someone else. Better yet - offer a solution. Developing a relationship based on openness and honesty won't guarantee a better outcome, but if your company is perceived as one that hides the ball or appears outright dishonest, your outcomes will definitely be worse.
Commissioner Communication Constraints. The Arizona Corporation Commission is bound by strict ex parte rules. Once your case is set for hearing, you cannot talk to a Commissioner, his/her aide, or the administrative law judge concerning the subject matter of the case. The Commission is also bound by strict open meeting rules - No more than two Commissioners can discuss any matter before them without noticing a public hearing.
Sufficiency. Once your filing has been made, the Commission Staff has 30 days to investigate the filing and determine whether it is "sufficient" - Does the filing "substantially comply with the Commission's rules governing the filing requirements for applications for increased rates or charges for utility service." A.R.S. § 40-256(B). If the filing is deemed not sufficient, then you will have to remedy the insufficiency, typically by providing additional information. The Commission typically has 270 days to issue a decision after sufficiency is found- but there is no penalty if they miss the deadline, nor are interim rates available. Staff may ask for a waiver of the time-clock rules. It is wise to grant the request unless it's life or death.
Procedural Order. The Administrative Law Judge will next issue a Procedural Order, typically within a week or two of the sufficiency finding. The Procedural Order sets the case schedule and provides customer-notice requirements. The ALJ will work backward from the decision deadline, with enough time for preparation of a proposed order. The schedule will include dates for the evidentiary hearing and include deadlines for:
- Notices
- Intervention
- Staff and Intervenor testimony
- Company rebuttal testimony
- Staff and intervenor surrebuttal testimony
- Company rejoinder testimony
Hearing. The hearing is conducted by the Administrative Law Judge, who is a Commission employee. The hearing begins with opening statements and then public comments. In a big case, the Commissioners will be there for public comment and you may see members of the press or even TV cameras. After the evidentiary phase begins, Commissioners may sit in and ask questions or provide them for the ALJ to ask. This is a semi-judicial proceeding, although it is relatively informal, and evidentiary rules are greatly relaxed. At the risk of sounding self-serving, it is a bad idea to hire a trial attorney to represent you at the Commission. Stick with an experienced ACC attorney. One more tip, be good to the Court Reporter.
Post Hearing. The ALJ will set a briefing schedule at the end of the evidentiary hearing, which typically provides for two rounds of simultaneous briefs. Following the reply briefs within one or two months, the ALJ will issue a Recommended Opinion and Order. The Recommended Order will be accompanied by a notice that the matter will be considered at the next Open Meeting (two to three weeks). Exceptions (objections to any part of the Recommended Order) will be due approximately one week before the scheduled Open Meeting.
Open Meeting. The Open Meeting Agenda normally comes out one week before the scheduled Open Meeting. At the Open Meeting the full Commission will consider the Recommended Opinion and Order. The Commission can pass or reject it, or pass it with amendments. In Arizona, the Open Meeting can be a mini-hearing. The rate-case team should be ready to re-litigate any issue. For a major rate case, the hearing room will likely be filled with angry customers (voters) and press. Public comments are not under oath, but can still lead to modifications to the proposed order. Open Meetings are not transcribed. Bring a court reporter if you want to preserve the record for appeal.
Application for Rehearing. An application for rehearing is made under A.R.S. § 40-253. These are almost never granted and are deemed denied if no action within 20 days
Appeals. Appeals of rate orders are governed by A.R.S. § 40-254.01. They must be made within 30 days from when rehearing is denied or granted. Appeals go to the Arizona Court of Appeals, where the Commission rarely loses unless you can make a "clear and satisfactory showing that the order is unlawful or unreasonable." Even then a successful appeal may be a Pyrrhic victory which undermines your communications/relations strategy. Appeals of non-rate orders are governed by A.R.S. § 40-254. These go to Superior Court for a trial de novo.
Craig A. Marks PLC
Attorney at Law
Attorney at Law