Ohio’s public advocate for residential ratepayers wants the state’s high court to reverse a decision that blocked it from fully participating in a case it says adversely affected the rights of more than 1,000 people living in apartments.
The Ohio Consumers’ Counsel was denied intervenor status in a Public Utilities Commission of Ohio (PUCO) case over whether a company that provides billing and other electricity services for landlords is acting as a utility.
AEP Ohio accused the electrical submetering company Nationwide Energy Partners of usurping part of its role and offering services that infringed on its territory as a regulated, public utility.
The PUCO ruled last year in Nationwide’s favor, essentially stripping residents of five properties from several consumer protections and benefits that state law provides for utility customers.
The consumer advocate has appealed the decision to the Ohio Supreme Court, saying that regulators should have let it represent the interests of the apartment residents.
The case now before the Ohio Supreme Court began in late 2021 when AEP Ohio objected to a request that it drop nearly 1,100 residential accounts for people living in five Columbus-area apartment complexes. Nationwide would buy electricity for each complex from the utility and resell it to residents at a higher rate.
“From the customers’ perspective, Nationwide would be stepping into the shoes of AEP Ohio,” the complaint alleged. As such, it would be “mimicking a public utility and doing exactly what AEP Ohio currently does.”
The Consumers’ Counsel moved to intervene so it could represent the interests of the residents, who were not otherwise represented in the regulatory case. Nationwide objected, casting the case as just a commercial dispute.
While anyone can submit public comments in utility regulatory cases, formal intervenors become parties to the case and have a full seat at the table. The status includes rights to conduct pre-hearing fact-finding, brief legal issues, introduce evidence, and present or cross-examine witnesses.
Ohio Consumers’ Counsel Maureen Willis said utilities, marketers and submetering companies “will face far less resistance to their proposals” if the agency is precluded from doing its job. An Ohio statute says that job includes intervening in and representing residential consumers’ interests at the PUCO, in court and before other agencies.
What the tenants are losing
The PUCO “typically” grants the Consumers’ Counsel’s requests for intervention, said Ohio Deputy Consumers’ Counsel Angela O’Brien. “That being said, intervention by OCC is our statutory right and one that we closely guard in order to give consumers a voice on utility issues that matter to them,” she said.
In this case, a 2022 PUCO order denied the Consumers’ Counsel’s motion to intervene. Interests in protecting consumers were “not the issues that will be litigated in this proceeding,” the order said. The commission ruled in September 2023 that Nationwide is not a public utility and reaffirmed its decision in December 2023.
Ashley Brown, a former PUCO commissioner, said it was “crazy” for regulators to keep the Consumers’ Counsel out of the case. The ruling that Nationwide is not a utility “create[s] this inferior species of consumer at the whim of the landlord,” he said.
Among other things, a forced switch of tenants away from utility service makes them give up their rights under metering rules, eligibility for percentage-of-income-payment plans (PIPP), procedures required before shutoffs, access to the PUCO’s call-in line and procedures for filing complaints against regulated electric companies, and more. Ratepayers of regulated electric distribution utilities also have a general right to choose a competitive electricity generation supplier.
The PUCO ruling also means residents won’t be guaranteed the right to benefit from time-of-day rates or other demand-side programs that could improve grid reliability, Brown said. Similarly, tenants won’t be eligible for utilities’ energy efficiency programs if pending legislation clears the way for those to start up again after the state’s 2019 nuclear and coal bailout law gutted Ohio’s prior clean energy standards.
Similar issues are presented in another regulatory case involving Duke Energy and Nationwide Energy Partners. The PUCO has not yet ruled on the Consumers’ Counsel motion to intervene there. Duke Energy Ohio supports the Consumers’ Counsel’s participation, while Nationwide opposes it.
AEP Ohio has sided with the Consumers’ Counsel, saying a forced switch will cause customers to lose rights they’ve had as ratepayers.
“We believe all customers in our service territory should be able to easily understand their bill and get all of the same regulatory protections when offered utility service by someone other than their landlord,” said spokesperson Scott Blake, adding that submetering companies generally don’t make the same types of low-income help available to residents.
What happens next
AEP Ohio has a separate appeal pending at the Ohio Supreme Court, where it challenges the PUCO’s finding that Nationwide is not a regulated utility. AEP Ohio also challenges parts of the PUCO’s order requiring it to place consumer-protection conditions in its contract with Nationwide. AEP Ohio’s filing describes those conditions as unworkable, unreasonable and unlawful, adding that any tariff requirements should be adopted through notice-and-comment rulemaking.
On Feb. 23, Nationwide moved to intervene in the Consumers’ Counsel’s appeal to the Ohio Supreme Court, as well as in AEP Ohio’s appeal. If the Consumers’ Counsel wins, Nationwide “will be forced to incur the cost of expensive and unnecessary re-litigation of the issues already decided by the PUCO,” lawyers for the company wrote.
“Unfortunately, we cannot comment on open dockets,” said Teresa Ringenbach, Nationwide’s vice president of business development, when asked if the company would have dropped its opposition to the Consumers’ Counsel’s intervention if it knew a denial would lead to the appeal before the state supreme court. She did say Nationwide is prohibited from offering PIPP for tenants, but some other payment assistance programs may be available.
“The commission speaks through its opinions and orders and other rulings,” PUCO spokesperson Matt Schilling said when asked for comment. “Each case is heard on its own merits on a case-by-case basis,” based on Ohio law and rules, he added.
The Consumers’ Counsel represents residential ratepayers in hundreds of cases, but the AEP Ohio and Duke submetering cases are not the only instances where it has been denied participation. A September 2023 ruling kept the Consumers’ Counsel from intervening in a case dealing with a $5.2 million increase in AEP Ohio charges to ratepayers to cover low-income assistance programs.
The Consumers’ Counsel was also initially excluded from a case to settle price gouging claims, where some customers’ monthly bills were nearly $700 per month. The PUCO’s initial December 2023 order said the case involved “the resolution of fact-specific issues between Staff and Inspire Energy and only those issues.” The Consumers’ Counsel pushed for reconsideration, and the commission reversed that ruling on Feb. 7.
In Brown’s view, the Consumers’ Counsel should have had full party status from the get-go in both the price gouging case and the submetering case.
“The whole idea of having a public utilities commission is that things are open, they’re transparent, they’re participatory. You give consumers access,” Brown said.
Karin Nordstrom, an attorney with the Ohio Environmental Council, said Ohio law favors broad intervention in PUCO matters. Also, she said, “consumers must have access to reliable utility service as we face more severe weather due to climate change.” Without discussing the merits of any particular case, she added that a well-funded consumers’ counsel with access to experts “is an imperative component of maintaining a fair and transparent utility process.”
For now, the Consumers’ Counsel’s brief in the submetering case is due at the Ohio Supreme Court later this month. That date might shift if a motion for extension is filed or if the Ohio Supreme Court consolidates the case with AEP Ohio’s appeal.