5. Discussion
Although complainant believes that the contract language alone is controlling and that SCE's failure to provide complainant with a copy of its
Rule 15 tariff should result in the tariff not being applicable here, we disagree. We also disagree with complainant's contentions that the Rule 15 Contract fails to mention the applicable tariff and that application of only the contract language would change the result here. The applicable contract language contained in the Rule 15 Contracts is consistent with the tariff.
It is a long-standing requirement of public utility regulation that the lawful tariff provisions must be administered regardless of any statements by the utility at variance with the tariffs, whether oral or written. Pinney & Boyle Mfg. Co. v. Atchison, T. & S.F. Ry. (1914) 4 Cal RRC 404. A utility is under the duty to strictly adhere to its lawfully published tariffs. Temescal Water Co. v. West Riverside Canal Co. (1935) 39 Cal RRC 398. Tariffed provisions and rates must be inflexibly enforced to maintain equity and equality for all customers with no preferential treatment afforded to some. Empire W. v. Southern Cal. Gas. Co. (1974) 38 Cal App 3d 38, 112 Cal Rptr 925. Furthermore, the published tariff becomes established by law and can only be varied by law, not by an act of the parties. Johnson v. Pacific Tel. & Tel. Co. (1969) 69 Cal PUC 290. A misquotation or misunderstanding does not relieve the parties from the terms, conditions and rates in the tariff. Sunny Sally, Inc. v. Lom Thompson (1958) 56 Cal PUC 552. Whether or not defendant's service representative misspoke, complainant misunderstood, or the contract contains mistakes, the lawful tariff provisions must be administered and applied.
Although tariff provisions must be inflexibly enforced regardless of whether SCE's representative misspoke or complainant misunderstood the tariff, complaints such as this one might be avoided through more effective customer service. SCE should endeavor to provide sufficient information for line extension applicants to be aware of the applicable tariff and know where to find the tariff. Effective customer service and education in this case would have saved both SCE and Solomon from having to expend resources litigating this matter.
For complainant to prevail in this case, complainant must establish by a preponderance of the evidence that defendant erred in its administration and application of its tariffs. With the sole exception of the refund due on the CVWD pump, complainant fails to meet this burden of proof.
Pursuant to the Rule 15 Contracts executed by the parties, Solomon paid SCE an advance on each project. The advance constituted SCE's total estimated cost to complete the Distribution Line Extension less any allowances granted in advance of the project plus any applicable ITCC on any contributions and advances paid by Solomon. SCE could not complete the Distribution Line Extension without the advance because the total estimated installed cost exceeded the allowances from bona-fide permanent loads. As a result, even when Solomon put on-line every home and meter for which SCE had granted an allowance, he is not be entitled to a refund of monies advanced because the cost of the Distribution Line Extension exceeded the amount of revenue to be generated by Victoria Falls.
Both Rule 15 and the Rule 15 Contracts clearly state that refunds will be made on the basis of a new customer's Permanent Load which produces additional revenues to SCE. Complainant has, with one exception discussed below, failed to show that new permanent load was added to the Distribution Line Extension, which has generated additional revenues (above the allowances granted) to SCE. As a result, complainant has failed to show that SCE is obligated to pay all refundable amounts sought.
5.1. CVWD Pump Refund
Rule 15 and the Rule 15 Contract place the burden on the defendant to affirmatively identify new non-residential permanent load coming on line which might generate additional revenue to support a refund. This requirement is in place for three years from the ready-to-serve date for the line extension. In this case, the applicable contract/work order review provides the defendant was ready to serve on October 26, 2000.19 Defendant submitted evidence that it was aware construction was completed on the CVWD well pump on August 7, 2003 and that the pump came on line on August 11, 2003.20 Irrespective of the fact that the pump was not on the construction sequence list, defendant had actual knowledge of the pump and when service began to that pump.
Rule 15.E.7 provides that "Refunds will be made without interest within
ninety (90) days after the date of first service to new permanent loads, except that refunds may be accumulated to a $50 minimum or the total refundable balance, if less than fifty dollars ($50)." Defendant violated the tariff by failing to pay the refundable amount due to complainant within the 90-day period.
Rule 15 gives defendant 90 days to send refund money to qualifying applicants without any imposition of interest to encourage defendant to make these payments in a specific period of time. Without such a provision, there would be no reason for defendant to pay refunds prior to the expiration of the
10-year contract period regardless of when new permanent load came on line. Defendant's belief that interest is simply not paid on refunds is not consistent with the tariff. Failure to make timely payment is a violation of the tariff and the Commission has the discretion under the Preliminary Statement E.2 to order payment of interest.
Defendant failed to pay complainant the refund due within 90 days of the CVWD pump coming on line. Defendant has deprived complainant of the ability to use money due to him for over six years. Interest is simply payment for defendant's use of that money. Defendant is ordered to pay complainant interest at the rate SCE charges its own customers for late payments, which is 0.9% per month beginning 90 days after the date the pump went on line, August 11, 2003.21 The remainder of the complaint against SCE is denied.
19 Exhibit 201 at Tab 6879-1810-0-1814.
20 Southern California Edison Company's (U338E) Response to Request for More Information During Evidentiary Hearing dated June 30, 2010, Exhibit A.
21 SCE's Tariff Rule 9, adopted in D.04-07-022.
