3. Motion to Dismiss
Pursuant to Pub. Util. Code § 1702, a complaint must show an "act or thing done or omitted to be done by any public utility, including any rule or charge heretofore established or fixed by or for any public utility, in violation, or claimed to be in violation, of any provision of law or of any order or rule of the Commission." SDG&E argues it properly adhered to the applicable tariff provisions, Commission rules and decisions when it refused to allow Community Housing to take service under Schedule VNM-A and that Complainant impermissibly uses the Amended Complaint to collaterally attack Commission D.08-10-036 in violation of Pub. Util. Code § 1709. SDG&E moves to dismiss the complaint on the following grounds:
A. SDG&E argues D.08-10-036 requires tenants be individually metered to be eligible for service under virtual net metering
D.08-10-036 established virtual net metering to address the challenges of installing one solar PV system in multifamily housing complexes where each tenant's unit has a separate meter. As a result, the Commission ordered SDG&E to develop a virtual net metering tariff that would "allow for the allocation of net energy metering benefits from a single solar energy system to all meters on an individually metered multifamily affordable housing property."1 SDG&E states that, in establishing virtual net metering, the Commission clearly stated that virtual net metering can only work when tenants are individually metered.2
According to SDG&E, nowhere in D.08-10-036 or D.11-07-031, the decision modifying D.08-10-036, does the Commission extend virtual net metering applicability to master-metered facilities.
B. SDG&E argues Schedule VNM-A precludes SDG&E from providing services to a Master-Metered Complex
SDG&E argues Los Robles and its tenants are ineligible to take service under VNM-A for the following reasons:
· The billing process demands that the tenants are individually metered.
· The tenants of Los Robles do not qualify as "Qualified Customers." Because the tenants are not individually metered they are not currently SDG&E customers, and as a result, are not currently receiving service on a rate schedule like Schedule NEM.
· Under Schedule VNM-A a building owner may be considered a "Qualified Customer" if the owner provides virtual net metering to common areas and unoccupied areas. Community Housing is not a "Qualified Customer" because its master meter not only provides service to the common areas and unoccupied units, but also to occupied units.
According to SDG&E, allowing the tenants of Los Robles to take service under Schedule VNM-A frustrates the Commission's specific intent of creating virtual net metering to provide individually-metered tenants of multifamily affordable housing with a beneficial credit. Indeed, there is nothing preventing Community Housing from providing tenants credit for the solar energy system's production without virtual net metering.
C. SDG&E argues § 532 prevents SDG&E from deviating
from the applicable Tariff
Pub. Util. Code §532 prohibits a public utility from charging or collecting compensation that differs from what it is authorized to charge or collect under its "rates, tolls, rentals and charges applicable thereto as specified in its schedules on file." A public utility's tariff filed with the Commission has the force and effect of law.3 A utility must strictly adhere to its lawfully published tariffs.4
SDG&E argues it is prohibited from deviating from its tariff to permit Los Robles to take service under Schedule VNM-A. To do so would be a violation of both the terms of the tariff and Pub. Util. Code § 532 because SDG&E would be charging Los Robles a rate and collecting an amount different from what it is legally allowed to charge and collect under its tariff.
D. SDG&E contends the Amended Complaint is a Collateral Attack on D.08-10-086
SDG&E believes the Amended Complaint should be dismissed as an unlawful collateral attack on D.08-10-036. According to SDG&E, Complainant's request for a Commission determination that master-metered buildings, such as Los Robles, are eligible for virtual net metering is an attempt to reopen D.08-10-036 and related orders, to modify the Commission's decision. If Complainant seeks such action, it should file a petition to modify D.08-10-036 under Rule 16.4 rather than continue to prosecute this complaint in violation of § 1709.
1 D.08-10-036 at 38; also Ordering Paragraph 5; Appendix B.
2 D.08-10-036 at 34.
3 Dollar-A-Day Rent-A-Car Sys. v. Pac. Tel & Tel. Co., 26 CA 3d 454,457 (1972).
4 Solomon d/b/a Regency Homes v. Southern California Edison Company 2010 Cal. PUC Lexis 515 at 15.
