4. Appeal of Presiding Officer's Decision
The presiding officer's decision (POD) was filed and served on the parties to this proceeding on September 28, 2006. Pursuant to Rule 14.4 of the Commission Rules of Practice and Procedure, Bee Sweet filed its timely appeal of the presiding officer's decision seeking reversal. SCE responded, seeking affirmation. Bee Sweet's appeal is without merit and is denied. The appeal merely restates arguments that have already been rejected and ignores Bee Sweet's failure to meet its burden of proof.
Bee Sweet argues that the POD failed to make findings of fact regarding whether power was actually used during the on-peak time period. Contrary to Bee Sweet's claim, the POD does make a finding of fact that the meters were tested and found to be working properly.3 Implicit in this finding is a determination that energy was used during the on-peak time periods as registered by the meters. Other findings regarding energy use include Finding of Fact 13 ("There is no persuasive evidence that the sporadic failure to turn off the pumps prior to the on-peak schedule was the fault of SCE."); and Finding of Fact 14 ("There is no persuasive evidence that SCE caused Bee Sweet's use of electricity during the on-peak periods.").
Bee Sweet argues that since there was substantial testimony by numerous Bee Sweet witnesses, both in the submitted testimony and in person at the hearing, that the pumps did not run, the failure of the POD to address and make findings of fact on this point is error.
First, we observe that the POD makes findings on those points, as discussed above. Second, we agree with SCE's comment that "Bee Sweet relies only on the statements of its witnesses that they sometimes visited the property to make sure the pumps were not running during on-peak times. However, these visits are undocumented, and the dates, times and durations of these visits are unknown. Certainly, this is not substantial evidence that the pumps never ran, at any time whatsoever, during the 4-hour on-peak time period (1:00 p.m. - 5:00 p.m.) during the summer months." (SCE response, p. 7.)
Bee Sweet contends that the POD fails to discuss or make findings whether SCE has the right to allege and/or bill for on-peak usage when it represented that if Bee Sweet paid SCE for the installation of TMLC units at the meters the TMLC units would prevent on-peak usage. This contention is without merit.
It is axiomatic that the tariff rate must be collected and that the utility may not waive the charge. Bee Sweet's claim, if granted, would violate Section 453(a) of the Public Utilities Code, which provides:
No public utility shall as to rates, charges, service, facilities, or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage.
SCE's customers are responsible for charges applicable to their service. To the extent Bee Sweet seeks to avoid the charges mandated by SCE's tariffs, it is seeking an unlawful preference not accorded to other customers.
More specifically, at the time SCE installed the TMLCs, SCE provided Bee Sweet with a manual that set forth Bee Sweet's obligations with respect to the TMLCs and controlling its own load. The manual describes the operation, installation, and limitations of the TMLC, including SCE's responsibilities and the customer's responsibilities. Among other things, it states that "[t]he Customer is responsible for all on-peak charges incurred for all loads not interrupted by the TMLC including, but not limited to, those loads which have been bypassed intentionally or accidentally as well as all other applicable charges."4 Accordingly, Bee Sweet's claim that SCE had a contractual obligation to prevent all on-peak usage by virtue of the installation of the TMLCs is contrary to the most reasonable interpretation of the evidence.
Finally, Bee Sweet complains that the POD was not issued on the date estimated in the Scoping Memo. The memo, dated in December 2005, estimated a POD by August 2006. An estimated time for a POD to issue is just that, it is neither a guarantee nor jurisdictional.
3 POD Finding of Fact 9 ("An SCE meter technician on or about October 2004 inspected the SCE meters at the ranch in connection with the 2004 on-peak usage charges. He verified that on-peak usage occurred. He found the meters to be working properly.").
4 SCE provided Bee Sweet with the Spectra Laser Systems manual (the "SLS Manual," which was provided to Bee Sweet in connection with the installation of the TMLCs) and the "Appendix A, Normal/Bypass Key Switch Key Receipt Forms" in which Bee Sweet acknowledged that it "read the above description and acknowledge receipt of the Bypass Key and the manufacturer's TMLC operation and installation manual.") (Exhibit 9.)
