III. Facts

PG&E installed the electric meter at issue in this case at MRCH on January 12, 1990. In order for the installed meter to perform its purpose of registering complainant's consumption of energy, it was also necessary for PG&E to connect the meter to MRCH's facilities. This connection was made by inserting three separate energy bearing wires into an adapter which, in turn, was connected to the meter. This type of installation is common to larger energy consumers, according to PG&E.

The meter is regularly read and provides consumption data from which PG&E prepares its billings to the customer. While the customer has no access to the meter unless he or she tampers with it, PG&E may readily remove, replace, and test it at PG&E's option. In this case, the parties agree that only PG&E had access to the meter. Further, PG&E asserts that the meter at all times was correctly registering the energy passing through it. MRCH, having no knowledge of the meter's operation, does not dispute that the meter operates properly.

On July 22, 1996, a PG&E meter system technician, without notice to the customer, conducted a routine examination of PG&E's meter and connections of MRCH. The technician disconnected the meter and made independent load checks which showed that some energy was not flowing through the adapter so as to register on the meter. Further investigation revealed that one of the three wires leading to the adapter was, in fact, not connected to the adapter.

This condition of one of three wires being unconnected would result, other things being equal, in approximately one third of the energy consumed at MRCH not passing through the adapter and, thus, not being registered at PG&E's meter.

The technician telephoned his supervisor from the site to report his findings and to receive instructions. The supervisor agreed with the technician that the problem should be corrected by making sure that all three wires were properly affixed to the adapter and the adapter reconnected to the meter. This was done, the technician's report stating that "'B' phase potential to the meter not connected. Rewired with new Ekstrom adapter."

A second July 22, 1996 report by the technician following his repair work states: "Test fine with new adapter."

The technician then returned to his office and threw the parts that he had removed from MRCH into a trash bin although it is unclear whether the "B" phase potential itself was replaced and discarded. The adapter was said to have been replaced and junked, but whether it was defective remains a question. The unconnected wire may have been reconnected or, as the technician testified, it may have been replaced, and the old one discarded. The meter itself was found to be operating properly and left in place.

On the next day, the technician and his supervisor returned to MRCH, examined the system, and found it to be in order.

Neither the technician nor his supervisor had any conversations with complainant or its staff during their visits or otherwise. The technician reported his findings to PG&E's account representative in the area who had clerical staff in San Francisco prepare a billing history of MRCH. From these statistics, the account representative concluded that approximately one third of complainant's energy usage was not being registered on the meter.

The account representative reported in August 1996 to complainant that it appeared that a PG&E wire had become disconnected in February 1992 causing PG&E to underbill in the amount of $108,000 until the problem was found and fixed in July 1996. Complainant was informed that although the problem was caused solely by PG&E, Tariff Rule 17, Meter Tests and Adjustment of Bills for Meter Error, required an additional billing for three years.

PG&E and complainant agreed to wait for a period of time in order to accumulate current billing history. On December 9, 1996, the utility mailed complainant a letter bill in the amount of $76,668.48 together with a copy of Tariff Rule 17.

On September 5, 1997, PG&E's account representative notified complainant that it was revising its original proposal by increasing its conservation savings estimate and reducing its usage estimate so as to lower its bill from $76,668.48 to $63,778.80.

This revised estimate of undercharges was not acceptable to MRCH, and, on May 18, 1999, this complaint was filed.

On September 24, 1999, PG&E filed a complaint for Services Furnished and Rendered against MRCH in Humboldt County Superior Court. Reportedly, the Superior Court action is duplicative of this proceeding except that PG&E is there alleging underbilling of $108,000. It can be assumed that the higher prayer ($108,000 as compared to $76,668.48 or $63,778.80) is the result of PG&E using the full term of alleged undercharging of four years rather than the three years used in this case. Counsel for MRCH states that the Superior Court trial is scheduled for August 21, 2000.