Chapter 365: Complaints to the Department of Energy and Proceedings Before the Commission

Any person may make a formal complaint to the department of energy by petition setting forth in writing any thing or act claimed to have been done or to have been omitted by any entity subject to the department's or commission's jurisdictions and in violation of any provision of statute or rule, or of the terms and conditions of registration, tariff, community aggregation plan, its franchises or charter, or of any order of the department or commission, provided such person has first made the same or a substantially similar complaint to the department's consumer services division and exhausted all available remedies available through that division. RSA 541-A:29 and RSA 541-A:29-a shall not apply to informal or formal complaints filed with the department.

Except for complaints about RSA 371:17 through RSA 371:24, RSA 374:2-a, RSA 374:22-p, I(b), RSA 374:28-a, RSA 374:34-a, RSA 374:48 through RSA 374:56, RSA 374:59, and RSA 378:44 through RSA 378:48, the provisions of this chapter shall not apply to any end user of an excepted local exchange carrier, nor to any service provided to such end user. Such end users may make complaints regarding basic service, as defined by RSA 374:22-p, I(b) by excepted local exchange carriers. Except for complaints about RSA 371:17 through 371:24, 374:34-a, 374:48 though 374:56, and 374:59, the provisions of this chapter shall not apply to any end user of a voice over Internet protocol (VoIP) provider, IP-enabled service provider, or cellular mobile radio communication services carrier.

The department of energy may investigate and resolve any complaint made to the department using non-adjudicative procedures. The department may adopt rules for this purpose or may set out procedural requirements by order for the investigation and resolution of complaints.

If the jurisdictional entity complained of shall make reparation for any injury alleged and shall cease to commit or to permit the violation charged in the complaint, and shall notify the department of energy of that fact, the department shall not be required to take any further action upon the matters complained of.

If the charges are not resolved voluntarily as provided in RSA 365:2 or satisfied as provided in RSA 365:3, then, for complaints over which only the department has jurisdiction, the department of energy may either issue an order dismissing the complaint or commence an adjudicative proceeding. For complaints over which the commission has jurisdiction, if requested by the person filing the complaint, the department shall transfer the complaint petition to the commission, along with a report of its investigation and attempts to resolve the complaint, whereupon the commission shall issue an order of notice opening an adjudicative proceeding.

The commission, on its own motion or upon petition of a public utility, and the department of energy may investigate or make inquiry in a manner to be determined by it as to any rate charged or proposed or as to any act or thing having been done, or having been omitted or proposed by any public utility; and shall make such inquiry in regard to any rate charged or proposed or to any act or thing having been done or having been omitted or proposed by any such utility in violation of any provision of law or order of the commission or the department.

Both the commission and the department of energy may at any time personally, or by its experts or agents, inspect the property, works, system, plant, devices, appliances and methods used by any public utility, or its books, papers and records.

Any expert or agent of the department of energy or the commission, who shall make a demand on behalf of the commission or the department to be allowed to inspect as provided in RSA 365:6, shall produce written authority to make such inspection signed by the chairperson of the commission or the commissioner of the department of energy.

I. The commission shall adopt rules, pursuant to RSA 541-A, relative to:

(a) The conduct of its hearings, including alternative processes in hearings and other forms of alternative dispute resolution.

(b) Standards and procedures for streamlined review or other alternative processes to enhance the efficiency of the commission and respond to the needs of the utility's ratepayers and shareholders.

(c) Standards and procedures for the creation, monitoring and evaluation of alternative forms of regulation.

(d) Standards and procedures for the handling of confidential information, in accordance with RSA 91-A.

(e) Standards and procedures for filing requirements for tariffs, engineering, accounting, and other commission matters.

(f) Standards and procedures for franchise terms and conditions, including extended area telephone service.

(g) Standards and procedures for safe and reliable utility service and termination of service subject to RSA 363-B.

(h) Standards and procedures for matters related to the proper administration of RSA 366 relative to utility relations with affiliates.

(i) Standards and procedures relative to a reasonable amount of the short-term notes, bonds or other evidences of indebtedness based upon the amount of the utility's respective plant investment which each utility shall not exceed without first obtaining the approval of the commission pursuant to RSA 369:7.

(j) Standards and procedures for determination and recovery of rate proceedings expenses.

(k) Standards and procedures for the conduct of investigations authorized under this title.

(l) Procedures necessary to provide for the proper administration of and to further the purposes of this title.

(m) [Repealed.]

(n) Standards and procedures for public utilities to request protection of routine filings that contain confidential commercial or financial information.

II. Where the commission has adopted rules in conformity with this section, proceedings before the commission shall not be subject to RSA 541-A:29 or RSA 541-A:29-a.

In any such investigation or hearing, the commission shall not be bound by the technical rules of evidence.

The commission shall have power to subpoena witnesses and administer oaths in any proceeding or examination instituted before or conducted by it, and to compel, by subpoena duces tecum, the production of any accounts, books, contracts, records, documents, memoranda and papers of any kind whatever.

Notwithstanding any other provision of law to the contrary, the commission may in its discretion determine who, in addition to those lawyers licensed in the state of New Hampshire to do so, may appear before the commission on behalf of any party, provided, however, that the discretion shall not be exercised unreasonably or in a discriminatory manner. All parties will be required to adhere to the commission's rules of practice and procedure in addition to any orders of the commission or agreements between the parties, including but not limited to those concerning confidentiality.

Any person who wilfully shall fail or refuse to attend to testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, contracts, agreements, or other records, if in his or its power so to do, in obedience to the subpoena of the commission, shall be subject to the provisions of RSA 491:19 and 491:20.

When any such summons shall be endorsed by the secretary, or assistant secretary, or by a commissioner, as follows, "Legal fees of witnesses guaranteed by the State," advance payment of fees shall not be required, but any witness served with such summons shall appear as directed therein as a witness for the state, and his legal fees therefor shall be paid out of any appropriation for the use of the commission available for the purpose.

In lieu of requiring production of originals by subpoena duces tecum, the commission may require sworn copies of any such books, records, contracts, documents and papers or parts thereof be filed with it.

The commission may also require any public utility to make specific answers to questions upon which the commission may need information.

No person shall be excused from testifying or from producing any book or paper in any investigation or inquiry by or upon any hearing before the commission, when ordered to do so by the commission, upon the ground that the testimony or evidence, book or document required of him may tend to incriminate him or subject him to a penalty or forfeiture; but no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which under oath, after claiming his privilege, he shall by order of the commission have testified or produced documentary evidence.

No person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony.

Nothing herein contained shall give to any corporation immunity of any kind.

In any case in which the commission may hold a hearing it may, before or after such hearing, make such independent investigation as in its judgment the public good may require; provided, that, whenever such investigation shall disclose any facts which the commission shall intend to consider in making any decision or order, such facts shall be stated and made a part of the record, and any party whose rights may be affected shall be afforded a reasonable opportunity to be heard with reference thereto or in denial thereof.

The commission may at any time reserve, certify and transfer to the supreme court for decision any question of law arising during the hearing of any matter before the commission.

The procedure for rehearings and appeals shall be that prescribed by RSA 541, except as herein otherwise provided. Notwithstanding RSA 541:5, upon the filing of a motion for rehearing, the commission shall within 30 days either grant or deny the motion, or suspend the order or decision complained of pending further consideration, and any order of suspension may be upon such terms and conditions as the commission may prescribe.

Whenever the commissioner shall be of the opinion, after a hearing had upon his own motion or upon complaint, that any part of any railroad operating as a common carrier of passengers or freight within the state reasonably requires alteration or reconstruction, or that the regulations, practices, equipment, appliances or service of any such railroad in respect to transportation of persons or property within the state are unjust, unreasonable, unsafe, improper or inadequate, the commissioner of the department of transportation shall determine the reconstruction or alteration reasonably required, or the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force or to be provided, and shall fix and prescribe the same by order to be served upon every such railroad to be bound thereby.

Thereafter it shall be the duty of every such public utility to observe and obey every requirement of such order so served upon it, and to do everything necessary or proper in order to secure compliance with and observance of the same by all the officers, agents and employees.

The rates, fares and charges fixed and allowed by the commission to be charged and collected by any public utility shall remain in effect until altered by a subsequent order of the commission or until a new schedule of rates, fares and charges shall have been filed or published by the utility in accordance with RSA 378:3.

Except as otherwise herein provided, every order of the commission requiring any public utility to do or not to do anything shall take effect at the time therein specified, and shall continue in effect for such period as shall be therein designated, and if no period shall be designated, until the same shall be altered, amended, suspended, annulled, set aside or otherwise modified by the commission or the court.

Orders of the commission granting authority or permission to do any act or thing need not be served; but the exercise in any part of the authority or permission granted in any such order shall charge the party so exercising such authority or permission with full knowledge of said order; and such party shall comply with all requirements thereof, and fully conform thereto.

At any time after the making and entry thereof, the commission may, after notice and hearing, alter, amend, suspend, annul, set aside, or otherwise modify any order made by it. This hearing shall not be required when any prior order made by the commission was made under a provision of law that did not require a hearing and a hearing was, in fact, not held.

On its own initiative or whenever a petition or complaint has been filed with the commission covering any rate, fare, charge, or price demanded and collected by any public utility, and the commission has found, after hearing and investigation, that an illegal or unjustly discriminatory rate, fare, charge, or price has been collected for any service, the commission may order the public utility which has collected the same to make due reparation to the person who has paid the same, with interest from the date of the payment. Such order for reparation shall cover only payments made within 2 years before the earlier of the date of the commission's notice of hearing or the filing of the petition for reparation.

Such order may be made without formal hearing whenever the public utility affected shall assent in writing thereto, or file or join in a petition therefor.

Every order required to be served shall, where the public utility affected has an agent in the city of Concord, appointed as provided herein, be served upon said agent by giving a certified copy thereof to him in hand, or by leaving a like copy at his office or residence.

If no agent has been so appointed, service may be made by giving a like copy to any person upon whom service could be made in an action at law against such public utility, or by sending the same by mail, postage prepaid, addressed to such public utility at any usual post office address of the same.

Any public utility may, by writing filed with the commission, appoint an agent who shall reside and have an office in the city of Concord, upon whom service for and on its behalf may be made by the commission. Such appointment may at any time be revoked or a new appointment made by like writing similarly filed.

Any public utility ordered to make reparation hereunder shall conform to said order and make payment as required therein. Upon failure to make such payment upon demand, the amount ordered paid may be recovered with interest in an action of debt brought by the person to whom payment was ordered; except that, in the case of costs ordered paid to the commission, suit shall be brought in the name of the state. Like action may also be brought to recover fees due the commission.

In any action brought to recover costs, fees or reparation ordered the plaintiff shall be entitled to tax as costs all of his necessary expenses in the action, including reasonable attorney's fees.

The commission may fix and collect reasonable fees for copies of its records, certified or otherwise, for copies of testimony taken before the commission and for its publications.

I. Whenever any investigation by the commission or the department of energy shall be necessary to enable the commission to pass upon any petition for authority to issue stocks, bonds, notes, or other evidence of indebtedness, for authority to operate as a public utility or to expand operations as a public utility, to make extensions into new territory, to discontinue service, to condemn property for flowage rights and dam construction, or for authority to sell, consolidate, merge, transfer, or lease the plant, works, or system of any public utility, or any part of the same, or for any other matter which requires the approval of the commission or the department of energy, the petitioner shall pay to the department of energy the expense involved in the investigation of the matters covered by said petition, including the amounts expended for experts, accountants, or other assistants. Such expense shall not include any part of the salaries or expenses of the commissioners or of employees of the commission or department of energy or, unless the proceeding is being conducted pursuant to RSA 38, the fees of experts testifying as to values in condemnation proceedings.

II. Whenever the commission institutes a proceeding, or when more than one utility subject to the jurisdiction of the commission shall be involved in a proceeding in which the commission or the department of energy requires the assistance of experts, accountants or other assistants, regardless of whether they petitioned the commission in the first instance, the commission and the department of energy may assess the costs of experts, accountants or other assistants hired by the commission or the department of energy against the utilities and any other parties to the proceeding. The commission and the department of energy shall not, however, assess any such costs against the office of the consumer advocate or against any voluntary corporation, not-for-profit organization, or any municipality unless the municipality is involved in a proceeding before the commission pursuant to RSA 38. In the case of a utility, the assessment of those costs shall be based on the annual revenues of the participating utilities in the same manner as issued in assessing the annual operating expenses of the commission and the department of energy, or as appropriate and equitable on a case by case basis. In the case of a party who is not a utility, the assessment of those costs shall be as appropriate and equitable on a case by case basis. Such expenses shall not include any part of the salaries or expenses of the commissioners or of employees of the commission or of employees of the department of energy or, unless the proceeding is being conducted pursuant to RSA 38, the fees of experts testifying as to values in condemnation proceedings.

III. For investigations or proceedings involving the acquisition, merger, transfer, sale, or lease of the works or system of a public utility, the commission and the department of energy shall not enter into a contract with experts, accountants, or other assistants in an amount greater than $10,000, including any contract extension, without the approval of the governor and council. For all other investigations or proceedings, the commission and the department of energy shall not enter into a contract with experts, accountants, or other assistants in an amount greater than $10,000, including any contract extension, without the approval of governor and council.

Whenever any investigation or proceeding shall be necessary to enable the commission to pass upon the reasonableness of the rates or charges by a public utility, the utility shall pay to the department of energy the expenses involved in the investigation, including the amounts expended by the commission and the department of energy for attorneys, experts, accountants, or other assistants, but not including any part of the salaries or expenses of the commissioners or of employees of the commission or department of energy; provided, that the amount charged to the utility in any such case shall not exceed 3/4 of one percent of the existing valuation of the utility investigated, such expenses with 6 percent interest to be charged by the utility to operating expenses and amortized over such period as the commission shall deem proper and allowed for in the rates to be charged by the utility.

The commission may allow recovery of costs associated with utility proceedings before the commission, provided that recovery of costs for utilities and other parties shall be just and reasonable and in the public interest. For purposes of this section, other parties shall be defined as retail customers that are subject to the rates of the utility and who demonstrate financial hardship; other parties shall not include New Hampshire municipalities. Recovery by other parties shall be deemed to be in the public interest when, in any commission proceeding, the other party substantially contributes to the adoption by the commission, in whole or in part, of a position advocated by the other party in that proceeding, or in a judicial review of that proceeding. Another party shall not recover more than $10,000 from any utility for any single proceeding. The commission may allow recovery of less than $10,000 depending upon the scope of the proceeding. The utility shall pay the other party an award of costs if such award is granted by the commission in accordance with the procedures and requirements of the commission and the award is subsequently approved by the governor and council. The utility shall not be liable for any award of costs except in accordance with the procedures and requirements of the commission. If the commission proceeding involves more than one utility, the liability of each utility for the award shall be determined by dividing the amount of the award among the utilities in a manner approved by the commission. If an award of costs is granted in a proceeding involving a change in a utility's rates, the entire amount of the award shall be recovered by the utility in that proceeding. If an award of costs is granted in a proceeding other than one involving a change in a utility's rates, the entire amount of the award shall be immediately recovered by the utility through measures approved on a timely basis by the commission.

All sums collected in fees by the commission or paid to it as costs shall be paid to the state treasurer at least once each month, with an itemized statement of the same.

Every public utility and all officers and agents of the same shall obey, observe, and comply with every order made by the commission or department under their authority so long as the same shall be and remain in force.

Any public utility which shall violate any provisions of this title, or fails, omits or neglects to obey, observe or comply with any order, direction or requirement of the commission or the department of energy, shall be subject to a civil penalty, as determined by the commission, not to exceed $250,000 or 2.5 percent of the annual gross revenue that the utility received from sales in the state, whichever is lower. Such penalties shall be applied to the benefit of the utility's ratepayers through a credit to bills, or, if the credit is of an amount determined by the commission to be insignificant on a per customer basis, to programs that benefit low income ratepayers. No portion of any fine, nor any costs associated with an administrative or court proceeding which results in a fine pursuant to this section, shall be considered by the commission in fixing any temporary, permanent, or emergency rates or charges of such utility.

Every officer and agent of any such public utility who shall wilfully violate, or who procures, aids, or abets any violation of this title, or who wilfully fails to obey, observe, and comply with any order of the commission or the department, or procures, aids or abets any such public utility in its failure to obey, observe, and comply with any such order or provision, shall be subject to a civil penalty, as determined by the commission, not to exceed $100,000 for each violation. Such penalties shall be distributed to the benefit of the utility's ratepayers through a credit to bills, or, if the credit is of an amount determined by the commission to be insignificant on a per customer basis, to programs that benefit low income ratepayers.

Any forfeiture incurred under the provisions of this chapter shall be recovered in an action brought by the attorney general in the name of the state, and when recovered shall be paid to the state treasurer.

The commission shall have authority to direct the institution of such action, and the attorney general may institute it without direction whenever he shall have knowledge that such forfeiture has been incurred.