28329.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

BRIAN EMERICK,

Complainant,

vs.

IDAHO POWER COMPANY,

Respondent.
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CASE NO. IPC-E-00-3

ORDER NO. 28329

In February 2000, Brian Emerick filed an informal complaint against Idaho Power Company alleging that the Company had failed to properly inform him of the charges for obtaining underground service at a new residence located in Hailey, Idaho. Attempts to resolve the complaint informally were unsuccessful. Having exhausted his informal complaint remedies, Mr. Emerick on March 6, 2000, filed a “formal” complaint pursuant to the Commission’s Procedural Rules 24 and 54. See IDAPA 31.01.01.24, .25 and .54. After reviewing the complaint and the Company’s response, we issue this Order.
THE COMPLAINT
During the summer of 1999, Mr. Emerick was building a residence in Hailey, Idaho. Mr. Emerick considered two options on how to extend electric service to his new home. First, he could have a new service line extended from an existing meter at a pump house facility already located on the property. Second, he could install a new underground service line “from a transformer on the property to the new home, setting up a new meter on the home and by-passing the existing meter at the pump house facility.” Complaint at 1. To determine which option was the most efficient and cost effective, he visited Idaho Power’s field office. After discussing the two options with Idaho Power personnel, he concluded that the second option was preferred.
However, his inquiry did not end there. Having chosen the second option, he then was confronted with the question of who would perform the necessary construction. Here again there were two alternatives. Mr. Emerick could make separate arrangements for someone to dig the trench and lay the required conduit in the trench, or have Idaho Power perform the trenching and conduit work. Under both scenarios, Mr. Emerick indicated that the Company’s representative told him that “Idaho Power would pull the wire for free.” When he asked about “the parameters of the trenching and the conduit,” the Idaho Power employee explained the trenching requirements and provided Mr. Emerick with a brochure containing trenching and conduit requirements. Id. at 2. Based on his understanding that “Idaho Power would pull the wire for free,” Mr. Emerick contracted with an excavator to dig the trench and lay the conduit in conformance with Idaho Power specifications. When the trenching and conduit work were completed in December of 1999, Idaho Power was contacted to “pull the wires” which the Company did.
In January 2000, Mr. Emerick stated that he received a monthly bill from Idaho Power for an amount in excess of $300.00. He was surprised about the amount and decided to contact the Company. Upon contacting Idaho Power, he was informed that the majority of the billed amount was for the Company’s installation of the underground electric service to the new home. Mr. Emerick advised the Company that he had never been provided with the details of the installation charges and requested a breakout of the charges. He subsequently received “a printout of some fees, although it was somewhat difficult to read and understand.” Id. at 2.
Following his conversation with the billing department, he was contacted by the Idaho Power representative with whom he originally spoke. He told the Idaho Power representative that she had not provided a detailed breakout of the installation charges and he did not expect to pay any installation charges because of her representation that “Idaho Power would pull the wire for free.” His complaint states that based upon her recollection of their previous conversation, she described the installation charges “were essentially for the cost of the wire and that the labor was provided at no charge.” Id. He alleges that she admitted three to four times that in fairness she could not recall exactly what was said during the conversation. Mr. Emerick says he reminded her that she said the Company “would pull the wire for free” and she did not provide any information regarding installation charges. Mr. Emerick then contacted the Consumer Division of the Idaho Public Utilities Commission to register his informal complaint about the Company’s conduct.
In a subsequent conversation with the customer service representative, Mr. Emerick alleged that “her story changed” and she told him “she was certain that she had spelled out to me the costs of the work to be performed.” Complaint at 3. While he acknowledged that he had been provided with the trenching brochure, he only concerned himself with the trenching and conduit specifications.” Id. at 3. He characterized the dispute between the Company as a misunderstanding and that “Idaho Power needs to take some responsibility for the misunderstanding.” The customer service representative indicated that a billing representative in Boise would call him back the “following week.” Id. Mr. Emerick asserted he did not receive the follow-up call.
On March 2, 2000, Mr. Emerick did receive a late payment shut-off notice from the Company. He called Idaho Power “to remind them that the bill was being contested” thereby staying the termination of service. Mr. Emerick was eventually contacted by a Company Technical Advisor, Mr. Wewers. Mr. Emerick offered to pay 50% of the amount in dispute to settle the complaint. In his complaint Mr. Emerick asserted that Mr. Wewers agreed that there was a miscommunication between the Company and Mr. Emerick, but the Company was not willing to compromise the amount owed. Given this impasse, Mr. Emerick filed his formal complaint.
THE COMPANY’S RESPONSE
In a letter dated March 3, 2000, Mr. Wewers responded to Mr. Emerick and noted that the amount in dispute was $254.70 for the installation of underground service. In his letter, Mr. Wewers explained the calculation of the charge and acknowledged that there was “apparently a genuine misunderstanding between Idaho Power Company’s service representative and you.” Response at 1. However, Mr. Wewers stated that the charges for the work performed are in accordance with the tariff rate “and Idaho Power Company cannot impose a different charge than that required by the Company’s tariffs on file with the Idaho Public Utilities Commission.” Id.
FINDINGS OF FACT
The Commission has reviewed the formal complaint and the Company’s response. We find that the complaint and the response set out sufficient facts for us to issue a decision in this matter.
We first turn to the amount in dispute. In the Company’s response it stated that the total charge for installing the underground service to Mr. Emerick’s residence was $254.70 based upon the applicable tariffs. This amount was arrived at by charging the $30 flat installation charge plus $214 ($1.05 per foot of underground cable x 214 feet). Mr. Emerick does not dispute the distance nor the calculation but argues that he should not be charged given the representations made by Idaho Power that the Company would pull wire “for free.” Consequently, we find the billing amount in dispute to be $254.70.
Based upon our review of the complaint and Idaho Power’s response, we believe it is evident that there was not clear communications between Mr. Emerick and the Company representative. It is understandable that “pulling the wire for free” may be misleading when in fact the Company’s tariffs require the payment of an installation charge plus the cost of the wire. While the service representative may have considered that the Company would pull the wire through the conduit for “free,” the tariff clearly provides for a “non-refundable” attachment charge of $30 regardless of who provides the trenching and conduit. Mr. Emerick does acknowledge that he received the trenching brochure. Its prominent title is “Reduced Charge Option for Residential Underground Electrical Service.” Although his focus was on the trenching and conduit specifications contained in the brochure, the brochures does state on the first page that when all the trenching requirements “have been met, Idaho Power will install and terminate the underground cable and meter at a reduced charge.” (Emphasis added).
Despite the miscommunications, we believe that the outcome of this case is controlled by the “filed rate doctrine.” Idaho Code § 61-313 provides that no public utility shall collect or receive a greater or less or different compensation for any service rendered to the public than the charges applicable to such service as specified in its tariffs on file with the Commission and in effect at the time. The United States Supreme Court has described the filed rate doctrine as an obligation on the part of the utility to only collect the rates set out in its tariffs and schedules despite a quoted charge of a lesser or greater amount. In discussing the doctrine as it pertains to a trucking tariff, the Court stated that
[d]eviation from [the filed rates] is not permitted upon any pretext. Shippers and travelers are charged with notice of it and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination.

AT&T v. Central Office Telephone, 524 U.S. 214, 118 S.Ct. 1956, 1963 (1998) citing Louisville and Nashville R.Co. v. Maxwell, 237 U.S. 94, 97 (1915) (emphasis added). Consequently, even if a utility “intentionally misrepresents its rates and a customer relies on the misrepresentation, the [utility] cannot be held to the promised rate if it conflicts with the published tariff.” AT&T v. Central Office, 524 U.S. 214 citing Kansas City Southern R. Co. v. Carl, 227 U.S. 639, 653 (1913).
“While the filed rate doctrine may seem harsh in some circumstances, its strict application is necessary to ‘prevent carriers from intentionally “misquoting” rates to shippers as a means of offering them rebates or discounts, the very evil the filing requirements seeks to prevent.’” AT&T v. Central Office citing Maislin Industries, U.S., Inc. v. Primary Steel, 497 U.S. 116, 127 (1990) (internal citation omitted). Regardless of the utility’s motive or intent in quoting or charging a rate that is greater or lesser than the filed rate, the policy of non-discriminatory rates is violated when similarly situated customers are allowed to pay different rates for the same services. AT&T v. Central Office, 524 U.S. 214, 118 S.Ct. at 1963. Consequently, we are compelled by the filed rate doctrine and Idaho Code § 61-313 to find that Mr. Emerick was billed the appropriate tariff charges for the installation of his underground service and the Company is entitled to collect $254.70.
Notwithstanding our determination that Mr. Emerick is obligated to pay the charges, we direct Idaho Power to advise its customer service representatives of their obligation to correctly inform customers of the proper charges for particular services. We also direct the Staff and the Company to examine the brochure (catalog ID 20676) to determine whether changes should be made to clearly reflect charges for installation and the price for the cable.
While we are confident that the Company’s representative that quoted the installation “for free” did not act with malice, nevertheless, we find this statement was the source of miscommunication between the Company and the customer. To further mitigate the impact on Mr. Emerick, we shall direct the Company to make payment arrangements for the collection of the $254.70 over 12 months without interest.

O R D E R
IT IS HEREBY ORDERED that the complaint of Brian Emerick against Idaho Power Company as more particularly described above be dismissed.
IT IS FURTHER ORDERED that the Company shall make payment arrangements for the collection of the amount in question ($254.70) over a 12-month billing cycle without interest.
IT IS FURTHER ORDERED that the Company take the necessary actions to ensure that its customers receive complete and accurate written information regarding its fees, charges, and procedures with respect to line installations and service attachments. The Company and the Staff are directed to review the brochure and determine whether it should be amended to better reflect the charges for underground service installations.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. IPC-E-00-3 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order or in interlocutory Orders previously issued in this Case No. IPC-E-00-3. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of March 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER
ATTEST:

Myrna J. Walters
Commission Secretary

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For example, this brochure explains that customers or builders who construct their own trenches and install their own conduit are eligible for “reduced charges.” Although the brochure notes that trenches or conduits not meeting the Company’s specifications will be assessed a $50 charge, the brochure does not indicate the exact charge for installation of service or the charge for underground cable.

ORDER NO. 28329 1

Office of the Secretary
Service Date
March 28, 2000