Case Background
Section 366.03,
Florida Statutes (F.S.), states that each public utility shall furnish to each
person applying for service, reasonably sufficient, adequate, and efficient
service. The Commission has jurisdiction
as set forth in Section 366.04, F.S., to regulate and supervise each public
utility with respect to its rates and service.
Rule 25-22.032,
Florida Administrative Code (F.A.C.), implements Chapter 366, F.S., and
establishes informal customer complaint procedures that are designed to address
disputes, subject to the Commission’s jurisdiction, that occur between
regulated companies and individual customers.
Pursuant to this rule, any customer of a Commission regulated company
may file a complaint with the Commission’s Office of Consumer Assistance and
Outreach whenever the customer has an unresolved dispute with the company
regarding electric, gas, telephone, water, or wastewater service.
In
October of 2017, Terry Avera filed informal complaint no. 1256510E with
the Commission against Florida Power & Light Company (FPL). In his informal complaint, Mr. Avera stated
that FPL had wrongfully accused him of meter tampering and improperly and
excessively backbilled his account for unrecorded electric usage.
On
April 12, 2018, staff advised Mr. Avera, through his attorney Frank L.
Hollander, that his informal complaint and FPL’s backbilling calculations had
been reviewed and that staff had determined that Mr. Avera’s account was fairly
and reasonably backbilled. Staff also
advised Mr. Avera that, based on staff’s investigation, FPL did not appear to violate
any statute, rule, its company tariff, or orders in the investigation of meter
tampering or in the backbilling of electricity used by Mr. Avera for which he
did not pay due to unauthorized conditions.
Staff advised Mr. Hollander that Mr. Avera had an opportunity to file a
petition for formal proceedings.
On
April 30, 2018, Mr. Avera, through his attorney Mr. Hollander, filed a petition
for initiation of formal proceedings pursuant to Rule 25-22.036, F.A.C. In the formal complaint, Mr. Avera claims
that FPL after an inspection of Mr. Avera’s property, “falsely claimed the
inspection revealed illegal meter tampering with FPL’s equipment (smart meter)
and that the tampering caused the meter to improperly under-register the
electricity that the location was utilizing” and as a consequence, was “immediately
disconnected service and back-billed...for 5 years, $10,205.55, plus investigation
fees and a tamper penalty.” Mr. Avera claims that due to his sleep
apnea condition,
[he] was constructively removed from his
home in order for he [sic] and his family to obtain electricity elsewhere as necessitated
to prevent Avera from dying of sleep apnea without the use of needed
electricity-generated machinery and death by that machinery, forming deadly
bacteria, only eliminated through employment of electricity denied Avera as
constitutional rights, to life, property and the pursuit of happiness, as
deprived by FPL as a monopolistic state agent.
Mr.
Avera seeks for the Commission to find that no tampering occurred with the
meter, to order FPL to restore service to his property, and to award damages in
excess of $14 million.
This
recommendation addresses the appropriate disposition of Mr. Avera’s complaint
against FPL. The Commission has jurisdiction over this matter pursuant to Sections
366.04, F.S. The Commission does not
have jurisdiction to consider claims for damages.
Discussion
of Issues
Issue 1:
What is the appropriate disposition of Mr. Avera’s
formal complaint?
Recommendation:
The appropriate disposition
of Mr. Avera’s formal complaint is to deny the complaint. Mr. Avera’s account
was properly billed in accordance with Commission statutes and rules and FPL’s
tariffs, in the amount of $11,638.09.
FPL did not violate any applicable statute, rule, company tariff or
order of the Commission in the processing of Mr. Avera’s account. In addition,
the Commission lacks the subject matter jurisdiction to award money
damages. Thus, the Commission cannot
rule on Mr. Avera’s claim for monetary damages. (Schrader)
Staff Analysis:
Mr. Avera alleges
that FPL unjustly backbilled him, and improperly disconnected his service for
non-payment of such backbilling, for meter tampering. He also alleges monetary
damages from FPL’s unjust disconnection of his electric service. These allegations are discussed below.
Meter Tampering
On September 2, 2003, FPL established an account for Mr.
Avera at his residence. On April 14, 2017, an analytical test of the
communication from meter ACD5693, which was originally installed at Mr. Avera’s
residence on May 18, 2010, revealed an isolated outage for approximately 9
minutes and 15 seconds on September 20, 2011.
The analytical test showed that Mr. Avera’s residence experienced a loss of
power, while no other premises served by the same transformer experienced an
outage. This isolated outage was followed by a significant reduction in metered
average daily kWh (kilowatt-hour) consumption (see graph 1.1 provided by FPL).
After replacement of the meter on April 26, 2017, metered consumption
significantly increased at Mr. Avera’s residence.
Graph 1.1
Average Metered Daily kWh Consumption at Mr. Avera’s Residence
On April 26, 2017, an FPL meter electrician visited Mr.
Avera’s residence and documented that the outer meter enclosure seal was
missing, the inner meter seal was intact, there was a wire which the electrician
initially coded as an unauthorized lineside tap,
and that a plastic disconnect (DM) boot was
on the meter.
FPL removed meter
ACD5693 and installed a new meter, ACD5262. According to FPL, the electrician
subsequently sent the DM boot, piece of wire, and meter ACD5693 to FPL’s Meter
Technology Center. However, the meter electrician failed to take any
photographs of meter ACD5693 in an unauthorized condition in the field.
FPL did, however, provide a photo of the removed meter, along with the wire, to
Commission staff (see Attachment B to this recommendation). However, by letter
filed July 17, 2018, Mr. Avera’s counsel contended that the affidavit photo was
not taken at the time and in the manner attested to by FPL.
Mr. Avera contends that, upon the arrival of the meter
electrician on April 26, 2017, the outer meter enclosure seal was, in fact,
intact and had to be cut open by the electrician. Mr. Avera also states that
the electrician made no mention of a lineside tap, and if the electrician had
witnessed such a condition, then law enforcement would have been called to file
a report. Mr.
Avera also states that “it was FPL who inserted the DM boot when the meter was
rented by the prior owner years earlier. The DM disconnect boot was inherited.”
Backbilling
Section 366.03, F.S., provides that all rates and charges
made or received by any public utility for service rendered by it and each rule
and regulation of such public utility must be fair and reasonable. Rule
25-6.104, F.A.C., authorizes electric utilities to backbill the customer for a
reasonable estimate of the electricity consumed, but not metered, due to meter
tampering or fraudulent use.
FPL’s tariff sets forth its fees, services, and policies as
approved by the Commission. FPL’s Fourth Revised Tariff Sheet No. 6.061,
Section 8.3, Tampering with Meters, states:
Title to meters and
metering equipment shall be and remain in the Company. Unauthorized connections
to, or tampering with the Company's meter or meters, or meter seals, or indications
or evidence thereof, subjects the Customer to immediate discontinuance of
service, prosecution under the laws of Florida, adjustment of prior bills for
services rendered, a tampering penalty of $200 for residential and non-demand
commercial customers and $1,000 for all other customers, and reimbursement to
the Company for all extra expenses incurred on this account..
On June 15, 2017, FPL tested meter ACD5693 with the DM
boot present, but without the provided piece of wire, per FPL’s code “96”
protocol for a lineside tap. FPL states that its test board does not recognize
a meter with a single boot, since the test board only sees the 120 volts from
one side of the meter and needs 240 volts to properly test a meter, which the
plastic DM boot prevented. Because of this, the meter test results defaulted to
zero.
The backbilling was calculated by FPL using the kWh use
from the new meter and the Seasonal Average methodology. FPL used “the
actual usage recorded by the meter for the partial month of May 2017, after the
condition was corrected on April 26, 2017, and actual usage for the months of
June and July 2017, as data points, to calculate the Average of Total Yearly
kWh.”
FPL further stated that “the average yearly total of kWh by the specific monthly
seasonal average percentage of usage to determine the estimated usage for each month
in the year. The original billed kWh is subtracted from the estimated monthly
kWh, leaving the additional billed kWh.”
Attachment A to this recommendation shows FPL’s calculations used to backbill
Mr. Avera’s account. Given that Mr. Avera established service in 2003, that
meter ACD5693 was installed at his residence in 2010, and that the isolated
outage and drop in metered consumption occurred in September of 2011, FPL
classified the unauthorized meter condition as non-inherited.
On August 28, 2017, FPL backbilled Mr. Avera for
$10,746.21, which included investigative charges of $540.66, using this
seasonal average methodology. FPL also added a tampering penalty of $200.00, as
authorized by its tariff. When payment was not timely made, FPL disconnected
electric service to Mr. Avera’s residence on August 31, 2017, having provided
notice pursuant to Rule 25-6.105, F.A.C. Upon subsequent discussion with Mr.
Avera, FPL offered to reconnect service for an initial payment of $8,200 and
establish a payment arrangement for the remaining backbill balance.
Mr. Avera later contacted FPL and requested to establish
service in another family member’s name. Then, on September 5, 2017, Mr. Avera
contacted FPL requesting service to be reconnected after an initial payment of
$600; however, FPL indicated to him that it still required an initial payment
of $8,200. That same day, Mr. Avera requested via FPL’s website to close the
account. On September 6, 2017, a refusal of service letter was mailed to Mr.
Avera’s relative as that relative’s driver’s license was registered to Mr.
Avera’s address during the time that Mr. Avera incurred the debt with FPL.
On September 15, 2017, with no payment
received from Mr. Avera or an authorization to reconnect the service, FPL
closed Mr. Avera’s account effective to August 31, 2017. FPL issued a final
bill statement to Mr. Avera for $11,638.09, which consisted of current charges
of $240.94, backbilling charges of $10,946.21, and past due balance of $450.94.
On October 2, 2017, Mr. Avera contacted
Commission staff, contending that a judge had ordered that all charges be
dismissed and requested service be reconnected as soon as possible; his call
was subsequently warm transferred to FPL. On October 3, 2017, Mr. Avera
contacted the Commission and stated that he had faxed the court documents to
FPL but service was not reconnected; he was again warm transferred to FPL. FPL
stated that he was told that FPL’s attorney reviewed the faxed documents and the
attorney confirmed that Mr. Avera’s complaint was dismissed, not the backbill
charges, and that the judge referred Mr. Avera to the Commission, which would
have the proper jurisdiction over his complaint. Commission staff confirmed
that this case was dismissed; however, the matter is
pending appeal in the Circuit Court Appellate Division of the Eleventh Judicial
Circuit for Miami–Dade County.
Since the filing of Mr. Avera’s informal complaint,
FPL has offered additional payment arrangements to Mr. Avera. FPL’s most recent
proposal, on October 17, 2017, was an initial payment from Mr. Avera of $2,000,
a payment of $691.88 for the final bill balance, and the establishment of a new
account in his name with payment of a deposit required before service can be
reconnected. Mr. Avera declined this and stated that he had obtained legal
representation and that he found many examples online where FPL had removed all
charges. Given this, he stated that his attorney would petition the Commission
to require all charges be removed and his service reconnected.
Subsequent Meter Tests
On November 7, 2017, after further inspection
of the evidence, FPL determined that the meter electrician “incorrectly
populated the ticket with an unauthorized condition code of “96,” denoting that
a lineside tap was present” and that the meter electrician confused a jumper
for a lineside tap.” FPL stated that the condition
should have been documented with code “63” that would indicate that a single
jumper was present with the DM boot. While a lineside tap and a jumper are
similar methods of diversion, each requires a different testing protocol. FPL
subsequently retested Meter ACD5693 with the proper protocol for a jumper (i.e.
code “63”), with the unauthorized jumper and DM boot in place, and the meter registered
a weighted average (WA) of 49.91 percent. The “as left” test (i.e., with the
meter repaired to remove the unauthorized condition) registered a WA of 99.89
percent. Given this result, FPL considered adjusting the backbill by using the
test results of 49.91 percent; however, the revised billing would have resulted
in an additional 13,489 kWh of usage being billed to Mr. Avera over what he had
been billed based on a seasonal average methodology.
Mr. Avera states that at the November 7, 2017
testing the locked box containing the meter did not contain any kind of wire
that would have been used for a lineside tap or jumper. He also states that
the test of a jumper conducted at this time was merely “recreated” and did not
use any piece of wire obtained in the field from Mr. Avera’s residence.
On February 26, 2018, FPL and Commission
staff conducted witnessed meter tests of meters ACD5693 and ACD5262. With the
DM boot in place as found, according to the meter electrician, FPL’s meter test
revealed that meter ACD5693 was registering WA 0.00 percent. Commission
staff was unable to test with boot in place due to limitations of the
Commission testing equipment. Performing such a test would have damaged the
Commission testing equipment. Without the tampering
condition in place, meter ACD5693 registered WA 99.88 percent upon testing by
FPL, and 99.92 percent upon testing by Commission staff. Meter ACD5262
registered WA 100.00 percent upon testing by FPL, and 99.97 percent upon
testing by Commission staff.
Staff believes that FPL should
have better documented the condition of meter ACD 5693 in the field at Mr.
Avera’s residence and that FPL did make an initial error in coding the meter’s
unauthorized condition in the field. However,
Mr. Avera’s consumption history (see graph 1.1 above and Appendix A attached to
this recommendation), along with the preponderance of evidence including the
Commission staff-witnessed tests of meters ACD5693 and ACD5262, demonstrates that
Mr. Avera benefited from unauthorized conditions at his meter by paying less
for electricity than he would have with a properly working meter without a
jumper. Staff believes that Mr. Avera is responsible for payment of a
reasonable estimate of the electricity used, but not originally billed, and
that FPL may also recover the costs of its investigation of the meter
tampering.
Staff reviewed FPL’s backbilling
calculations and determined that Mr. Avera’s account was fairly and reasonably
backbilled. Staff believes that FPL has
violated no statute, rule, company tariff, or orders in the investigation of
meter tampering or in the backbilling of electricity used by Mr. Avera for
which he did not pay due to unauthorized conditions.
Claim for Damages
The Commission lacks the subject
matter jurisdiction to award monetary damages. Thus, the Commission cannot rule
on Mr. Avera’s claim for monetary damages. To seek such relief he must file
such a claim in a court of appropriate jurisdiction.
Conclusion
The appropriate disposition of
Mr. Avera’s formal complaint is to deny the complaint. Mr. Avera’s account was
properly billed in accordance with Commission statutes, rules, orders, and
FPL’s tariffs, in the amount of $11,638.09 (consisting of current charges of $240.94, backbilling
charges of $10,946.21, and past due balance of $450.94). FPL did not
violate any applicable statute, rule, company tariff or order of the Commission
in the handling of Mr. Avera’s account. In addition, the Commission lacks the
subject matter jurisdiction to award monetary damages. Thus, the Commission
cannot rule on Mr. Avera’s claim for monetary damages.
