Case Background
On March 22,
2021, Mr. Albert Arcuri contacted Duke Energy Florida, LLC (Duke) requesting
information for converting his existing overhead electric service to
underground. Duke provided Mr. Arcuri with a cost of $2,139.59 to complete the
work, which included the trenching, installation of the cable and conduit, and
removing the overhead service. After several conversations with Duke
representatives addressing scheduling the undergrounding project and the
breakdown of the attendant costs, Mr. Arcuri filed Informal Complaint No.
1377736E with the Commission on August 31, 2021. Duke reported that on August
30, 2021, it received a payment of $2,139.59, and the conversion of the
facilities was completed on October 14, 2021.
After requesting
additional information from Duke, staff sent a letter to Mr. Arcuri on October
5, 2021, explaining how the cost to underground was calculated, and staff’s
opinion that the cost was reasonable and accurate, and consistent with Duke’s
Commission-approved tariff.
Mr. Arcuri
expressed his disagreement with staff’s letter, and the matter was referred to
the Commission's Process Review Team (PRT) for review, in accordance with Rule
25-22.032, Florida Administrative Code (F.A.C.). By letter dated January 10,
2022, Commission staff advised Mr. Arcuri that his informal complaint had been
reviewed by PRT, and it appeared that Duke had not violated any applicable
statutes, rules, company tariffs, or Commission orders. Staff advised Mr.
Arcuri that if he disagreed with the complaint conclusion, he could file a
petition for initiation of formal proceedings for relief against Duke.
On January 17,
2021, Mr. Arcuri filed a formal complaint against Duke, stating he was
overcharged for the cost of his underground conversion as opposed to the cost
of a new underground installation. Mr. Arcuri requested that the cost of his
installation be refunded, and that funds be made available to him “to fight
Duke’s illegal activities and [the Commission].”
On March 17,
2022, Duke filed an Amended Motion to Dismiss (Motion) Mr. Arcuri’s formal
complaint. Duke
states that Mr. Arcuri’s complaint fails to explain how Duke violated Rule
25-22.032, F.A.C. (regarding customer complaints), or provide any evidence that
Duke violated any applicable statutes, rules, tariffs, or Commission orders. Duke
contends that Mr. Arcuri has failed to state a cause of action upon which
relief can be granted; therefore, his complaint should be dismissed.
This
recommendation addresses whether Duke’s Motion should be granted (Issue 1) and
the appropriate disposition of Mr. Arcuri’s formal complaint against Duke
(Issue 2). The Commission has jurisdiction over this matter pursuant to Section
366.04, Florida Statutes (F.S.).
Discussion
of Issues
Issue 1:
Should the Commission grant Duke’s Motion to Dismiss
Mr. Arcuri’s formal complaint?
Recommendation:
No, the Commission should deny Duke’s Motion.
(Crawford)
Staff Analysis:
Legal Standard
To sustain a motion to dismiss, the moving party must show
that, accepting all allegations as true, the petition fails to state a cause of
action for which relief may be granted.
The moving party must specify the grounds for the motion to dismiss, and all
material allegations must be construed against the moving party in determining
if the petitioner has stated the necessary allegations. A sufficiency
determination is confined to the petition and documents incorporated therein
and the grounds asserted in the motion to dismiss.
All allegations in the petition must be viewed as true and in the light most
favorable to the petitioner in order to determine whether there is a cause of
action upon which relief may be granted.
Duke’s Motion to Dismiss
Mr. Arcuri’s formal complaint states that Duke has
violated Rule 25-22.032, F.A.C., which addresses the process for handling
customer complaints. Duke correctly points out, however, that Mr. Arcuri fails
to state how Duke is in violation of the rule. Rather, the focus of Mr.
Arcuri’s complaint is his dissatisfaction with the costs incurred for
undergrounding his electric service. Duke states it has been explained to Mr.
Arcuri that Duke’s tariffed charge for replacing an existing overhead lateral
with underground service is $1,762.00. The additional $377.59 was for Duke to
perform the trenching. While Mr. Arcuri believes he shouldn’t be charged more
for the existing service conversion than for a new underground service, it has
been explained to him that more work is involved for a conversion of existing
overhead service. Duke contends that Mr. Arcuri has failed to state a cause of
action upon which relief can be granted; therefore, the Commission should
dismiss Mr. Arcuri’s formal complaint, or in the alternative, deny Mr. Arcuri’s
requested relief.
Analysis and Conclusion
The Commission has previously held pro se litigants such as Mr. Arcuri to a relaxed pleading standard,
in order to prevent delay and promote resolution of litigants’ claims. Staff believes that the petition states a
cause of action – a dispute with respect to Duke’s rates and service – that is within
the Commission’s jurisdiction as provided in Section 366.04(1), F.S. As stated
in Duke’s Motion, the substance of the formal complaint isn’t about Duke’s
compliance with the customer complaint rule, but about Mr. Arcuri’s
disagreement with Duke’s billing of his account for the conversion of his
service from overhead to underground.
The documentation in this docket, including the informal
complaint files, Mr. Arcuri’s formal complaint, and Duke’s Motion to Dismiss
provide significant information about Mr. Arcuri’s factual assertions and
requested relief. Staff believes that these allegations relate to Duke’s rates
and service for Mr. Arcuri’s electric account, and that the facts are
sufficiently developed for the Commission to make a determination on the formal
complaint, as recommended in Issue 2. As
discussed in Issue 2, staff recommends that the Commission lacks the
jurisdiction to award damages or equity relief as requested by Mr. Arcuri.
While staff believes that particular relief would appropriately be subject to
dismissal, Duke did not identify or discuss Mr. Arcuri’s request for equity
relief in its Motion. Staff therefore recommends that Duke’s Motion to Dismiss
should be denied in its entirety.
Issue 2:
What is the appropriate disposition of Mr. Arcuri’s formal
complaint?
Recommendation:
Staff recommends that Mr. Arcuri’s formal complaint
be denied. Mr. Arcuri’s account was properly billed in accordance with Florida
statutes and rules and Duke’s tariffs. Duke did not violate any applicable
statute, rule, company tariff, or order of the Commission in the processing of
Mr. Arcuri’s account. Further, the Commission lacks equity jurisdiction to
award Mr. Arcuri damages. (Crawford)
Staff Analysis:
Pursuant to Rule 25-22.036(2), F.A.C., a complaint
is appropriate when a person complains of an act or omission by a person subject
to Commission jurisdiction that affects the complainant’s substantial interests
and that is in violation of a statute enforced by the Commission, or of any
Commission rule or order. As discussed below, Mr. Arcuri’s petition fails to
show that Duke’s billing of his account for the cost of undergrounding his
electric service violates a statute, rule, order, or applicable provision of
Duke’s Commission-approved tariff. Further, the Commission lacks equity
jurisdiction, so Mr. Arcuri’s request for damages is inappropriate. Therefore,
the Commission should deny Mr. Arcuri’s petition for relief.
Formal Complaint
In his complaint, Mr. Arcuri states that Duke charged him
four times the amount to convert his overhead installation to underground
service, as compared to the cost for undergrounding a new installation. He
states that “the only difference is they have to cut the old power line down.”
Mr. Arcuri requests that the costs for his installation be readjusted and
refunded. He also requests that the Commission “make funds available to fight
Duke’s illegal activities and this board [the Commission] who they control.”
Analysis
Based on all the information provided, Duke’s invoice of
$2,139.59 for the cost to underground an existing residential overhead service
lateral is reasonable and accurate. Duke Tariff Sheet No. 4.115, Section 11.05
establishes the expected contribution for residential customers who wish to
underground an existing residential overhead service lateral as $1,762
(excluding trenching costs). This charge is determined based on the cost to
remove the existing overhead service, the average cost to install underground
service, the remaining undepreciated value of the overhead facilities, and the
salvage value of the overhead facilities.
Mr. Arcuri has stated his dissatisfaction that the utility
is permitted to charge more for the conversion of existing overhead service
than for new underground service. The charge of $641.00 for new underground
service laterals is determined by the difference between the average cost to
install an overhead service lateral and the average cost to install an
underground service lateral. Duke requires customers to pay the additional
costs of undergrounding up front, as the remaining cost for overhead service is
included in residential rates. This charge would not be appropriate in the case
of an underground conversion of an existing overhead service lateral, because
it does not include the cost to remove the existing overhead facilities nor the
remaining undepreciated value of the overhead facilities.
Tariff Sheet No. 4.115, Section 11.05 further requires
that the customer also provide, at no cost to the Company, a suitable trench
and perform the backfilling. If the customer requests the Company to supply the
trench or remove any additional equipment other than the service lateral, the
charge to the customer for this work will be based on a specific cost estimate.
The additional charge of $377.59 for Duke to perform the trenching is
reasonable and similar to other trenching charges.
Pursuant to Rule 25-6.078(3), F.A.C., each utility is
required to file supporting data and analyses at least once every three years
to justify the utility’s differential between underground and overhead
residential distribution costs. The charges listed on Duke Tariff Sheet No.
4.115 were most recently approved by Commission Order No. PSC-2020-0266-TRF-EI,
issued on July 27, 2020, in Docket No. 20200110-EI, In re: Petition for approval of revised underground residential
distribution tariffs, by Duke Energy Florida, Inc.
Based on the information provided by Mr. Arcuri and Duke, staff
recommends that the invoice for $2,139.59 was reasonable for the cost to
replace an existing overhead service lateral with an underground service
lateral.
Conclusion
Staff recommends that Mr. Arcuri’s formal complaint should
be denied. Mr. Arcuri’s account was properly billed in accordance with Florida
statutes and rules and Duke’s tariffs. Duke did not violate any applicable
statute, rule, company tariff, or order of the Commission in the processing of
Mr. Arcuri’s account. To the extent that Mr. Arcuri is requesting damages or
similar equitable relief, the Commission has previously stated that it has no
jurisdiction to make such an award; therefore, this portion of the complaint
should also be denied.
Issue 3:
Should this docket be closed?
Recommendation:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, this docket should be closed upon the issuance of a
consummating order. (Crawford)
Staff Analysis:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, this docket should be closed upon the issuance of a
consummating order.
