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MISSISSIPPI

OF

7, 2018

Philip Gunn

of Representatives

Mississippi House

1018

Box

Mississippi 39215

Mississippi House of Representatives

1018

Box

Mississippi 39215

Public Service

Mississippi

I write to bring to your attention concerns about the

currently pending before

2295,

bill,

(MPSC) reauthorization

Commission’s

Code Annotated

Public Utilities Committee.

2295,

19 and 24 of Senate

77-1 -43 and 77-3-5 contained

in

utilities operating

will likely be interpreted by unscrupulous

legal protections for

to have removed many crifical

within the State of Mississippi

strongly believe that this would be an

I

While

and the State of Mississippi.

skirt

entities desiring to

of the amendments,

incorrect and unconstitutional interpretation

to use these

law and harm ratepayers and the State will undoubtably

try

a billion

to dismiss

Entergy would

try

to use

For example,

November,

in

is

which

litigating since 2008,

dollar case we have been

882, which reauthorizes the

2018.

I

to code sections 77-1-43

MPSC without these confusing changes

bill or at

up this

respectfully request that you not bring

by amendment in the Senate Committee.

STATE

February

Honorable

Speaker of the House

Post Office

Jackson,

Honorable Greg

Snowden

Speaker Pro Tempore

Post Office

Jackson,

Gentlemen:

the House

sections

adopted as currently drafted,

ratepayers

the

amendments to delay.

Since the House has already

language nefariously inserted

JIM

HOOD

AHORNEY

GENERAL

Senate

Bill

The amendments to Mississippi

sections

passed House

Bill

Bill

it

set for trial

and 77-3-5,

least delete the poison

pill

if

Unscrupulous entities will argue that Senate Bill 2295 removes currently existing

legal protections for ratepayers.

WALTER SILCERS

BUILDING

TELEPHONE

POST OFFICE BOX 220

JACKSON,

MISSISSIPPI

(601)

359-3680

TELEFAX

(601)

359-3441

39205-0220

Philip Gunn

Honorable

Honorable Greg

2018

7,

2

882, the MPSC has the important

law, and as reenacted

in

Under our current

this process can be

As you are aware,

of establishing reasonable rates for utilities.

role

Kemper

the recent issues regarding the

in

complicated and controversial,

of the

utilities must abide by the rules and regulations

law,

Under current

County plant.

utility is

However, just like any other business or person operating

a

MPSC.

utility’s conduct violates any state law

also held accountable

in state court

Mississippi Consumer

unfair and deceptive trade practices,

regarding fraud,

civil statutes, or common law doctrines.

Act, other criminal or

Protection

for Medicaid

of Medicaid establishes reimbursement

Division

Mississippi

and beneficiaries are held accountable

providers, those providers

Division

Division or Consumer Protection

a

Medicaid Fraud

Attorney General’s

utilities, just as

Likewise,

law.

of state

provisions

provider or beneficiary violates other

our courts for acts which violate

our

in

any other business

or person,

harm Mississippians.

laws and

for ratepayers

scrutiny,

by

all of the other provisions of state law

will argue that Senate Bill 2295 takes away

touching on

to decide any matter even remotely

giving only the MPSC the “jurisdiction”

not a court;

of the “legal theory.” However, the MPSC

is

utility rates, regardless

of Mississippi

civil laws of the State. The citizens

criminal and

not enforce the general

of the Mississippi Consumer Protection Act, state

for violations

could lose vital remedies

original jurisdiction

law,

criminal laws and common

or the accuracy or reliability

over any complaint that touches upon rates,

original

in any way, falls within the exclusive

of information submitted to the MPSC,

afford the State’s

of the MPSC. The MPSC does not possess

jurisdiction

For example, the MPSC does

citizens many of the remedies that the courts can award.

Nor does the

or penalties.

to award damages, treble damages,

not have the power

law, the Attorney

Under current

to grant injunctive relief.

MPSC have the authority

relief for violations of Section 75-

authority to seek injunctive

civil

is solely authorized to seek

on

Similarly, the Attorney General

24-5(1).

of Section 75-24-5(1). The MPSC likewise cannot

and 24 of

19

in

activity. Yet,

will

Mississippi

or the

bills,

including criminal activity, that is even remotely related to rates,

of information submitted to the MPSC can only be addressed by

award.

lacks the power to award remedies

which

882,

in

law and as reenacted

Further,

to the

and complete information

truthful,

to provide accurate,

11 and -13 require utilities

of the charges for power on their

and sources

quality,

including the true nature,

MPSC,

prohibits the Attorney General from

Utilities will

electric bills.

a utility knowingly submits inaccurate,

enforcing these provisions in

February

Page

Snowden

Those who

seek less

antitrust laws,

as seen

if

the

House

are answerable

less transparency,

Bill

the

rates

in

in

the State,

Just as the

state court by the

if

and fewer protections

it

does

because exclusive

customer bills,

the power to

General has the singular

behalf of the state for violations

sentence anyone for criminal

Senate Bill 2295 pass,

if the

in

unscrupulous utilities

accuracy or reliability

the MPSC,

under the current

amendments

penalties

Sections

argue that any activity,

customer

that courts can

House

Bill

Code Sections 97-7-

argue that Senate Bill 2295

State court even

if

Philip Gunn

Snowden

7, 2018

3

and even

to the MPSC,

or incomplete information

untruthful,

utility’s customers.

MPSC and the

Therefore, the

utility” includes landline telephone companies.

of “public

definition

(incorrectly) argued to restrict the Attorney General from addressing

could be

billing practices, such as the practice of

to the

anything related

bill or the failure to provide promised rebates and

into the

“cramming” unapptoved items

limit the Attorney General’s authority

offers, It could also be argued to

by telephone companies to the MPSC on any matter

to address representations made

on robocall blocking and the Attorney General’s

including but not limited to their efforts

authority to make sure they adhere to such statements.

should be interpreted

will

In sum, unscrupulous utilities

and

district attorneys,

of Mississippi courts, the Attorney General,

to strip the authority

civil laws

criminal and

Mississippi

of information

or the accuracy or reliability

interpretation,

While this would be an incorrect

to the MPSC.

risk such a frightful outcome. The MPSC

why the Legislature would want to

and

civil

not enforce the general

but the MPSC does

a very important role to play,

of the State.

laws

criminal

by unscrupulous utilities prevails,

Still further, if the anticipated interpretation

of Mississippi would lose the protections inherent

not argue this

will

Constitution. Although they likely

of the amendments

utilities’

openly,

including

conduct,

utilities’

of subject matter jurisdiction over

will be to strip the courts

by the

of their conduct is subject to regulation

simply because

criminal conduct,

to provide redress to

of Mississippi are constitutionally empowered

MPSC.

Act,

including the Consumer Protection

of law,

violations

is

to

law, which redress the MPSC

criminal laws and common

of the amendments

utilities’ foreseeable interpretation

provide. Yet the unscrupulous

all conduct of utilities, that even remotely touches

will be that such amendments place

of information submitted to the

or the accuracy or reliability

upon rates,

Such a result would

of the MPSC.

within the exclusive original jurisdiction

MPSC,

on the subject matter jurisdiction

of powers

of this

of the courts

would

likely to be made by the utilities

additional adverse effect of the interpretation

An

right to obtain relief from

be to complicate the State’s citizens’

Honorable

Honorable Greg

February

Page

defrauded the

The

language

other promotional

telephone companies’

if

such

submission

argue that these amendments

other officials from enforcing

tangentially involves rates,

submitted

any reason

has

customer bills,

if

the conduct

I

cannot see

The constitutional separation of powers, as well as the jurisdiction of the state

courts, would be impaired.

the citizens

powers

clause of the Mississippi

the effect of the

The courts

the State’s citizens for

antitrust laws,

customer bills,

trample the separation

State.

advanced

in

the separation of

expected incorrect interpretation

some

clause by impinging

state

powerless

out-of-state defendants.

Honorable

Honorable Greg

February

Philip Gunn

7,

Snowden

2018

Page 4

The courts

of this State possess personal jurisdiction over non-residents,

met.

Unscrupulous

such

utilities

if

certain

legal

requirements are

will almost certainlyargue that any non

resident whose conduct affects

utilities’ rates or conduct regulated by the MPSC

-

even

in an extremely remote manner

- is not subject to the State court’s personal

customer bills,

jurisdiction since any complaint that touches upon rates,

or reliability of information submitted to the MPSC,

or the accuracy

in any way, falls within the exclusive

original jurisdiction

of the MPSC.

The amendments

likely constitute a prohibited ex post facto

Mississippi

Constitution.

law that violates the

The amendments,

a violation

intended

as interpreted by unscrupulous

Section 24

of Senate

utilities,

Bill 2295

will most probably constitute

states that its

amendment is

“No person shall

of

“Ex

of due process.

“for purposes of clarification of the existing scope of said exclusive original

If these amendments were improperly interpreted to apply to existing

Miss.

Const Art.

3,

§

14 states,

jurisdiction.”

lawsuits,

be deprived

it would be unconstitutional.

of life,

liberty or property except by due process of law.” The rights

citizens who are parties to currently-pending

should

lawsuits would be severely impaired

Such an incorrect interpretation

Clause.

Miss.

Const.

Art.

3,

such an interpretation be accepted.

will also

likely violate the Impairment of Contracts

post facto laws,

rights

§16 provides,

or laws impairing the obligation of contracts,

if

shall not be passed.” The

of ratepayers under the Regulatory Compact,

the subject of a currently-pending

lawsuit,

would be unconstitutionally squashed by the amendments to code sections 77-

1-43

and 77-3-5,

as

currently drafted.

The amendments would also hamper the MPSC’s ability to seek relief from courts

and create unnecessary litigation about whether litigation can be filed.

Section

19

of Senate

Bill 2295

appears to requite the MPSC to give “notice,”

conduct a

“hearing,”

MPSC

and enter an

“order” before the MPSC could file a lawsuit or before the

lawyers with the Attorney General to

file suit.

could even request its

A hearing

about whether to file a lawsuit would both delay

the lawbreaker to attempt to require the PSC to disclose

any litigation and would be a vehicle for

its legal

strategy,

legal

Potential

such a hearing

research,

attorney work product,

or attorney client communication.

lawbreakers would

seek to delay any lawsuit

by raising objections during

and by trying to

appeal

any order authorizing

a lawsuit to be filed.

Instead,

under

current law, whether the MPSC believes

a lawsuit should be filed to enforce the law is a

decision properly made

of a public hearing.

agency)

should

in

confidential consultation with its

legal counsel

and not as part

A utility or person who may be

sued by the MPSC

ability to

(or by any

not be able to frustrate and delay an agency’s

a notice

seek judicial

relief by first demanding

and hearing about whether the agency may file the

MPSC needed to act quickly

to secure an

utilities or to inspect

excavation near underground

injunction to prohibit unauthorized

offending party could attempt to delay any suit for an emergency

pipelines,

an

an order

a hearing,

injunction for months while the MPSC gives notice, conducts

suit.

an appeal of the order authorizing

and defends

suit,

authorizing

a whole new lawsuit about whether the

protecting the public, the amendment creates

interpretation,

While this would be an incorrect

litigation should be filed.

would want to create such confusion.

of Senate

24

and

19

of these concerns regarding Sections

conclusion, because

strike-all amendment to

bill or

up the

respectfully urge you to not take

2295,

I

882 which you previously passed

of House

and insert the language

to Code Sections

MPSC without these confusing changes

and 77-3-5.

77-1 -43

Sjerely you s

jneY General

Mississippi House of Representatives

cc:

Honorable

Philip Gunn

Honorable

Greg Snowden

7, 2018

February

Page

5

Even in those instances when the

suit.

gas

any reason why the Legislature

In

Senate Bill 2295

and which reauthorizes the

adopt a

Bill

issues

Rather than

I cannot see

Bill