In re Complaint of Wingo v . Nationwide Energy Partners , L . L . C ., Slip Opinion No . 2020-Ohio-5583
Later in December 2020 , the Ohio Supreme Court issued a third decision reversing a PUCO decision – and this time Justice DeWine wrote the Court ’ s opinion , chastising the PUCO for applying “ a jurisdictional test of its own devising ” instead of the test required by the General Assembly . 2020-Ohio- 5583 , at ¶ 2 . As in In re Direct Energy , the issue before the Court was the definition of “ public utility .” This time , the question was whether “ a company that provides submetering services ” – i . e ., a company that buys gas , electric , water or sewer services “ from a public utility and then resell [ s ] those services to ” the residents of an apartment or condominium complex – is a public utility subject to the PUCO ’ s jurisdiction . Id . at ¶¶ 1 , 3 . The complainant , Cynthia Wingo , had filed a complaint against Nationwide Energy Partners ( NEP ), asserting that NEP was providing her water , sewer and electric services without providing her the benefits or protections that a public utility is required to provide . The Commission dismissed the complaint , finding that it lacked jurisdiction because NEP was not a public utility . The PUCO reached that conclusion by applying a jurisdictional test it had developed in another proceeding , under which a submetering company would be considered a public utility if it charged more for utility service than the local public utility would have charged under its default service tariff , unless the submetering company was simply passing through its annual costs to provide that service with no mark-up .
Wingo appealed and challenged the propriety of the PUCO ’ s jurisdictional test . And Justice DeWine , in a majority opinion , agreed with Wingo , holding that the PUCO did not have the authority to “ use … its own jurisdictional test , rather than the applicable statutory language , to determine whether NEP is a public utility … .” Id . at ¶ 7 . DeWine concluded that the PUCO had developed its test by “ making a policy judgment about who it wants to regulate ” – resellers that “ don ’ t charge too much ” ( id . at ¶ 22 ( emphasis omitted )) – rather than interpreting and applying R . C . 4905.03 , the statute that defines the companies within the PUCO ’ s jurisdiction ( e . g ., “ electric light companies ,” “ water-works companies ,” “ sewage disposal system companies ”). “[ D ] efining the parameters of the PUCO ’ s jurisdiction is up to the General Assembly ,” DeWine held , “ Not the PUCO .” Id . at ¶ 24 .
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