STATE OF MISSISSIPPI

JIM HOOD
AHORNEY GENERAL

February 7, 2018

Honorable Philip Gunn

Speaker of the House
Mississippi House of Representatives
Post Office Box 1018
Jackson, Mississippi 39215

Honorable Greg Snowden

Speaker Pro Tempore
Mississippi House of Representatives
Post Office Box 1018
Jackson, Mississippi 39215

Gentlemen:
e
I write to bring to your attention concerns about the Mississippi Public Servic
curren tly pendin g before
Commission’s (MPSC) reauthorization bill, Senate Bill 2295,
Annot ated
the House Public Utilities Committee. The amendments to Mississippi Code
if
sections 77-1 -43 and 77-3-5 contained in sections 19 and 24 of Senate Bill 2295,
utilitie s operati ng
adopted as currently drafted, will likely be interpreted by unscrupulous
for
within the State of Mississippi to have removed many crifical legal protections
this would be an
ratepayers and the State of Mississippi. While I strongly believe that
g to skirt
incorrect and unconstitutional interpretation of the amendments, entities desirin
the law and harm ratepayers and the State will undoubtably try to use these
billion
amendments to delay. For example, Entergy would try to use it to dismiss a
set for trial in Novem ber,
dollar case we have been litigating since 2008, which is
the
2018. Since the House has already passed House Bill 882, which reauthorizes
, I
MPSC without these confusing changes to code sections 77-1-43 and 77-3-5
poison pill
respectfully request that you not bring up this bill or at least delete the
language nefariously inserted by amendment in the Senate Committee.
existing
Unscrupulous entities will argue that Senate Bill 2295 removes currently
legal protections for ratepayers.

WALTER SILCERS BUILDING POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220
TELEPHONE (601) 359-3680 • TELEFAX (601) 359-3441
Honorable Philip Gunn
Honorable Greg Snowden
February 7, 2018
Page 2
ant
Under our current law, and as reenacted in House Bill 882, the MPSC has the import
s can be
role of establishing reasonable rates for utilities. As you are aware, this proces
r
complicated and controversial, as seen in the recent issues regarding the Kempe
and regulat ions of the
County plant. Under current law, utilities must abide by the rules
is
MPSC. However, just like any other business or person operating in the State, a utility
also held accountable in state court if the utility’s conduct violates any state law
regarding fraud, unfair and deceptive trade practices, the Mississippi Consumer
the
Protection Act, other criminal or civil statutes, or common law doctrines. Just as
Mississippi Division of Medicaid establishes reimbursement rates for Medic aid
by the
providers, those providers and beneficiaries are held accountable in state court
tion Divisio n if a
Attorney General’s Medicaid Fraud Division or Consumer Protec
as
provider or beneficiary violates other provisions of state law. Likewise, utilities, just
for acts which violate our
any other business or person, are answerable in our courts
laws and harm Mississippians.
ers
Those who seek less scrutiny, less transparency, and fewer protections for ratepay
law by
will argue that Senate Bill 2295 takes away all of the other provisions of state
remote ly touchi ng on
giving only the MPSC the “jurisdiction” to decide any matter even
it does
utility rates, regardless of the “legal theory.” However, the MPSC is not a court;
The citizen s of Missis sippi
not enforce the general criminal and civil laws of the State.
Act, state
could lose vital remedies for violations of the Mississippi Consumer Protection
ction
antitrust laws, criminal laws and common law, because exclusive original jurisdi
cy or reliabi lity
over any complaint that touches upon rates, customer bills, or the accura
l
of information submitted to the MPSC, in any way, falls within the exclusive origina
to afford the State’s
jurisdiction of the MPSC. The MPSC does not possess the power
does
citizens many of the remedies that the courts can award. For example, the MPSC
or penalti es. Nor does the
not have the power to award damages, treble damages,
ey
MPSC have the authority to grant injunctive relief. Under current law, the Attorn
75-
General has the singular authority to seek injunctive relief for violations of Section
penalti es on
24-5(1). Similarly, the Attorney General is solely authorized to seek civil
behalf of the state for violations of Section 75-24-5(1). The MPSC likewise cannot
24 of
sentence anyone for criminal activity. Yet, if the amendments in Sections 19 and
activity,
Senate Bill 2295 pass, unscrupulous utilities in Mississippi will argue that any
including criminal activity, that is even remotely related to rates, custom er bills, or the
sed by
accuracy or reliability of information submitted to the MPSC can only be addres
the MPSC, which lacks the power to award remedies that courts can award.

s 97-7-
Further, under the current law and as reenacted in House Bill 882, Code Section
inform ation to the
11 and -13 require utilities to provide accurate, truthful, and complete
on their
MPSC, including the true nature, quality, and sources of the charges for power
Attorn ey Genera l from
electric bills. Utilities will argue that Senate Bill 2295 prohibits the
rate,
enforcing these provisions in State court even if a utility knowingly submits inaccu
Honorable Philip Gunn
Honorable Greg Snowden
February 7, 2018
Page 3
sion
untruthful, or incomplete information to the MPSC, and even if such submis
defrauded the MPSC and the utility’s customers.
ore, the
The definition of “public utility” includes landline telephone companies. Theref
addressing
language could be (incorrectly) argued to restrict the Attorney General from
practice of
anything related to the telephone companies’ billing practices, such as the
and
“cramming” unapptoved items into the bill or the failure to provide promised rebates
l’s authority
other promotional offers, It could also be argued to limit the Attorney Genera
on any matter
to address representations made by telephone companies to the MPSC
General’s
including but not limited to their efforts on robocall blocking and the Attorney
authority to make sure they adhere to such statements.
eted
In sum, unscrupulous utilities will argue that these amendments should be interpr
ys, and
to strip the authority of Mississippi courts, the Attorney General, district attorne
other officials from enforcing Mississippi criminal and civil laws if the conduct
information
tangentially involves rates, customer bills, or the accuracy or reliability of
see
submitted to the MPSC. While this would be an incorrect interpretation, I cannot
ul outcom e. The MPSC
any reason why the Legislature would want to risk such a frightf
l civil and
has a very important role to play, but the MPSC does not enforce the genera
criminal laws of the State.
of the state
The constitutional separation of powers, as well as the jurisdiction
courts, would be impaired.
prevails,
Still further, if the anticipated interpretation advanced by unscrupulous utilities
of
the citizens of Mississippi would lose the protections inherent in the separation
will not argue this
powers clause of the Mississippi Constitution. Although they likely
ments
openly, the effect of the utilities’ expected incorrect interpretation of the amend
s’ conduc t, includi ng
will be to strip the courts of subject matter jurisdiction over utilitie
ion by the
criminal conduct, simply because some of their conduct is subject to regulat
to
MPSC. The courts of Mississippi are constitutionally empowered to provide redress
Act, state
the State’s citizens for violations of law, including the Consumer Protection
powerless to
antitrust laws, criminal laws and common law, which redress the MPSC is
amend ments
provide. Yet the unscrupulous utilities’ foreseeable interpretation of the
ly touches
will be that such amendments place all conduct of utilities, that even remote
upon rates, customer bills, or the accuracy or reliability of inform ation submit ted to the
MPSC, within the exclusive original jurisdiction of the MPSC. Such a result would
jurisdiction
trample the separation of powers clause by impinging on the subject matter
of the courts of this State.
utilities would
An additional adverse effect of the interpretation likely to be made by the
ants.
be to complicate the State’s citizens’ right to obtain relief from out-of-state defend
Honorable Philip Gunn
Honorable Greg Snowden
February 7, 2018
Page 4

The courts of this State possess personal jurisdiction over non-residents, if certain legal
requirements are met. Unscrupulous utilities will almost certainlyargue that any non
resident whose conduct affects such utilities’ rates or conduct regulated by the MPSC -

even in an extremely remote manner is not subject to the State court’s personal
-

jurisdiction since any complaint that touches upon rates, customer bills, or the accuracy
or reliability of information submitted to the MPSC, in any way, falls within the exclusive
original jurisdiction of the MPSC.

The amendments likely constitute a prohibited ex post facto law that violates the
Mississippi Constitution.

The amendments, as interpreted by unscrupulous utilities, will most probably constitute

a violation of due process. Section 24 of Senate Bill 2295 states that its amendment is
intended “for purposes of clarification of the existing scope of said exclusive original
jurisdiction.” If these amendments were improperly interpreted to apply to existing
lawsuits, it would be unconstitutional. Miss. Const Art. 3, § 14 states, “No person shall
be deprived of life, liberty or property except by due process of law.” The rights of
citizens who are parties to currently-pending lawsuits would be severely impaired
should such an interpretation be accepted. Such an incorrect interpretation will also
likely violate the Impairment of Contracts Clause. Miss. Const. Art. 3, §16 provides, “Ex
post facto laws, or laws impairing the obligation of contracts, shall not be passed.” The
rights of ratepayers under the Regulatory Compact, if 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,” and enter an “order” before the MPSC could file a lawsuit or before the
MPSC could even request its lawyers with the Attorney General to file suit. A hearing
about whether to file a lawsuit would both delay any litigation and would be a vehicle for
the lawbreaker to attempt to require the PSC to disclose its legal strategy, legal
research, attorney work product, or attorney client communication. Potential
lawbreakers would seek to delay any lawsuit by raising objections during such a hearing
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 in confidential consultation with its legal counsel and not as part
of a public hearing. A utility or person who may be sued by the MPSC (or by any
agency) should not be able to frustrate and delay an agency’s ability to seek judicial
relief by first demanding a notice and hearing about whether the agency may file the
Honorable Philip Gunn
Honorable Greg Snowden
February 7, 2018
Page 5

suit. Even in those instances when the MPSC needed to act quickly to secure an
t
injunction to prohibit unauthorized excavation near underground utilities or to inspec
gas pipelines, an offending party could attempt to delay any suit for an emergency
order
injunction for months while the MPSC gives notice, conducts a hearing, issues an
authorizing suit, and defends an appeal of the order authorizing suit. Rather than
r the
protecting the public, the amendment creates a whole new lawsuit about whethe
etation , I cannot see
litigation should be filed. While this would be an incorrect interpr
any reason why the Legislature would want to create such confusion.
Bill
In conclusion, because of these concerns regarding Sections 19 and 24 of Senate
ment to
2295, I respectfully urge you to not take up the bill or adopt a strike-all amend
usly passed
Senate Bill 2295 and insert the language of House Bill 882 which you previo
ns
and which reauthorizes the MPSC without these confusing changes to Code Sectio
77-1 -43 and 77-3-5.

Sjerely you s

jneY General

cc: Mississippi House of Representatives