On June 29, 2024, Justice Patel of the New York County Commercial Division issued a decision in Mycklebust v. Consolidated Edison Co. of N.Y., Inc., 2024 NY Slip Op. 50837(U), holding that under the filed rate and primary jurisdiction doctrines, the court should defer to the Public Service Commission on the propriety of a Con-Edison charge, explaining:
The present case arises from Con Ed’s imposition of a $100 “no-access” fee when it is unable to install new electric remote meters, or smart meters, in customer homes and businesses due to a customer’s failure to provide access.. . .
The primary jurisdiction doctrine requires this Court to consider whether it should defer to the PSC as the appropriate forum to adjudicate this dispute.
The doctrine of primary jurisdiction is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. Primary jurisdiction, comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
It is for the court to determine whether the doctrine is triggered by issues presented in a lawsuit and, if so, to refer such issues for the agency’s resolution.
The Court also considers whether Plaintiffs’ claims are independently precluded by the filed rate doctrine, which confines the adjudication of claims seeking relief for an injury allegedly caused by the payment of a rate on file with the regulatory commission to the appropriate agency. The filed rate doctrine extends to classifications, practices, and regulations affecting such charges, because rates do not exist in isolation, but are part of a broader framework of services and billing.
Here, the threshold issue is whether Defendant is permitted to charge consumers for failing to grant access to Defendant to install smart meters pursuant to Public Service Law §§ 65(6) and (9). If an additional charge is found to be permissible, then the tribunal must determine what is the reasonable amount to charge pursuant to Defendant’s filed tariff. The issues here, then, are ones of statutory interpretation and contractual/tariff interpretation that are appropriately reserved for the PSC. Likewise, the issues here implicate a filed rate—contained in Electric Tariff § 13.1.
The Court acknowledges that matters of pure statutory interpretation do not automatically necessitate deferral to the respective agency under the primary jurisdiction doctrine. However, where the interpretation of a statute involves specialized knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, the courts should defer to the administrative agency’s interpretation unless irrational or unreasonable. Further, a matter of statutory interpretation, is governed by the rule that where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited.
Plaintiffs argue that this Court is charged with determining whether Con Edison’s conduct is permitted by interpreting Public Service Law § 65(6) and words like installation, inspection, and examination. The statutory language at issue here, clearly, has common meanings, definitions, and colloquial uses that permeate the standard lexicon. In the context of public utilities, however, this language and the overlap between the definitions of the words is unknown to the Court. Indeed, Defendant’s filing in reply echoes the concern of the Court as Defendant rhetorically questions whether an employee or contractor of Defendant could install a smart meter without first inspecting or examining the surrounding accoutrements. While the question is rhetorical, this Court lacks the factual, technical, and institutional knowledge to ascertain the answer. The PSC’s expansive expertise and specialization in the topic enables the Commission to accurately interpret the statute in the context of the Commission’s goals, adjudications, and orders.
Further, the PSC is positioned to understand and account for the public policy effects of its tariffs. When a case requires the interpretation of a statute within the context of a regulatory public utility scheme, the PSC should be granted an opportunity to opine on the matter.
Plaintiff admits that interpreting Public Service Law §§ 65(6) and (9) requires an analysis of Defendant’s Tariff and whether Defendant violated Defendant’s Tariff. In fact, the parties repeatedly point to Defendant’s filed tariff and argue the terms and language present in said tariff. Indeed, to properly apply Public Service Law, this Court is forced to interpret Defendant’s Tariff—a highly technical and specific contract existing in a wide and highly technical body of law. Accordingly, this Court determines that it is appropriate to defer to the PSC to adjudicate the disputes at issue.
This Court, however, maintains jurisdiction despite primary jurisdiction belonging to the PSC. Courts routinely stay matters without dismissing them pending determinations by the PSC. The doctrine of primary jurisdiction provides that ‘where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges the court will stay its hand until the agency has applied its expertise to the salient questions. Court jurisdiction is not thereby ousted, but only postponed.
(Internal quotations and citations omitted).