Participate in a PUC Proceeding
The Consumer Advocate’s Guide to Participating in PUC Proceedings.
Disclaimer: The mission of the Office of the Consumer Advocate is to represent the collective interests of New Hampshire's residential utility customers. We do not handle matters for, or represent, individual customers. We do not enter into attorney-client relationships with any individuals or organizations. This page is provided for informational purposes only; it is not intended as, and should not be considered as, legal advice. If you have important business at the PUC, you should consider hiring an attorney.
The New Hampshire Public Utilities Commission is a quasi-judicial decision-making agency. That means most of its work is conducted via adjudicative proceedings, governed by the PUC's procedural rules and the state's Administrative Procedure Act.
Generally, there are two ways to participate in adjudicative proceedings at the PUC. The easiest is to file comments with the PUC. You should address them to puc@puc.nh.gov and include the relevant docket number in the subject line of your message. Anyone may file comments in any pending PUC docket.
The other way to participate is to become an intervenor – a full party to a proceeding, with the right to present evidence and argument, to participate in discovery (i.e., the exchange of information with other parties), and to attend all docket-related events whether open to the public or not. Under section 32 of the Administrative Procedure Act, to become an intervenor one must provide the PUC with "facts demonstrating that the petitioner's rights, duties, privileges, immunities or other substantial interests may be affected by the proceeding or that the petitioner qualifies as an intervenor under any provision of law." Upon making such a showing, the PUC must grant intervenor status if "the interests of justice and the orderly and prompt conduct of the proceedings would not be impaired by allowing the intervention."
An adjudicative proceeding begins when the PUC issues an Order of Notice, scheduling a hearing or (more commonly) a prehearing conference. The Order of Notice will also contain a deadline for seeking intervention, although it is possible to submit an intervention request after the deadline.
What triggers the issuance of an Order of Notice? Someone – usually a utility – files a petition with the PUC requesting it to take some action within its authority. Generally, the petition will include written testimony from the witnesses the petitioner intends to rely on at hearing. The practice of submitting written direct testimony at the beginning of a proceeding is common at utility commissions around the country and is a distinct feature of such decision-making bodies.
Both the Office of the Consumer Advocate (representing the interests of residential ratepayers) and the Department of Energy (an executive branch state agency) have the right to participate in all PUC proceedings as a party. At the OCA, we endeavor to participate in all significant proceedings, as our (very limited!) resources allow.
At the Pre-Hearing Conference, the parties (including intervenors and prospective intervenors) state preliminary positions and have an opportunity to discuss with the other parties what schedule to recommend to the PUC for the remainder of the proceeding. Such schedules typically include: one or more opportunities to submit data requests (i.e., questions about matters relevant to the case) to other parties, a deadline for parties other than the petitioner to submit written testimony, dates for one or more technical sessions (used to exchange information informally) and settlement conferences, and hearing dates.
A hearing is the parties' opportunity to prevent live testimony and any exhibits. Witnesses formally adopt their previously filed written testimony, add any updates, and make themselves available for cross-examination by other parties. An intervenor has the right to cross-examine witnesses at a PUC hearing. At the conclusion of a hearing, the PUC typically invites each party to provide a closing argument and, in important cases, to prepare written briefs based on the hearing transcript.
Once the PUC has issued a decision – which it must do in writing – pursuant to RSA 541:3 anyone "directly affected" (whether or not they are a party) may file a motion for rehearing. Appeals from decisions of the PUC are heard by the New Hampshire Supreme Court, but the Court will not entertain any argument that had not first been made via a motion for rehearing submitted to the PUC. A rehearing motion must be made within 30 days of the applicable PUC order; this deadline is strict and cannot be waived because it is fixed via RSA 541:3.
Although it is a very good idea to be represented by a lawyer if participating in an adjudicative proceeding at the PUC, it is not required. You may represent yourself, or you may appoint anyone of your choosing to represent you (whether or not they are an attorney). Unfortunately, parties to PUC proceedings are responsible for paying their attorneys or other representatives themselves; there is no appointed counsel.
Perhaps the most important kind of proceeding held by the PUC is a rate case. This begins when a public utility files new, higher rates with the PUC. The new rates go into effect automatically 30 days later, unless the PUC suspends them and opens a rate case. When the PUC opens a rate case, it issues an Order of Notice and conducts an adjudicative proceeding as described above.
Some PUC proceedings are informal and are not conducted as adjudications. This typically occurs when the PUC wants to investigate some policy question within its authority (e.g., new technologies, regulatory innovations, etc.) in consultation with interested parties and the public.
Finally, the PUC from time to time makes amendments to its rules or issues new rules. In contrast to an adjudication, which concerns the rights and obligations or a specific party or parties, rules are generally applicable. Rulemaking dockets are not as formal as adjudicative proceedings and are conducted pursuant to separate provisions of the Administrative Procedure Act. Generally, the PUC issues an initial proposal, seeks comment, and adopts a final proposal. The final proposal is then reviewed by the Joint Legislative Committee on Administrative Rules.
As noted above, the Office of the Consumer Advocate cannot represent individuals or groups in PUC proceedings. But, as a state agency, we are committed to providing the public as much information as we can so as to 'demystify' the PUC and its procedures. So, please contact us at oca@oca.nh.gov or (603) 271-1172 if you have questions. In the event of any conflict between this guide and the applicable statutes and rules, it is the statutes and rules that govern.
The Public Utilities Commission, the Department of Energy, and the Office of the Consumer Advocate are all subject to RSA 91-A, the Right to Know Law, which applies to meetings of government bodies and the records of state agencies (as well as municipalities).
Generally, because the PUC is a public body, RSA 91-A requires its meetings to be open to the public. However, by statute the three PUC commissioners may deliberate on adjudicative proceedings privately. PUC hearings are generally open to the public, although portions of such hearings are closed because confidential information is being reviewed. The Residential Ratepayers Advisory Board is likewise a public body subject to the open-meetings provisions of RSA 91-A.
Section 5 of RSA 91-A authorizes (but does not require) state agencies to treat certain information in their files as not subject to public disclosure. One of the disclosure exemptions covers "confidential, commercial, or financial information," which the PUC frequently invokes at the request of a utility or, occasionally, another party. The PUC's procedural rules include provisions governing how the agency will treat requests for confidential treatment of information.
When the OCA participates in adjudicative proceedings before the PUC, we have access to any confidential information filed in the proceeding but we are required to abide by the PUC's confidentiality determinations. At the OCA, we are deeply committed to the stated premise of the Right to Know Law, which is that "[o]penness in the conduct of public business is essential to a democratic society." We also believe that such openness, in matters relating to public utilities, is in the best interests of residential ratepayers. So, regardless of whether we have access to confidential information, we strive to maximize the extent to which it can be disclosed to the public.