[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Elec. Sec. Plan of Ohio Edison Co. , Slip Opinion No. 2020-Ohio-5450.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -5450
I N RE D ETERMINATION OF E XISTENCE OF S IGNIFICANTLY E XCESSIVE E ARNINGS FOR 2017 U NDER E LECTRIC S ECURITY P LAN OF O HIO E DISON C OMPANY ; O FFICE OF O HIO C ONSUMERS ’ C OUNSEL , A PPELLANT ; P UBLIC U TILITIES C OMMISSION , A PPELLEE ; O HIO E DISON C OMPANY , I NTERVENING A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Elec. S ec. Plan of Ohio Edison Co. , Slip Opinion No. 2020-Ohio-5450.] Public Utilities—R.C. 4928.143(F)—Public Utilities Commission should not have excluded the revenue from Ohio Edison Company’s Distribution Modernization Rider in its annual earni ngs review of Ohio Edison’s electric security plan—Cause remanded to the commission. (No. 2019-0961—Submitted May 12, 2020—Decided December 1, 2020. )

A PPEAL from the Public Utilities Co mmission, No. 18-0857-EL-UNC.

____________________S UPREME C OURT OF O HIO

2 S TEWART , J. {¶ 1} R.C. 4928.141(A) requires electric-distribution utilities to ma ke a “standard service offer” of generation service to consumers in one of two ways: through a “market rate offer” (under R.C. 4928.142) or an “elec tric security plan” (under R.C. 4928.143). Electric-distribution utilities that op t to provide service under an electric security plan must undergo an annual earnings review by appellee, the Public Utilities Commission. R.C. 4928.143(F). If the com mission finds that the plan resulted in “significantly excessive earnings” compare d to similar companies, the utility must return the excess to its customers. Id. {¶ 2} In this case, the commission found that intervening appellee Oh io Edison Company’s 2017 earnings we re not significantly excessive

. {¶ 3} Appellant, the Office of the Ohi o Consumers’ Counsel (“OCC”), appeals from the orders making that finding, challenging the co mmission’s decision to exclude revenue resulting from Ohio Edison’s Distribution Mo dernization Rider (“DMR”) from the earnings test. We conclude that the commissio n’s decision to exclude revenue resulting from the DMR, which was approved as p art of the company’s electric security plan, was not reasonable. Accordin gly, we reverse the
commission’s orders and remand the cause for further proceeding s. I. F ACTS AND P ROCEDURAL B ACKGROUND {¶ 4} On March 31, 2016, the commission approved the fourth electric security plan (“ESP”) of the FirstEnergy companies, which inclu des Ohio Edison. The plan runs for eight years, ending on May 31, 2024. In re Application of Ohio
Edison Co. , Pub. Util. Comm. No. 14-1297-EL-SSO, 2016 Ohio PUC LEXIS 270 at *33 (Mar. 31, 2016) (“ESP Case”). As part of the ESP, the c ommission authorized the DMR, which was in tended to serve as an incentive for the companies to modernize their distribution systems. Pub. Util. Comm. No. 14-1297-EL-SSO, 2016 Ohio PUC LEXIS 920, Fifth Entry on Rehearing, ¶ 185-213 (O ct. 12, 2016) (“ESP Fifth Entry on Rehearing”).January Term, 2020

3 {¶ 5} R.C. 4928.143(F) 1 requires the commission to consider annually whether the electric security plan resulted in “significantly e xcessive earnings” compared to companies facing “comparable” risk:

With regard to the provisions tha t are included in an electric security plan under this section, the commission shall consider , following the end of each annual period of the plan, if any suc h adjustments resulted in excessive earnings as measured by wheth er the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equi ty that was earned during the same peri od by publicly traded companies, including utilities, that face comp arable business and financia l risk, with such adjustments for capital structure as may be appropria te. Consideration also shall be give n to the capital requirements o f
future committed investments in this state.

The utility bears the “burden of proof for demonstrating that s ignificantly excessive earnings did not occur,” and if the commission finds that “such adjustments”— referring to provisions of the electric security plan—“in the a ggregate, did result in significantly excessive earnings, it shall require the electric distribution utility to
return to consumers the amount of t he excess by prospective adj ustments.” Id

. {¶ 6} On May 15, 2018, FirstEnergy filed an application with the commission to conduct the significantly-excessive-earnings test (“SEET”) for each of its companies for 2017 (the “SEET case”). FirstEnergy and t he commission’s staff argued that DMR revenue should be excluded from the SEET calculation for 2017, consistent with the commissi on’s determina tion of this is sue in the ESP case.

1. We apply the version of R.C. 4928.143(F) as amended by 2011 Am.Sub.H.B. No. 364 because that is the version that was in effect when the SEET applicatio n was filed on May 15, 2018.S UPREME C OURT OF O HIO

4 OCC challenged the exclusion of Ohio Edison’s DMR revenue, argu ing that R.C. 4928.143(F) does not permit the commission to exclude revenue c ollected directly from charges approved under the plan. {¶ 7} The commission held that revenue that Ohio Edison had collected
under the DMR in 2017 should be excluded from the SEET review b ecause that was the methodology approved in the ESP case. Pub. Util. Comm. No. 18-0857- EL-UNC, 2019 Ohio PUC LEXIS 330, at ¶ 26 (Mar. 20, 2019) (“SEET Order”), citing ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, a t ¶ 212 and Pub. Util. Comm. No. 14-1297-EL-SSO, 2017 OHIO PUC LEXIS 719, E ighth Entry on Rehearing, ¶ 81 (Aug. 16, 2017) (“ESP Eighth Entry on Rehearing”). In the ESP proceedings, the commission found that “DMR revenues sh ould be excluded from SEET calculations,” at least during the initial t hree-year period of the DMR, because including that revenue “would introduce an unn ecessary element of risk to [Ohio Edison] and undermine the purpose of providing credit support for the Compan[y].” ESP Fifth Entry on Rehearing at ¶ 212. The co mmission affirmed this ruling in the ESP Eighth Entry on Rehearing and also found that the arguments against excluding the DMR reven ue from the 2017 SEET were prema ture. Id. at ¶ 81. {¶ 8} OCC filed an application for rehearing in the SEET case, arguin g that the commission violated R.C. 4928.143(F) when it excluded DMR r evenue from
the 2017 SEET. The commission de nied rehearing on May 15, 2019

. {¶ 9} One month later, on June 19, 2019, we held that the DMR was
unlawful and ordered it removed from the ESP. In re Application of Ohio Edison
Co ., 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906. We decli ned to rule on
whether the commission erred in exc luding DMR revenue from the SEET, finding
that the issue could be raise d in the annual SEET review. Id. at ¶ 33-34. {¶ 10} On July 15, 2019, OCC filed this appeal, challenging the
commission’s decision to exclude t he DMR revenue from the SEET.January Term, 2020

5 II. S TANDARD OF R EVIEW {¶ 11} “R.C. 4903.13 provides that a [Public Utilities Commission] ord er shall be reversed, vacated, or modified by this court only when , upon consideration of the record, the court finds the order to be unlawful or unre asonable.” Constellation NewEnergy, Inc. v. Pub. Util. Comm. , 104 Ohio St.3d 530, 2004- Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify a commission decision as to questions of fact when the record contains suffi cient probative
evidence to show that the commission’s decision is not manifest ly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Monongahela Power Co.
v. Pub. Util. Comm. , 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29. The appellant bears the burden of demonstrating that the commis sion’s decision is against the manifest weight of the evidence or is clearly unsup ported by the record.
Id

. {¶ 12} Although this court has “complete and independent power of revi ew as to all questions of law” in appeals from the Public Utilitie s Commission, Ohio
Edison Co. v. Pub. Util. Comm. , 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997), we may rely on the expertise of a state agency in interpreting a law when “highly specialized issues” are involved and when “agency expertise wou ld, therefore, be of assistance in discerning the presumed intent of our General Assembly,”
Consumers’ Counsel v. Pub. Util. Comm. , 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979).
III. A NALYSIS {¶ 13} OCC argues that the commission acted unreasonably and unlawfull y when it excluded the DMR revenue from the annual SEET review. According to OCC, R.C. 4928.143(F) does not support the commission’s decisio n to remove that
revenue from the calculation of Ohio Edison’s earned return on common equity.S UPREME C OURT OF O HIO

6 OCC also asserts that the commi ssion’s decision is contrary to this court’s prior interpretation of t hat provision.
A. This court will defer to the commission’s interpretation of R.C. 4928.143(F), but only if it is reasonable {¶ 14} While we generally review ques tions of law de novo, we will def er to the commission’s interpretation of a statute when “there exi sts disparate competence between the respective tribunals in dealing with hig hly specialized
issues.” Consumers’ Counsel at 110. “One area in which this court has consistently deferred to the expertise of the commission is in determining r ate-of-return
matters.” In re Comm. Rev. of Capacity Charges of Ohio Power Co. , 147 Ohio St.3d 59, 2016-Ohio-1607, 60 N.E.3d 1221, ¶ 41, citing Ohio Edison Co. v. Pub.
Util. Comm. , 63 Ohio St.3d 555, 561, 589 N.E.2d 1292 (1992), fn. 3. “Limi ted judicial review of a rate of r eturn determination is sound” bec ause “ ‘cost of capital analyses * * * are fraught with judgments and assumptions.’ ” (Ellipsis sic.)
Consumers’ Counsel v. Pub. Util. Comm. , 64 Ohio St.2d 71, 79, 413 N.E.2d 799 (1980), quoting Dayton Power & Light Co. , Pub. Util. Comm. No. 78-92-EL-AIR, at 26 (Mar. 9, 1979). {¶ 15} In 2012, we held that R.C. 4928.143(F) is essentially a rate-of -return statute and therefore it is appr opriate to review the commissio n’s interpretation of R.C. 4928.143(F) deferentially. In re Application of Columbus S. Power Co. , 134 Ohio St.3d 392, 2012-Ohio-5690, 983 N.E.2d 276, ¶ 36-38. Never theless, we defer to the commission’s interpre tation of R.C. 4928.143(F) only if it is reasonable. Id. at ¶ 38. {¶ 16} In this case, the commission’s interpretation of R.C. 4928.143( F)—
that it allows exclusion of DMR revenue from the SEET—is not re asonable.
1. The commission’s orders cite no language in R.C. 4928.143(F) that justifies excluding DMR revenue from the SEET {¶ 17} Whether an ESP “resulted in ex cessive earnings” must beJanuary Term, 2020

7 measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned during the same period by publ icly traded companies, including utilities, that face comparable bus iness and financial risk, with such ad justments for capital structure as may be appropriate.

R.C. 4928.143(F). {¶ 18} In the SEET proceeding, the commission ruled that excluding DMR revenue from the annual earnings review was appropriate because that was the methodology that the commission had approved in Ohio Edison’s f ourth ESP case. The commission’s analysis of this issue is contained in the ESP Fifth Entry on Rehearing:

[T]he Commission finds that Rider DMR 2 revenues should be
excluded from SEET calculations. Including the revenue in SEET would introduce an unnecessary element of risk to the Companies and undermine the purpose of providing credit support for the Companies. However, we will reconsider whether to exclude Ride r DMR revenues from SEET when we rule upon any possible
extension of Rider DMR. 3

2. “Rider DMR” stands for “Rider Distribution Modernization Rid er.” We use “DMR” to avoid redundancy; however, both terms refer to the same rider.
3. The commission approved the DMR for only three years, but th e FirstEnergy companies had the option of filing an application to extend the rider for two mor e years. ESP Fifth Entry on Rehearing at ¶ 210.S UPREME C OURT OF O HIO

8 Id. , 2016 Ohio PUC LEXIS 920, at ¶ 212.

{¶ 19} The commission affirmed this ruling in the ESP Eighth Entry on Rehearing but added littl e to its analysis:

The commission affirms our ruling that the revenue collected
under Rider DMR should be excluded from SEET for the initial three-year period. At the time we issued the Fifth Entry on Rehearing, we found the arguments made by the Companies to be persuasive and continue to do so today, to the extent such argu ments are relating to the initial three-year period of Rider DMR.
Intervenors have raised no new a rguments for our consideration, and we fully considered those arguments in the Fifth Entry on Rehearing. * * * Moreover, int ervenors’ arguments raise hypothetical concerns in any event and, thus, are also prematur e. Accordingly, we find that rehearing on these assignments of err or should be denied.

Id., 2017 OHIO PUC LEXIS 719, at ¶ 81.

{¶ 20} The commission is a creature of statute and may act only under the authority conferred on it by the General Assembly. Tongren v. Pub. Util. Comm. , 85 Ohio St.3d 87, 88, 706 N.E.2d 1255 (1999). The commission’s justification for excluding the DMR was that including its revenue “would introdu ce an unnecessary element of risk to the Compani es and undermine the [DMR’s] purp ose of providing credit support.” ESP Fifth Entry on Rehearing at ¶ 212. But t he commission failed to even cite R.C. 4928.143(F), let alone explain how that provi sion allows the commission to exclude DMR revenue on this basis. We recently h eld that theJanuary Term, 2020

9 commission’s failure to cite specific statutory authority for i ts actions is grounds
for reversal. In re Application of Ohio Edison Co. , 158 Ohio St.3d 27, 2019-Ohio4196, 139 N.E.3d 875, ¶ 15-17 (“we decline to assume that the G eneral Assembly implicitly granted authority to the commission * * * without an y clear indication in the statutory language to that effect”). {¶ 21} The commission’s finding that Ohio Edison would face “an unnecessary element of risk” if D MR revenue were included, ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212, does not provide the necessary support. In making that finding, the commission appears to hav e accepted Ohio Edison’s claim that including the revenue in the SEET calculati on would defeat the DMR’s purpose of supporting future grid-modernization projects by increasing the risk to the company of having to refund that revenue. See id. at ¶ 181 (setting forth Ohio Edison’s argument and citing an exhibit submitted by Ohio Edison). But
electric utilities face the risk of a refund in every SEET case. See R.C. 4928.143(F) (if the commission finds that the ESP resulted in excessive ear nings, “it shall require the electric distribution utility to return to customer s the amount of the excess”). The commission’s remova l of revenue from the SEET wi thout statutory authorization and without an appr opriate rationale completely u ndermines the purpose of the test.
2. The commission’s orders are contrary to precedent {¶ 22} OCC also argues that the commission’s decision is contrary to o ur interpretation of R.C. 4928.143(F) in Columbus S. Power , 134 Ohio St.3d 392, 2012-Ohio-5690, 983 N.E.2d 276. We agree. {¶ 23} In Columbus S. Power , we considered the commission’s ability to exclude certain revenue from the utility’s earnings before determining whether the utility’s earnings were significantly excessive. The commissio n had excluded from the utility’s earnings certain revenue from off-system sales—wh olesale sales by theS UPREME C OURT OF O HIO

10 utility to nonretail customers. Id. at ¶ 7-8, 35. We analyzed the following language
contained in the first s entence of R.C. 4928.143(F):

With regard to the provisions tha t are included in an electric security plan under this section, the commission shall consider , following the end of each annual period of the plan, if any suc h adjustments resulted in e xcessive earnings * * *.

{¶ 24} We explained that this language requires the commission to determine whether “such adjustme nts”—referring to provisions of the ESP— resulted in excessive earnings. Columbus S. Power at ¶ 40. And we concluded that, by implication, earnings not caused by the ESP may be excluded from consideration. We therefore held that the commission’s interpr etation of R.C. 4928.143(F)—that it allows exclusion of revenue not resulting from the ESP—was
reasonable. Columbus S. Power at ¶ 39-40. {¶ 25} OCC maintains that the DMR is a provision of the ESP and constitutes an “adjustment ” under R.C. 4928.143(F). OCC theref ore contends that
under Columbus S. Power , the commission was required to consider whether the DMR—as an adjustment to the ESP— resulted in excessive earnings. {¶ 26} OCC is correct. To be sure, w e did not directly decide in Columbus
S. Power whether earnings caused by the ESP may be exclude d from consideration before determining whether the utility’s earnings were signific antly excessive. But we did say that R.C. 4928.143(F) requires the commission to fin d whether “adjustments” to (i.e., provisions of) the electric security pl an “resulted in excessive earnings.” Columbus S. Power at ¶ 40. Moreover, the commission has defined “adjustments” in the first se ntence of R.C. 4928.143(F) as “inc lud[ing] any change in rates when compared to the rates in the electric utility’s p receding rate plan.” InJanuary Term, 2020

11 re Investigation into the Development of the Significantly Excessive Earnings Test , Pub. Util. Comm. No. 09-786-EL-UNC, at 15 (June 30, 2010) (“SEE T Test Case”). {¶ 27} There is no question that the DMR constituted a change in rates when compared to the rates in the electric utility’s preceding rate plan. The commission’s approval of the DMR authorized the FirstEnergy companies to col lect an additional $168 million to $204 million in revenue in each of the first th ree years of the companies’ fourth ESP. See In re Application of Ohio Edison , 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, at ¶ 1, 6. Therefore, the DMR constitutes an “adjustment” under R.C. 4928.143(F) and the commission was requ ired to include the DMR when determining whethe r the plan resulted in excessive earnings. {¶ 28} Accordingly, we hold that the commission’s action in this case— removing DMR revenue from the cal culation used to determine whe ther the ESP
resulted in excessive earni ngs—violated R.C. 4928.143(F). 3. The court lacks jurisdiction over the alleged violation of R.C. 4903.09 {¶ 29} The opinion concurring in judgme nt only in part and dissenting in part (hereafter, “concurring a nd dissenting opinion” or “dissen t”) concurs in the judgment reversing the commissi on’s order but dissents from our determination
that the commission must include the DMR revenue in the SEET ca lculation on
remand. The dissent is based on the view that the commission v iolated R.C. 4903.09, which requires the commissi on’s order to include the f actual basis and reasoning that the commission relied on in reaching its decisio n. Tongren , 85 Ohio St.3d at 89-90, 706 N.E.2d 1255. According to the dissent, the commission violated this provision when it “failed to explain the statutory and evi dentiary bases for its decision to exclude the [DMR] revenue from the [SEET] required by R.C. 4928.143(F).” Concurring and dissenting opinion at ¶ 88. As a result, the dissent contends, “[i]t is premature to reach the merits of whether R.C . 4928.143(F) permitted the commission t o exclude the [DMR] revenue from the [SEET]” and to
order that the commission include the revenue in a new SEET pro ceeding onS UPREME C OURT OF O HIO

12 remand. Id. at ¶ 114. Instead, the dissent opines that precedent requires us to “return this matter to the co mmission to explain and support it s decision” to exclude
the DMR from the SEET. Id. at ¶ 88. {¶ 30} The dissent overlooks the fact that OCC did not allege a violat ion of R.C. 4903.09 in an application for reh earing before the commiss ion. And that fact is crucial because it means we lack jurisdiction over this issu e on appeal. See R.C. 4903.10; In re Fuel Adjustment Clauses for Columbus S. Power Co. & Ohio Power
Co. , 140 Ohio St.3d 352, 2014-Ohio-3764, 18 N.E.3d 1157, ¶ 71; see also In re Application of Am. Transm. Sys., Inc. , 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 27 fn. 1; In re Application of Columbus S. Power Co. , 128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655, ¶ 71. {¶ 31} Moreover, in concluding that the commission violated R.C. 4903. 09, the dissent states that “the commission’s finding that Ohio Edi son would face ‘an unnecessary element of risk’ if [DMR] revenue were included in the earnings test lacks any citation to record evidence and is therefore an insu fficient rationale.” (Emphasis added.) Concurring and dissenting opinion at ¶ 96. But the commission did refer to evidence submitted by Ohio Edison in making this f inding. Therefore, although the commission’s decision lacked a sufficient rational e, it is not accurate
to hold that the commission’s ri sk finding lacked record eviden ce. In the end, it would be improper for us to dispose of this appeal on an allege d violation of R.C.
4903.09. B. The counterarguments {¶ 32} Ohio Edison and the commission both a rgue that the plain langua ge of R.C. 4928.143(F) supports the commission’s decision to remov e the DMR revenue from the SEET. They cla im that the statute authorizes the commission to make appropriate “adjustments” to the electric utility’s earned return on common equity in conducting the SEET, although their claims differ on the type of adjustment the commission made w hen it removed the DMR revenue. As explainedJanuary Term, 2020

13 below, because the commission’s orders do not mention this just ification for the removal of the DMR revenue, we reject the counterarguments. 1. The commission’s counterarguments {¶ 33} The commission claims that it has discretion under R.C. 4928.14 3(F) to make certain adjustments in conducting the SEET. Under R.C. 4928.143(F), whether an electric security pl an “resulted in excessive earnin gs” is

measured by whether the earned return on common equity of the electric distribution utility is significantly in excess of the return on common equity that was earned dur ing the same period by publicl y traded companies, including u tilities, that face comparable bus iness and financial risk, with such adjustments for capital structure as may be appropriate. Consideration also shall be given to the capital requirements of future committed investments in this state

.

(Emphasis added.) According to the commission, in removing the DMR from the SEET, the commission merely made “an adjustment for improving t he company’s capital structure appropriately to support the large commitment s needed for grid
modernization.” And because the a djustment to Ohio Edison’s ca pital structure under R.C. 4928.143(F) is a matter for the commission’s experti se, the commission
asserts that we should defe r to its determination. {¶ 34} The commission, however, never said it was making an adjustment for capital structure when it removed the DMR revenue. As note d, the commission cited no language in R.C. 4928.143(F) t hat would authorize it t o remove the DMR
revenue from the SEET calculati on. If the commission had deter mined that removing this revenue was an a ppropriate adjustment to Ohio Edi son’s capital structure under the SEET, it should have said so.S UPREME C OURT OF O HIO

14 {¶ 35} Nor did Ohio Edison argue that th e removal of DMR revenue was justified as an adjustment to its capital structure. In fact, in the ESP case, it specifically argued that “to the extent that the Commission det ermines that Rider
DMR revenue should be included in the SEET calculati on, the Commission would need to make appropriate adjustments to the Companies’ capital structure.” (Emphasis added.) {¶ 36} While we generally defer to the commission in matters involving its expertise, we cannot defer to a determination the commission ne ver made. See Rich’s Dept. Stores, Inc. v. Levin , 125 Ohio St.3d 15, 2010-Ohio-957, 925 N.E.2d 951, ¶ 23-24 (although we acknowledged that the Board of Tax Ap peals’ “ factual findings merit utmost deference when supported by the record,” we declined the taxpayer’s request that we “ defer to a finding that the [Board of Tax Appeals] did

not make ”). For these reasons, our practice is not to uphold a commission’s discretionary decision when the commission offers a different j ustification on appeal than it provided in its order. Duke Energy at ¶ 23-26. We therefore reject the commission’s attempt to recast its decision. 2. Ohio Edison’s counterarguments
a. The commission did not adopt Ohio Edison’s comparable-risk argument {¶ 37} Ohio Edison argues that the plain language of R.C. 4928.143(F) supports the commission’s decision to remove DMR revenue from t he SEET’s
calculation of the earned re turn on common equity. R.C. 4928.1 43(F) requires the commission to compare the electric utility’s return on common e quity with the returns of “publicly traded companies, including utilities, that face comparable business and financial risk .” (Emphasis added.) The commission found that Ohio Edison would face an “an unnecessary element of risk” if the DM R revenue were included. ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 92 0, at ¶ 212. According to Ohio Edison, because no other company has a mechan ism like theJanuary Term, 2020

15 DMR, the commission found that removal of its revenue was neces sary for the commission to conduct a valid comparison based on “comparable r isk.” The record from the ESP case, however, does not support this argument. {¶ 38} Ohio Edison did argue in the ESP case that DMR revenue should b e excluded to allow the commission to conduct a valid comparison of the earned returns on equity. But Ohio Edison’s witness never mentioned r isk to the company in making the valid-comparison argument to the commission. Rat her, Ohio
Edison’s risk claim was made in relation to having to refund DM R revenue. The commission found this argument persuasive. However, in the end , the commission never mentioned the comparable -risk clause in R.C. 4928.143(F) as its reason for excluding the DMR revenue, s o we reject this argument.
b. The commission did not excl ude DMR revenue based on
similar exclusions i n the SEET Test Case {¶ 39} Under R.C. 4928.143(F), the commission must determine the electric utility’s “earned return on common equity.” In the SE ET Test Case, the commission defined “earned return” as “the electric utility’s p rofits after deduction of all expenses, including taxes , minority interest, and prefer red dividends, paid or accumulated, and excluding any non-recurring, speci al, and extraordinary items .” (Emphasis added.) Id. , Pub. Util. Comm. No. 09-786-EL-UNC, at 18 (June 30, 2010). {¶ 40} Ohio Edison argues that the commission “relied on testimonial evidence” to properly remove DMR revenue when it calculated the earned return based on this definition. Specifically, Ohio Edison claims tha t the commission excluded the revenue because the DMR (1) constituted an “extrao rdinary item” and (2) was “associated with an[] additional liability or write-off of regulatory assets due to implementing” the fourth ESP. {¶ 41} Ohio Edison made this argument in the ESP case, but the commission did not rely on it when it excluded the DMR revenue. Even thoughS UPREME C OURT OF O HIO

16 the commission ruled in Ohio Edison’s favor, the company contin ued to argue that it was proper to exclude the rev enue on these additional ground s. ESP Eighth Entry on Rehearing, 2017 OHIO PUC LEXIS 719, at ¶ 78. {¶ 42} The commission resolved Ohio Edison’s argument in the ESP Eight h Entry on Rehearing, as follows:

The Commission affirms our ruling that the revenue
collected under Rider DMR should be excluded from SEET for the initial three-year period. At the time we issued the Fifth Entry on Rehearing, we found the arguments made by the Companies to be persuasive and continue to do so today , to the extent such arguments are relating to the initial th ree-year period of Rider DMR.

(Emphasis added.) Id. at ¶ 81. {¶ 43} Ohio Edison cites this paragraph as proof that the commission adopted these additional grounds to support its decision to rem ove the revenue. For the following reasons, we decline to read this decision in the manner that Ohio Edison suggests. {¶ 44} First, the commission made no ex press or implicit finding that the DMR constituted an “extraordinary item” or an “additional liabi lity or write-off of [a] regulatory asset[].” Although the commission found Ohio Ed ison’s arguments “persuasive,” the commission never identified which arguments w ere persuasive. And the fact remains that the commission adopted only Ohio Edis on’s increasedrisk argument in support of removing DMR revenue. See ESP Fifth Entry on Rehearing, 2016 Ohio PUC LEXIS 920, at ¶ 212; ESP Eighth Entry on Rehearing, 2017 OHIO PUC LEXIS 719, at ¶ 81. {¶ 45} Second, Ohio Edison ignores that its SEET application did not mention that the DMR was being excluded as an “extraordinary it em.” Ohio EdisonJanuary Term, 2020

17 likewise overlooks that the SEET a pplication expressly stated t hat there were “no adjustments * * * associated wit h any additional liability or w rite-off of regulatory
assets.” {¶ 46} The dissent faults the lead opinion for discarding Ohio Edison’ s arguments construing R.C. 4928.143(F). As the dissent sees it, this court “must address all arguments regarding what the statute means,” even w hen the
commission declined to address a n argument that was raised belo w and even when a party raises an argument for the first time on appeal. Concu rring and dissenting opinion at ¶ 110. {¶ 47} We have previously explained that our practice is not to uphold a commission’s decision based on a ju stification asserted by a pa rty on appeal that is different from the justification the commission provided in its order. See In re Application of Duke Energy Ohio, Inc. , 148 Ohio St.3d 510, 2016-Ohio-7535, 71 N.E.3d 997, ¶ 23-26. Because the dissent cites no authority th at undermines our
adherence to that rule in thi s appeal, we see no need to recons ider that rule here. {¶ 48} Likewise, we are not required to consider arguments on appeal t hat could have been but were not raised in earlier administrative p roceedings.
Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. , 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993); Independence v. Office of the Cuyahoga Cty. Executive , 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30. Qu ite simply, the failure to present an argument to the commission co nstitutes a waiver of that argument on appeal. Parma v. Pub. Util. Comm. , 86 Ohio St.3d 144, 148, 712 N.E.2d 724 (1999); Ohio Consumers’ Counsel v. Pub. Util. Comm ., 127 Ohio St.3d 524, 2010-Ohio-6239, 941 N.E.2d 757, ¶ 18. And although there may be exceptions, as a matter of basic fairness, we do not accept obj ections when a party has deprived the commission of a n opportunity to correct the er ror, Parma at 148;
Ohio Consumers’ Counsel at ¶ 18 ; In re Application of Columbus S. Power Co. , 129 Ohio St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19.S UPREME C OURT OF O HIO

18 {¶ 49} Finally, the dissent contends, “[C]ontrary to the lead opinion, Ohio Edison’s arguments draw upon the plain meaning of R.C. 4928.143 (F), and therefore, its arguments have merit.” Concurring and dissentin g opinion at ¶ 89. According to the dissent, the DMR “affects Ohio Edison’s financ ial risk, its capital structure, and the capital requi rements for committed investmen ts in this state, and R.C. 4928.143(F) affords the commission discretion to adjust th ese components as may be appropriate.” Concurri ng and dissenting opinion at ¶ 11 3. {¶ 50} Ohio Edison, however, did not argue in this appeal that the DMR
revenue should be excluded from th e SEET either as an adjustmen t for the company’s capital structure or due to its capital requirements for future committed investments. Hence, it is imprope r for us to consider these ar guments at this time. As for whether the DMR revenue may be excluded from the SEET ba sed on increased business and financial risk to the utility, we note t hat the dissent’s argument is based on its erroneous claim that the commission fo und that including
the DMR revenue in the SEET increased Ohio Edison’s business and financial risk

. The dissent concedes that the commission made no such finding b y observing that the commission’s risk finding was “presumably” referring to the company’s
business and financial risk. C oncurring and dissenting opinion at ¶ 111. c. Ohio Edison’s lack-of-prejudice and lack-of-jurisdiction-to-remand claims {¶ 51} Ohio Edison asserts that we shoul d dismiss this appeal because OCC has not demonstrated prejudice stemming from the commission’s S EET order. Ohio Edison also contends that we lack jurisdiction to remand t his case for a new SEET proceeding. We reject both arguments. i. OCC has demonstrated prejudice {¶ 52} We “will not reverse an order of the commission upon an assignm ent of error without a showing of concomitant harm or prejudice.” Ohio Commt. of
Cent. Station Elec. Protection Assn. v. Pub. Util. Comm. , 50 Ohio St.2d 169, 174,January Term, 2020

19 364 N.E.2d 3 (1977). Ohio Edison contends that OCC has not sho wn harm to ratepayers caused by the commi ssion’s decision to exclude DMR r evenue from the company’s return on equity. According to Ohio Edison, rather t han citing evidence that establishes harm, OCC merely speculates that consumers mig ht be entitled to
a refund. {¶ 53} Contrary to Ohio Edison’s claim, OCC was not required to show t hat ratepayers were entitled to a refund to establish harm. R.C. 4 928.143(F) protects ratepayers from having to pay significantly excessive rates to the electric utility. But ratepayers are protected onl y if the commission conducts a valid SEET. OCC
cannot show that a refund is wa rranted until a new SEET proceed ing is conducted, yet Ohio Edison would deny OCC that opportunity. OCC’s harm is that Ohio Edison was not required to incl ude the DMR revenue in its earni ngs when it asserted that the ESP earnings were not significantly excessive

. Compare
Columbus S. Power , 134 Ohio St.3d 392, 2012-Ohio-5690, 983 N.E.2d 276, at ¶ 46 (finding that the appellant faile d to show prejudice when it ne ither explained nor provided evidence of which adjustments the commission should ha ve made under the SEET). ii. This court has jurisdiction to remand this case for new SEET proceeding {¶ 54} Ohio Edison also alleges that we lack jurisdiction to remand th is case
to the commission for a new SEET proceeding. {¶ 55} In the SEET proceeding, the commission found that Ohio Edison’s calculation of 12.22 percent for the return on equity should be used for the 2017 SEET analysis. The commission re jected OCC’s calculation of th e company’s return on equity of 17.39 percent because OCC had included the DMR revenue in
this calculation. {¶ 56} In addition to determining Ohio Edison’s return on equity, the
commission needed to determine an appropriate SEET threshold, w hich is the pointS UPREME C OURT OF O HIO

20 above which earnings are consider ed significantly excessive. T he commission considered three different methodologies: one proposed by the c ommission’s staff that resulted in a return on equity threshold of 17.22 percent, a second proposed by Ohio Edison resulting in a threshold of 19.20 percent, and OCC’ s methodology, which resulted in a propose d threshold of 14.91 percent. {¶ 57} The commission, however, did not settle on a specific SEET threshold. Instead, the commission found that the methodologie s of Ohio Edison
and the commission’s sta ff were appropriate. {¶ 58} Against this backdrop, Ohio Edison maintains that the only issu e OCC preserved for appeal was a challenge to the commission’s ca lculation of the company’s return on equity. According to Ohio Edison, even if OCC were to prevail on its challenge to the r eturn-on-equity calculation, O CC’s calculated return on equity of “17.39 percent is s ubstantially below the 19.20 pe rcent SEET threshold approved by the Commission.” Ohio Edison claims that OCC never challenged the 19.20 percent SEET threshold that was approved by the commissio n either on rehearing at the commission or on appeal. As a result, Ohio Ed ison argues, OCC
waived the issue whether Ohio Edi son had significantly excessiv e earnings for 2017 and this court lacks jurisd iction to consider the issue. {¶ 59} OCC responds that the commission never established the SEET
threshold in the case below. The refore, OCC asserts, the court has jurisdiction to
remand the cause to the commission with instructions that it co nduct the SEET with
the DMR revenue included and establish the SEET threshold. We agree with OCC. {¶ 60} Although the commission found that the methodologies of Ohio Edison and the commission’s staff were “appropriate,” the commi ssion did not determine a specific SEET thre shold. Instead, the commission f ound that Ohio Edison’s earnings were not significantly excessive, because the “properly calculated” return on equity for Ohio Edison of 12.22 percent ( which excluded DMR revenue) fell well below all of the recommended thresholds. Thus, whileJanuary Term, 2020

21 Ohio Edison is correct that OCC’ s calculated return on equity o f 17.39 percent (which included DMR revenue) wa s below Ohio Edison’s proposed S EET threshold (19.20 percent), it did not fall below the proposed SEET thresholds of
either the commission’s sta ff (17.22 percent) or OCC (14.91 per cent). {¶ 61} In sum, the record does not support Ohio Edison’s claim that th e commission approved a 19.20 percent SEET threshold. Therefore, we reject Ohio Edison’s claim that we lack jurisdiction to remand this case fo r a new SEET proceeding. d. OCC did not waive its challeng e to the approved stipulation {¶ 62} Ohio Edison’s final argument is that OCC waived any challenge t o the commission’s approval of the s tipulation entered into by Oh io Edison, the commission’s staff, and Ohio Energy Group in the SEET proceedin g. The stipulation purported to resolve all outstanding issues in the SEET proceeding and
recommended that the commission find that Ohio Edison did not h ave significantly excessive earnings for 2017. After review, the commission modi fied and approved the joint stipulation. {¶ 63} Ohio Edison claims that because OCC did not argue on appeal tha t the stipulation did not meet the three criteria necessary for a pproval of a stipulation, the commission’s approval of t he stipulation must stand. See Constellation NewEnergy , 104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, at ¶ 8 (s etting forth the three criteria). We disagree. {¶ 64} A stipulation presented to the c ommission is entitled to the fo rce of law only if it is approved by a commission order. Consumers’ Counsel v. Pub. Util.
Comm. , 114 Ohio St.3d 340, 2007-Ohio-4276, 872 N.E.2d 269, ¶ 16. OC C argues on appeal that the commission’s orders are unlawful and unreaso nable because it
removed DMR revenue in viola tion of R.C. 4928.143(F). OCC did not need to couch its appeal as a challenge t o the commission’s application of the three-part test, because its challenge to t he commission’s orders directly implicates theS UPREME C OURT OF O HIO

22 commission’s approval of the sti pulation. Therefore, we reject Ohio Edison’s waiver argument.
IV. C ONCLUSION {¶ 65} For the foregoing reasons, we reverse the orders on appeal and
remand the case to the commission for further review consistent with this opinion. On remand, we instruct the commi ssion to conduct a new SEET pro ceeding in which it includes the DMR revenue in the analysis, determines t he SEET threshold, considers whether any adjustments under R.C. 4928.143(F) are ap propriate, and makes any other determinations t hat are necessary to resolve th is matter.
Orders reversed
and cause remanded.
O’C ONNOR , C.J., and D ONNELLY , J., concur.
D E W INE , J., concurs in judgment only, with an opinion.
K ENNEDY , J., concurs in judgment only i n part and dissents in part, wi th an opinion joined by F RENCH , J.
F ISCHER , J., dissents.

_________________ D E W INE , J., concurring in judgment only. {¶ 66} I agree with the majority’s holding that the Public Utilities
Commission of Ohio could not exclude revenue from Ohio Edison C ompany’s
“Distribution Moderniz ation Rider” (“DMR”) 4 in its annual earnings review of Ohio Edison’s electric security plan. The lead opinion reasons , correctly, that the statute laying out the framewo rk by which the commission determ ines whether an electric security plan resulted in excessive earnings does not authorize the

4. The DMR is a “temporary, additional charge * * * separate fr om the basic monthly rates” that the commission allowed as part of Ohio Edison’s electric security p lan in the hope that the revenue from the DMR would serve as an incentive for Ohio Edison to moderniz e its utility distribution system. See In re Application of Ohio Edison Co. , 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, ¶ 1, fn. 1.January Term, 2020

23 commission’s actions in this case. Lead opinion at ¶ 20. I ca nnot join the lead opinion, though, because of my concerns with the deference it g ives to the commission’s interpre tation of the law. {¶ 67} As a creation of statute, the commission cannot act beyond the powers given to it by the General Assembly. Discount Cellular, Inc. v. Pub. Util.
Comm. , 122 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 51. R.C. 4928.143(F) requires the commission t o consider whether provisi ons in an electric security plan

resulted in excessive earnings as measured by whether the earne d return on common equity of the electric distribution utility is significantly in excess of the r eturn on common equity that was earned during the same period by publicly traded companies, including utilities, that face comp arable business and financia l risk, with such adjustments for capital structure as may be appropria te. * * * Consideration also shall be given to the capital require ments of future committed investments in this state.

{¶ 68} The statute requires the commission to perform a two-part task. First, the commission must select companies that “face comparab le business and financial risk” to the utility and determine the return on equi ty of the utility and the comparable companies. When it co mes to this determination, the statute permits only one type of adjustment—“adjustments for capital structure as may be appropriate.” Once the commission has completed this step, the n it must compare the return on equity of the utility and the comparable companie s and determine whether the utility’s return on equity is substantially in exce ss of the comparable companies. This step is less circumscribed: the statute does n ot define “significantly in excess,” and in making its determination, the commission is alsoS UPREME C OURT OF O HIO

24 to give consideration to “the cap ital requirements of future co mmitted investments
in this state.” {¶ 69} By its plain terms, the statute does not allow for the commissi on’s adjustment to remove DMR revenues from the utility’s return on equity. It is not an “adjustment[] for capital stru cture” under any plausible und erstanding of the phrase. Thus, the plain text of the statute compels us to conc lude that the commission lacked statutory authority for its actions. See In re Application of Ohio
Edison Co. , 158 Ohio St.3d 27, 2019-Ohio-4196, 139 N.E.3d 875, ¶ 17 (“we decline to assume that the General Assembly implicitly granted authority to the commission * * * without any clear indication in the statutory language to that effect”). {¶ 70} That should be where the court’s analysis begins and ends. But the lead opinion takes a different p ath. First, the lead opinion a nnounces that because R.C. 4928.143(F) is a rate-of-retu rn statute, it will defer to the agency’s interpretation as long as its int erpretation is reasonable. Le ad opinion at ¶ 15. It then goes on to analyze whether t he commission’s interpretation of the statute was reasonable. Even under this highl y deferential standard, the l ead opinion concludes that the commission’s interpreta tion was unreasonable and so ul timately reaches the right result. But I worry that the analytical path it uses in this case further
muddles this court’s caselaw on a dministrative deference. {¶ 71} As I have written before, I am skeptical of deferring to an age ncy’s statutory interpretation. Such deference blurs the separation- of-powers principles that underpin our constitutional order. See, e.g., State ex rel. McCann v. Delaware Cty Bd. of Elections , 155 Ohio St.3d 14, 2018-Ohio-3342, 118 N.E.3d 224, ¶ 30- 31 (DeWine, J., concurring in judgment only). Deference to an agency’s interpretation of a statute for ces the judiciary to abandon the exercise of its independent judgment in favor o f an agency’s construction. Michigan v. Environmental Protection Agency , 576 U.S. 743, 761, 135 S.Ct. 2699, 192 L.Ed.2dJanuary Term, 2020

25 674 (2015) (Thomas, J. concurring), citing Natl. Cable & Telecommunications
Assn. v. Brand X Internet Servs. , 545 U.S. 967, 983, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). But even without a wholesale reexamination of our deference doctrine, there are problems with the lead opinion’s analysis that should not go unmentioned. {¶ 72} I have two fundamental concerns. First, the lead opinion’s
formulation of the deference doc trine requires that we defer to an agency’s reasonable interpretation of a statute, even if we have not fir st concluded that the statute is ambiguous. Second, in analyzing the statute at issu e, the lead opinion fails to distinguish between matte rs over which the legislature has delegated authority to the commission and m atters of purely legal interpr etation. No Deference Is Owed to an Agency’s Interpretation of an Unambiguous Statute {¶ 73} The most troubling aspect of the lead opinion is its assertion that we should defer to an agency’s interpretation of a statute if it i s reasonable. See lead opinion at ¶ 15 (“we defer to the commission’s interpretation o f R.C. 4928.143(F) only if it is reasonable”). Even under familiar deference doct rines this formulation misses an important first step. Before a court even considers deferring to an agency’s interpretation, it must first find that the statute is genuinely ambiguous. {¶ 74} The Ohio Revised Code makes this requirement explicit. R.C. 1. 49 sets forth six items a court “may consider among other matters” “[i]f a statute is ambiguous.” These include things like “the object sought to be attained,” the circumstances of enactment, the common law, and “[t]he administ rative
construction of the s tatute.” Thus, by the plain provisions of the Ohio Revised Code, a finding of ambiguity must come before a court is even p ermitted to consider an agency’s interpretation. And even then, we need not defer t o that construction, we need only “consider” it. {¶ 75} The requirement that a finding of ambiguity must come before a court affords deference has some parallels to the practice in t he federal system.S UPREME C OURT OF O HIO

26 Under the familiar (though oft-criticized) standard first artic ulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), a court will so metimes defer to an agency’s interpretation of an ambiguous sta tute. As I’ve noted before, I’m no fan of the
Chevron doctrine. See State ex rel. McCann , 155 Ohio St.3d 14, 2018-Ohio-3342, 118 N.E.3d 224, at ¶ 30-34. But it is worth pointing out that even the Chevron doctrine, as it is currently unde rstood, is far less deferentia l to agency decisionmaking than the for mulation employed by the lead opinion today. {¶ 76} For Chevron to apply, a court must find that Congress has delegated an agency the authority to promulgate rules with the force of l aw and “the agency interpretation claiming deference was promulgated in the exerci se of that authority.” United States v. Mead Corp. , 533 U.S. 218, 226-227, 121 S.Ct 2164, 150 L.Ed.2d 292 (2001). If a court finds that Congress has del egated such authority to the agency, it must then e ngage in a two-step process. {¶ 77} First, the court must determine whether the statute is ambiguou s. “[D]eference is not due unless a ‘court, employing traditional tools of statutory construction,’ is left with a n unresolved ambiguity.” Epic Sys. Corp. v. Lewis , ___ U.S. ___, 138 S.Ct. 1612, 1630, 200 L.Ed.2d 889 (2018), quoting Chevron at 843, fn. 9. Only when the statute has been found to be genuinely am biguous does the court move to the second step of the process and determine whet her the agency’s interpretation is reasonable. Chevron at 843. {¶ 78} The lead opinion’s confusion t oday is somewhat understandable. This court’s precedent is far fro m consistent when it comes to the requirement that a statute be found ambiguous before consideration may be given to an agency’s construction. At times, we have followed the Chevron model and first asked whether the statute was ambiguous. See, e.g. , Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 29; Lang v. Dir., Ohio Dept. of Job & Family Servs. , 134 Ohio St.3d 296, 2012-January Term, 2020

27 Ohio-5366, 982 N.E.2d 636, ¶ 14-15 (concluding that because the federal statute at issue was ambiguous, the court would defer to the Ohio agency’s interpretation of the statute). More often, thoug h, we have simply said that we will defer to an agency’s interpretation as long as it is reasonable. See, e.g., State ex rel. Lucas Cty. Republican Party Executive Commt. v. Brunner , 125 Ohio St.3d 427, 2010-Ohio1873, 928 N.E.2d 1072, ¶ 23; In re Columbus S. Power Co. , 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 29. {¶ 79} The lead opinion continues on th is wrong path, eschewing the limitations imposed by R.C. 1.49 (and on federal courts by Chevron ). It never asks if the legislature delegated to the commission the claimed-auth ority to interpret R.C. 4928.143(F). And it never asks whether the statute is tru ly ambiguous. It asks only whether the commission’s interpretation is reasonable. {¶ 80} “The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and divisions thereof, and s uch other courts inferior to the supreme court as may from time to time be estab lished by law.” Ohio Constitution, Article IV, Section 1. Central to the judicial p ower is the duty to “say
what the law is.” Marbury v. Madison , 5 U.S. 137, 177, 2 L.Ed. 60 (1803). When we defer to an agency’s interpretation of a statute—asking only whether it is reasonable—we abdicate our constitutional responsibility. At t he very least, we ought to ensure that a statute is truly ambiguous, before we ev en consider giving weight to an agency’s interpretation. There Is No Reason to Defer to the Commission’s Legal Construction of “Rat e of Return” Statutes {¶ 81} The lead opinion’s willingness to skip the ambiguity step is no t the only problem with its analysis. Also troubling is its assumpti on that deference is owed to any agency determination of rate-of-return matters, wit hout distinguishing between the agency’s construction of statutory terms and its pe rformance of a task delegated to it by the legislature.S UPREME C OURT OF O HIO

28 {¶ 82} The lead opinion makes the blanket statement that “ ‘One area i n which this court has consistently deferred to the expertise of the commission is in determining rate-of-return ma tters.’ ” Lead opinion at ¶ 14, q uoting In re Comm. Rev. of Capacity Charges of Ohio Power Co. , 147 Ohio St.3d 59, 2016-Ohio-1607, 60 N.E.3d 1221, ¶ 41. It then says that because R.C. 4928.143 (F) is essentially a rate-of-return statute, it will defer to the commission’s inter pretation as long as it is
reasonable. {¶ 83} The problem, though, is that in making this broad statement, an d in its subsequent analysis, the lead opinion fails to distinguish between matters over which the legislature has dele gated authority to the commission (such as whether a given rate of return is appropr iate) and genera l matters involv ing the interpretation of plain statutory terms. As to the former, deference may be a ppropriate; but it is
not for the latter. {¶ 84} To see why, let’s return to the statute. Under R.C. 4928.143(F ), “the
commission shall consider” whethe r provisions in an electric se curity plan resulted in returns that were “significantly in excess of the return on common equity” of comparable companies. The statu te does not define “significant ly in excess” and thus could be read to delegate a uthority to the commission to m ake this determination. Hence, if the question was whether a 5, 10, or 15 percent return differential was “significantly in excess,” it might be appropr iate to defer to the commission’s judgment. {¶ 85} But that is not the question here . The question is whether the DMR revenue could be excluded from th e excessive-earnings calculati on. To answer that question, one need only determine whether the removal of DMR re venues is an “adjustment[] for capital structure,” R.C. 4928.143(F). The re levant considerations are the nature of DMR revenues and the meaning of “capital stru cture.” The question is simply one of legal interpretation of commonly used terms, and it is one that should be made by a court without deference to the commiss ion. See In reJanuary Term, 2020

29 Application of Ohio Edison Co. , 157 Ohio St.3d 73, 2019-Ohio-2401, 131 N.E.3d 906, at ¶ 62 (DeWine, J., concurring in judgment only); In re Application of Black Fork Wind Energy, L.L.C. , 156 Ohio St.3d 181, 2018-Ohio-5206, 124 N.E.3d 787, ¶ 43 (Kennedy, J., concurring). It Is Time to Revisit Our Caselaw on Administrative Deference {¶ 86} The lead opinion is simply more evidence that we need to revisi t our caselaw on administrative deference. This court’s caselaw is f ar from consistent on the topic, is at odds with basic notions of separation of po wers, and fails even to comply with our statutory charge in R.C. 1.49. In recent years , at least seven state supreme courts have revisited a nd rejected their doctrines of a dministrative
deference. See In re Complaint of Rovas Against SBC Michigan , 482 Mich. 90, 111, 754 N.W.2d 259 (2008) (declining to adopt Chevron for review of state administrative agencies’ statutory interpretation on, among oth ers, separation-ofpowers grounds); Douglas v. Ad Astra Information Sys., L.L.C. , 296 Kan. 552, 559, 293 P.3d 723 (2013) (stating that judicial deference to agency construction of statutes “has been abandoned, ab rogated, disallowed, disapprove d, ousted, overruled, and permanently relegated to the history books”); Hughes Gen. Contrs.,
Inc. v. Utah Labor Comm. , 2014 UT 3, 322 P.3d 712, ¶ 25 (rejecting Chevron- style deference); Ellis-Hall Consultants v. Pub. Serv. Comm. of Utah , 2016 UT 34, 379 P.3d 1270, ¶ 28 (repudiating its deci sions requiring deference to an agency’s interpretation of its own regulations); Tetra Tech EC, Inc. v. Wisconsin Dept. of
Revenue , 382 Wis.2d 496, 2018 WI 75, 914 N.W.2d 21, ¶ 3, 82-84, fn. 3 (ending its practice of deferring to agency conclusions of law); King v. Mississippi Military Dept. , 245 So.3d 404, 408 (Miss.2018) (abandoning the “old standard of review giving deference to agency interpretations of statutes”); Delcon Partners, L.L.C. v. Wyoming Dept. of Revenue , 2019 WY 106, 450 P.3d 682, ¶ 7 (stating that agency interpretations and applications of the law are not afforded an y deference); Myers v. Yamato Kogyo Co., Ltd. , 2020 Ark. 135, at 5, 597 S.W.3d 613 (clarifying thatS UPREME C OURT OF O HIO

30 because it is the province and duty of a court to determine a s tatute’s meaning, agency interpretations will not be given deference). And at lea st three states have significantly curtailed administrative deference through legisl ation or constitutional amendment. Florida Constitution, Article V, Section 21; Ariz.R ev.Stat.Ann. 12- 910; Wis.Stat.Ann. 227.10. It is past time for this court to t ake up the matter.
Conclusion {¶ 87} The lead opinion reaches the right result. But because I disag ree with the deference it would accord to the commission’s interpre tation of the law, I concur only in its judgment.

_________________ K

ENNEDY , J., concurring in judgment onl y in part and dissenting in part. {¶ 88} Because the Public Utilities Co mmission, appellee, failed to ex plain the statutory and evidentiary bases for its decision to exclude the Distribution Modernization Rider revenue from the significantly-excessive-ea rnings test required by R.C. 4928.143(F), I concur in the majority’s judgme nt reversing the
commission’s decision. But rather than make the determination whether the
commission must include the rider r evenue in the earnings test, I would return this matter to the commission to explain and support its decision as required by our precedent. {¶ 89} The lead opinion, however, would make that dete rmination and discard many of Ohio Edison’s st atutory-construction arguments as not properly before the court. But our duty is to say what the law enacted by the General Assembly is, and we cannot ignore the true meaning of a statute simply because a party failed to assert it below or raised a statutory-construct ion argument for the first time in this court. In addition, a party who is not aggr ieved by the commission’s decision is not required to seek a rehearing or fi le a cross-appeal in order to preserve its arguments for upholding the decision. An d contrary to the leadJanuary Term, 2020

31 opinion, Ohio Edison’s arguments draw upon the plain meaning of R.C. 4928.143(F), and therefore, its arguments have merit. {¶ 90} For the reasons that follow, I dissent from the portion of the majority’s judgment ordering the commission to conduct a new pr oceeding in
which it includes the Distributi on Modernization Rider revenue in the earnings test. The Commission Is Required to Explain Its Decisions {¶ 91} Article IV, Section 2(B)(2)(d) of the Ohio Constitution grants this court “[s]uch revisory jurisdiction of the proceedings of admin istrative officers or agencies as may be conferred by law.” The General Assembly con ferred such appellate power on this court th rough its enactment of R.C. 490 3.13, which provides that “[a] final order made by the public utilities com mission shall be reversed, vacated, or modified b y the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was
unlawful or unreasonable.” {¶ 92} To facilitate this review, R.C. 4903.09 directs the commission to provide “findings of fact and written opinions setting forth th e reasons prompting the decisions arrived at, base d upon said findings of fact.” T he statute “ ‘enable[s]
this court to review the action of the commission without readi ng the voluminous records in Public Utilities Commission cases.’ ” (Brackets add ed.) Tongren v. Pub.
Util. Comm. , 85 Ohio St.3d 87, 89, 706 N.E.2d 1255 (1999), quoting Commercial Motor Freight, Inc. v. Pub. Util. Comm ., 156 Ohio St. 360, 363, 102 N.E.2d 842 (1951). As the United States Supr eme Court has remarked, it is not possible for
this court “to review the law a nd the facts and intelligently d ecide that the findings of the Commission [are] supported by the evidence when the evid ence * * * [is]
unknown and unknowable.” Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio , 301 U.S. 292, 303, 57 S.Ct. 724, 81 L.Ed. 1093 (1937). {¶ 93} R.C. 4903.09 therefore requires th e commission’s orders to cont ain specific findings of fact and conc lusions of law sufficient “to enable [this] court toS UPREME C OURT OF O HIO

32 make its review as to lawfulness and reasonableness.” MCI Telecommunications Corp. v. Pub. Util. Comm. , 32 Ohio St.3d 306, 312, 513 N.E.2d 337 (1987). “In order to meet the requirement s of R.C. 4903.09, * * * the [comm ission’s] order must show, in sufficient detail, the facts in the record upon w hich the order is based, and the reasoning followed by the [commission] in reaching its conclusion.” Id. {¶ 94} This requirement is part and parcel of our standard of review: we will reverse a decision of the commission if it unlawful or unr easonable, and a decision that contravenes R.C. 4903.09 is necessarily unlawful and unreasonable.
See Cleveland Elec. Illum. Co. v. Pub. Util. Comm ., 76 Ohio St.3d 163, 166, 666 N.E.2d 1372 (1996) (“A legion of cases establish that the commi ssion abuses its discretion if it renders an opinion on an issue without record support”); Ideal Transp. Co. v. Pub. Util. Comm. , 42 Ohio St.2d 195, 199, 326 N.E.2d 861 (1975) (a commission order that fails t o comply with the requirements of R.C. 4903.09 is unlawful). {¶ 95} This court has therefore not hesitated to reverse commission
decisions that fail to sufficientl y develop the record or expla in the supporting
rationale. In re Application of Columbus S. Power Co. , 147 Ohio St.3d 439, 2016- Ohio-1608, 67 N.E.3d 734, ¶ 66; In re Application of Ohio Power Co. , 155 Ohio St.3d 326, 2018-Ohio-4698, 121 N.E.3d 320, ¶ 51. {¶ 96} The lead opinion correctly point s out that in excluding the
Distribution Modernization Rider revenue from the significantly -excessiveearnings test, “the commission failed to even cite R.C. 4928.14 3(F), let alone explain how that provision allows the commission to exclude [Di stribution Modernization Rider] revenue on this basis. * * * [T]he commi ssion’s failure to cite specific statutory author ity for its actions is grounds fo r reversal.” Lead opinion at ¶ 20. The lead opinion itself, then, would apply R. C. 4903.09 sub silentio by reversing on the basis that the commission failed to support its order with statutory authority. In addition, the commission’s finding tha t Ohio Edison wouldJanuary Term, 2020

33 face “an unnecessary element of risk” if Distribution Moderniza tion Rider revenue were included in the earnings test lacks any citation to record evidence and is
therefore an insufficient rationale. See Ohio Consumers’ Counsel v. Pub. Util.
Comm. , 111 Ohio St.3d 300, 2006-Ohio-5789, 856 N.E.2d 213, ¶ 28, 36. {¶ 97} Those determinations should end th e analysis, and the court sho uld
reverse the commission’s decision and return this matter to the commission to provide the evidentia ry citations and statutory support needed for us to review its
determination that the Distribu tion Modernization Rider revenue should be excluded from the significantly-excessive-earnings test.
There Is No Jurisdictional Bar to Review {¶ 98} The lead opinion asserts that thi s court’s consid eration of the commission’s compliance with R.C. 4903.09 is jurisdictionally b arred because appellant, Ohio Consumers’ Counsel , failed to raise that issue in its application for rehearing. The lead opinion’s a ssertion that we lack subject-m atter jurisdiction to
review errors not articulated in an application for rehearing, however, is contrary to the statutes establishing our power to review the commission ’s orders. R.C. 4903.13 empowers this court to review the orders of the commiss ion, and it does not limit our subject-matter jurisdiction to the issues present ed by the parties. Rather, we must reverse, vacate , or modify the commission’s ord er if this court “is of the opinion that such order was unlawful or unreasonable.” And any order that is incapable of review because the commission failed to comply with the requirements of R.C. 4903.09 is unlawful and unreasonable. {¶ 99} Neither R.C. 4903.10, which states that “[n]o party shall in an y court urge or rely on any ground for reversal, vacation, or modificat ion not so set forth in the application” for rehearin g, nor R.C. 4903.13, which require s the notice of appeal to “set[] forth the order appeal ed from and the errors complain ed of,” limit this court’s subject-matter jurisdiction to review the lawfulness an d reasonableness of the commission’s decision. These statutes may guide the exercise of ourS UPREME C OURT OF O HIO

34 jurisdiction in reviewing the commission’s decision, and they j ustify this court’s disregarding an argument not asse rted on rehearing or specified in the notice of appeal, but nothing in either of these statutes says that this court is without power or lacks subject-matter jurisdiction to consider issues that ha ve not been properly put before the court when the court is of the opinion that the commission’s order is
unlawful or unreasonable. {¶ 100} I recognize that it has often been said, usually by rote repeti tion, that the appellant’s failure to comply with R.C. 4903.10 or 490 3.13 deprives this court of “jurisdiction” t o consider an issue. E.g ., lead opinion at ¶ 30; In re Complaint of Pilkington N. Am., Inc. , 145 Ohio St.3d 125, 2015-Ohio-4797, 47 N.E.3d 786, ¶ 19; Ohio Consumers’ Counsel v. Pub. Util. Comm. , 127 Ohio St.3d 524, 2010-Ohio-6239, 941 N.E.2d 757, ¶ 21. H owever, we have no ted:

The general term “jurisdiction” can be used to connote several distinct concepts, incl uding jurisdiction over the subj ect matter, jurisdiction over the person, and jurisdiction over a particular case. * * * The often unspecified use of this poly semic word can lead to confusion and has repeatedly required clarific ation as to which type of “jurisdicti on” is applicable in various leg al analyses.

Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18. {¶ 101} Our public-utilities cases have propagated the confusion we hav e so often sought to clarify between the existence of subject-matter jurisdiction and
the exercise of that subject-ma tter jurisdiction. {¶ 102} Subject-matter jurisdiction refers to the constitutional or sta tutory power of a court to adjudicate a particular class or type of ca se. State v. Harper ,January Term, 2020

35 ___ Ohio St.3d ___, 2020-Ohio-2913, ___ N.E.3d___, ¶ 23; Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12, 34. It “is determined without regard to the rights of the individual pa rties involved in a particular case.”
Kuchta at ¶ 19. Rather, the focus is on whether the forum itself is competent to hear the controversy. State v. Harper at ¶ 23. {¶ 103} R.C. 4903.12 provides that “[n]o court other than the supreme c ourt shall have power to review * * * any order made by the public u tilities commission.” This court is the proper forum for this appeal. Nothing in R.C. 4903.10 or 4903.13 purports to limit our subject-matter jurisdiction over an appeal from the commission, and to the extent that this court has held otherwise in prior cases, those cases are irreconcilable with the plain text of th e statutes and must be
overruled. The Significantly-Exces sive-Earnings Test {¶ 104} But rather than return this matter to the commission for it to clarify the factual and statutory suppor t for its decision, the lead op inion would go on to decide whether R.C. 4928.143(F) permitted the commission to exc lude revenue from the Distribution Modernization Rider from the earnings tes t. In doing that, the lead opinion necessarily construes R.C. 4928.143(F). At th e same time, it rejects Ohio Edison’s arguments about what the statute means, s imply because those interpretations of R.C . 4928.143(F) were not addressed be low. {¶ 105} However, the meaning of a statute is a question of law that we
review de novo. See Bur. of Workers’ Comp. v. Verlinger , 153 Ohio St.3d 492, 2018-Ohio-1481, 108 N.E.3d 70, ¶ 6. Our role in the exercise o f the judicial power granted to us by the Ohio Constitution is to interpret and appl y the statute as the General Assembly enacted it

. See Slingluff v. Weaver , 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the s yllabus. The parties may esp ouse arguments regarding the meaning of a statute, but in the end, it is the c ourts that have the authority and the duty to “say what the law is,” Marbury v. Madison , 5 U.S. 137,S UPREME C OURT OF O HIO

36 177, 2 L.Ed. 60 (1803). This court abdicates that responsibili ty if it rejects out of hand an interpretation of a statute just because it is raised f or the first time in this

court. {¶ 106} The lead opinion also rejects Oh io Edison’s plain-language arguments because the commission’s orders did not mention them as bases for the
removal of the rider’s revenue. However, Ohio Edison did not h ave to apply for a rehearing or file a cross-appeal in order to get these argument s before the court. Nor was Ohio Edison aggrieved by the commission’s order—it obta ined the relief sought in this regard—and it th erefore was not required to appl y for a rehearing or file a cross-appeal to preserve any argument. See Internatl. Paper Co. v. Testa , 150 Ohio St.3d 348, 2016-Ohio-7454, 81 N.E.3d 1225, ¶ 33 (explainin g that a protective cross-appeal was not r equired when the appellee is n ot aggrieved by the board of tax appeals’ ruling). R.C. 4903.10 bars a party from seeking “reversal, vacation, or modification” of an order issued by the commission on any ground not set forth in an application for rehearing. But this statute do es not bar a party from seeking the affirmance of the commission’s order for a reason not asserted on rehearing. Further, a notice of appeal may be filed by one see king “reversal, vacation, or modification” of an order issued by the commission . R.C. 4903.13. Ohio Edison, however, asks this court to affirm the commission’s order. {¶ 107} The lead opinion relies on In re Application of Duke Energy Ohio,
Inc ., 148 Ohio St.3d 510, 2016-Ohio-7535, 71 N.E.3d 997, ¶ 23-26, for the assertion that “our practice is not to uphold a commission’s de cision based on a justification asserted by a part y on appeal that is different f rom the justification the commission provided in its order.” Lead opinion at ¶ 47. Howe ver, the court in Duke Energy Ohio relied on R.C. 4903.09, which requires the commission to support its decision with findings and reasons to enable an eff ective appellate review, in declining to review a justification different from t hat which was includedJanuary Term, 2020

37 in the commission’s order. Id . at ¶ 24. Yet here, the lea d opinion expressly would
not reverse and remand the commi ssion’s order as violating R.C. 4903.09. {¶ 108} The lead opinion therefore disr egards Ohio Edison’s arguments explaining why the commission’s ex clusion of the Distribution M odernization Rider revenue from the significantly-excessive-earnings test wa s lawful and reasonable. At the same time, it would not remand this matter to the commission to address those arguments in a written opinion and instead wou ld decide that the rider’s revenue must be included in the test. That is, the jus tices joining the lead opinion and the justice concurring in judgment only take an act ion affecting Ohio Edison’s property interests wit hout any tribunal having ever fu lly addressed its arguments in response. {¶ 109} Nothing in R.C. 4903.09 precludes this court from upholding the commission’s order on grounds other than those the commission p rovided. After all, R.C. 4903.13 empowers us to reverse, vacate, or modify the commission’s final orders, and it does not limit our review of the final order to simply agreeing or disagreeing with the justifications that the commission gave in support of that order. If the commission’s ultimate order is lawful and reasonable, we do not have the power to reverse it. {¶ 110} Therefore, since the court decides to consider the merits of wh ether
the commission’s decision to exclude the Distribution Moderniza tion Rider revenue from the significantly-excessive-earnings test is autho rized by the statute, it must address all arguments regarding what the statute means. {¶ 111} As Ohio Edison points out, R.C. 4928.143(F) directs the commission in conducting the significantly-excessive-earrings t est to base its comparisons on “publicly trade d companies, including utilities, that face comparable business and financial risk,” make “adjustments for capital structure as may be appropriate,” and consider “the capital requirements of future committed
investments in this state.” T he commission found that includin g the DistributionS UPREME C OURT OF O HIO

38 Modernization Rider re venue in the earnings test increased the risk to the companies, and the only relevant risk to the companies under R. C. 4928.143(F) is
business and financial risk. As a creature of statute, the com mission had no authority to consider any other t ype of “risk” than that provid ed by the statute, and the only risk mentioned in the statute is the business and fina ncial risk to the companies. See In re Application of Ohio Edison Co. , 158 Ohio St.3d 27, 2019- Ohio-4196, 139 N.E.3d 875, ¶ 17 (the commission has no authorit y to exceed its statutory powers). {¶ 112} And the Distribution Modernization Rider “was designed to provide credit support for the Fi rstEnergy Corporation—through the companies— so it could borrow capital on more reasonable terms in order to support its gridmodernization initiatives.” In re Ohio Edison Co. , 157 Ohio St.3d 73, 2019-Ohio2401, 131 N.E.3d 906, ¶ 18 (lead opinion). The rider therefore related to Ohio Edison’s capital structure, which includes the amount of and in terest rate on its debt, as well as the cost of capital. See R.C. 4909.155. Lastly, the rider has helped make it possible for Ohio Edison to commit to a grid-modernizat ion plan that will require a capital investment of hundreds of millions of dollars

. See In re Filing by Ohio Edison Co., Cleveland Elec. Illum. Co., & Toledo Edison Co. of a Grid Modernization Business Plan , Pub. Util. Comm. No. 16-481-EL-UNC (Opinion and Order) at ¶ 111-112, 119 (July 17, 2019). {¶ 113} The Distribution Modernization Rider therefore affects Ohio Edison’s financial risk, its capital structure, and the capital requirements for
committed investments in this state, and R.C. 4928.143(F) affor ds the commission discretion to adjust these com ponents as may be appropriate.
Conclusion {¶ 114} It is premature to reach the merits of whether R.C. 4928.143(F) permitted the commission to exclude the Distribution Modernizat ion Rider revenue from the significantly-excessive-earnings test. The commission has failed in itsJanuary Term, 2020

39 duty to sufficiently explain its reasons and support its decisi on with citations to the evidence and statutory authority, and that is reversible error. But the majority goes too far in requiring the commissi on to include the rider’s reve nue in the earnings test. I would return this matter to the commission to explain and support its decision
and save review of the me rits for another day.
F RENCH , J., concurs in the foregoing opinion.

_________________ Bruce Weston, Ohio Consumers’ Counsel, and William Michael, An gela D. O’Brien, and Maureen R. Willis, A ssistant Consumers’ Counsel, f or appellant. Dave A. Yost, Attorney General, and John Jones and Thomas W. McNamee, Assistant Attorney s General, for appellee. Calfee, Halter & Griswold, L.L.P., James F. Lang, and Kari D. Hehmeyer; and FirstEnergy Service Company and Robert M. Endris, for inter vening appellee.

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