[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as In re Complaint of Allied Erecting & Dismantling Co., Inc. v. Ohio Edison Co. , Slip Opinion No. 2021-Ohio-2300.]

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
. 2021-O HIO -2300
I N RE C OMPLAINT OF A LLIED E RECTING & D ISMANTLING C OMPANY , I NC ., A PPELLANT , v. O HIO E DISON C OMPANY , I NTERVENING A PPELLEE ; P UBLIC
U TILITIES C OMMISSION , A PPELLEE
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as In re Complaint of Allied Erecting & Dismantling Co., Inc. v.
Ohio Edison Co. , Slip Opinion No. 2021-Ohio-2300.] Public Utilities—An appellant bears the burden of demonstrating that the Public Utilities Commission’s decision is agains t the manifest weight of the evidence or is clearly unsupported by the record—Orders affirmed. (No. 2014-0008—Submitted May 11, 2021—Decided July 8, 2021.)
A PPEAL from the Public Utilities Co mmission of Ohio, No. 07-905-EL-CS S.

__________________ F ISCHER , J. {¶ 1} Appellant, Allied Erecting & Dismantling Co., Inc. (“Allied”), appeals from orders of appellee, Public Utilities Commission, r equiring Allied to pay for electricity consumed during an almost three-year period in whichS UPREME C OURT OF O HIO

2 intervening appellee, the Ohio Edison Company, failed to bill A llied for one of its
electric meters. Ohio Edison es timated the amount owed based o n Allied’s historical electricity usage, and the commission found that Ohi o Edison had provided sufficient evidence to support the accuracy of its est imates. On appeal, Allied primarily argues that the commission failed to enforce a provision in Ohio Edison’s tariff regarding estimated billing. For the reasons e xplained below, we
hold that Allied has failed to demonstrate reversible error. W e therefore affirm the
commission’s orders.
I. FACTUAL AND PROCEDURAL BACKGROUND A. Allied’s complaint against Ohio Edison {¶ 2} Allied is an industrial contract or with a 250-acre facility in Youngstown, Ohio. In December 2003, a motor-vehicle accident d estroyed one of
Allied’s six electric meters a t its Youngstown facility. When Ohio Edison replaced the damaged meter, it mistaken ly deleted one of Allied’s other, undamaged meters from Ohio Edison’s internal billing system. Although the delet ed meter was functional and remained physically accessible at Allied’s facil ity, Ohio Edison did not read the meter or bill Allied for the electric usage record ed by that meter. In June 2006, Ohio Edison discovered its error, and after an inter nal investigation, it
calculated Allied’s back bill f or the unbilled period—from Febr uary 2004 to January 2007—to be $94,676.58. {¶ 3} In January 2007, Ohio Edison sent Allied the back bill. Allied was surprised by the amount due and la ter filed a complaint with th e commission pursuant R.C. 4905.26. Allied requested (1) an explana tion of the error, (2) an explanation of the back-bill calculation considering Ohio Ediso n’s failure to read the meter for a 2.5-year period, (3) protection against an unwa rranted assessment of interest and late fees, and to the extent that any amount is due, (4) an appropriate payment plan. B. The conflicting evidence adduced at the hearingJanuary Term, 2021

3 {¶ 4} The commission held a two-day hearing on Allied’s complaint. O hio Edison presented Lisa Nentwick, a senior account manager, to te stify about how she had calculated Allied’s back bill. Nentwick explained that when Ohio Edison cannot obtain an actual reading of a meter, it will estimate a customer’s bill based on at least two years of the customer’s historical electric usa ge. According to Nentwick, there are two ways to estimate usage based on histori cal data: (1) taking the lowest usage for each corresponding month from the previous two years or (2) calculating an average usage from the corresponding months from the two previous years. {¶ 5} Regarding Allied’s bill, Nentwick testified that actual reading s were unavailable from February 2004 to June 2006 because the meter w as not in Ohio Edison’s billing system. Therefore, she had had to estimate us age for each of those months. To calculate the estimated usage, Nentwick used a comb ination of the two
methods described above. For the first 12 months of the unbill ed period, she used the lowest usage amount for the corresponding month from the tw o previously available years. For example, to calculate Allied’s bill for J une 2004, she examined Allied’s usage in June 2002 and June 2003 and took the lower of those two numbers. For the other months, Nentwick used the average of th e usage for that month from the two previously available years. After the disco very of Ohio Edison’s error in June 2006, Nentwick took actual readings from the meter for June, July, and August 2006, but estimated usage for the four remaini ng months in 2006. Ohio Edison entered Nentwick’s estimated readings and the three actual readings into its billing system, whic h generated Allied’ s back bill of $94,676.58. {¶ 6} Allied presented Douglas Hull, who testified that Ohio Edison’s estimates and calculations were unreliable and flawed. Hull, a retired Ohio Edison employee, explained that the type of meter at issue here gets r eset only when actual readings are taken. Hull claime d that because Ohio Edison had not read the meter in question from February 2004 to June 2006, the meter had not been reset for 28S UPREME C OURT OF O HIO

4 months. And because the meter had not been reset, Hull testifi ed, the first reading in June 2006—which was 38 kW—must have been the single high for the previous 28 months. Therefore, according to Hull, the demand for each o f the previous 28 months should have been equal to or less than 38 kW a month. H ull concluded that because Nentwick’s estimates ranged from 77 kW to 100 kW a mont h, she had disregarded the actual reading of the meter and overstated the amount of Allied’s
back bill. {¶ 7} Nentwick acknowledged that Ohi o Edison’s first reading after discovering its error was 38 kW and that it used that actual re ading to calculate Allied’s monthly charge for June 2006. But she further testifi ed that the 38 kW reading was not a reliable numbe r to use for any other month. According to Nentwick, the 38 kW reading was less than half of any other rea ding ever recorded by that meter and was likely a result of transcription error by the meter reader or the meter “turn[ing] over” or r esetting during the unbilled per iod.
C. The commission’s order {¶ 8} In its September 2013 opinion and order, the commission first f ound that Ohio Edison had violated Ohio Adm.Code 4901:1-10-05(I) by failing to obtain actual readings of all its meters at least once each calendar y ear. Because Ohio Edison violated this regulation, the commission ordered it to c onduct an internal review of its metering operations and policies and file a repor t of its findings within 90 days of the commission’s order. {¶ 9} Notwithstanding Ohio Edison’s viol ation of the administrative r ule, the commission also found that (1) Ohio Edison had provided suf ficient evidence supporting the accuracy of the estimates in the back bill and ( 2) Allied had not sustained its burden in proving that Ohio Edison’s estimates we re unreasonable. Accordingly, the commission ordered that Ohio Edison establish a 36-month payment plan for Allied to pay the back bill, with no interest or late fees. After theJanuary Term, 2021

5 commission denied Allied’s application for rehearing, Allied ap pealed to this court. Ohio Edison intervened as an appellee. D. Allied files for bankruptcy {¶ 10} In April 2016—one month before the scheduled oral argument in this court—Allied commenced a Chapter 11 bankruptcy case, which stayed this appeal for almost five years. See 145 Ohio St.3d 1465, 2016-Ohio-2911, 49 N.E.3d 1309. In March 2021, Allied notifie d this court that its bankr uptcy case had concluded, and we lifted the stay. 162 Ohio St.3d 1405, 2021-O hio-929, 165 N.E.3d 322. The parties waived oral argument. Id

. II. STANDARD OF REVIEW {¶ 11} “R.C. 4903.13 provides that a [commission] order shall be rever sed, vacated, or modified by this court only when, upon consideratio n of the record, the
court finds the order to be unlawful or unreasonable.” 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 the commission’s decision as to questions of
fact when the record contains su fficient probative evidence to show that the commission’s decision was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misappr ehension, 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 “app ellant bears the burden of demonstrating that the commission’s decision is again st the manifest weight of the evidence or is clearly unsupported by the record. ” Id

. III. ANALYSIS {¶ 12} Throughout its merit brief, Allie d criticizes Ohio Edison for f ailing to keep track of its meters and for allegedly failing to commun icate with Allied about the billing error. The issue before the commission, howe ver, was whether
Ohio Edison’s estimated back bill was fair and reliable. Allie d, as the complainant, had the burden to present suffi cient evidence supporting the al legations in itsS UPREME C OURT OF O HIO

6 complaint. See Grossman v. Pub. Util. Comm. , 5 Ohio St.2d 189, 190, 214 N.E.2d 666 (1966). The commission deter mined that Allied failed to ca rry its burden. On appeal, Allied challenges the c ommission’s orders on two ground s. We conclude that neither justifies reversal. A. Proposition of Law No. 1: whether the commission failed to enforce Ohio Edison’s tariff and R.C. 4905.22 {¶ 13} In its first proposition of law, Allied asserts that the commis sion’s
order was unreasonable and unlawful because the commission fail ed to enforce article VII(F) of Ohio Edison’ s tariff and R.C. 4905.22. Artic le VII(F) of Ohio Edison’s tariff provides:

Estimated Bills: The Company attempts to read meters on a monthly basis but there are occas ions when it is impractical or impossible to do so. In such instances the Company will render an estimated bill based upon past us e of service and estimated cus tomer load characteristics. Where the customer has a load meter and the actual load reading when obtained is less than the estimated lo ad used in billing, the account will be recalculated using the act ual load reading. The recalculated amount will be compared with the amo unt originally billed and the customer will be billed the lesser of the two

amounts.

(Boldface sic.) R.C. 4905.22 provides that all charges for uti lity service “shall be just, reasonable, and not more than the charges allowed by law or order of the public
utilities commission.” {¶ 14} Allied’s argument focuses on the last two sentences of the tari ff provision, which require that when a customer’s actual load met er reading is less than an estimated load used for billing, Ohio Edison must recal culate the accountJanuary Term, 2021

7 using the actual reading. Allied claims that Ohio Edison “disr egarded” actual readings that were less than the estimates Ohio Edison used to calculate the back
bill and therefore violat ed this tariff provision. {¶ 15} Specifically, Allied argues that Hull testified that the actual reading of 38 kW for June 2006 means that 38 kW was the single high dem and for the preceding 28 months during which Ohio Edison had failed to read the meter. Thus, according to Allied, Ohio Edison should have used 38 kW as the actual load reading for each month during that unbilled period and Ohio Edison’s fa ilure to do so violated article VII(F). Allied also asserts that it is irrele vant whether the actual reading of 38 kW was accurate, because the tariff requires only that Ohio Edison charge a customer an actual reading when it is less than the es timate. And the commission’s failure to enforce Ohio Edison’s tariff, Allied ar gues, resulted in unjust and unreasonable char ges in violation of R.C. 4905.22. {¶ 16} For the following reasons, we hold that Allied has not carried its burden of demonstrating error. First, Allied’s insistence that Ohio Edison “disregarded” the “actual readings” for the unbilled period—and therefore violated its tariff—is factually inaccurate. No one from Ohio Edison re ad the meter in question between February 2004 and June 19, 2006. Allied ackno wledges this fact in its brief when it states that “[t]he truth is that the actua l load for the subject period
of time will never be known.” Yet Allied also insists that the actual reading for February 2004 to June 2006 was “equal to or less than 38.0 kW” and that “Ohio Edison’s disregard of the actual load reading of 38 kW is * * * legally improper.” Allied is free to develop theories regarding how Ohio Edison sh ould have calculated the back bill, but it cannot distort the record to p rove a tariff violation. Allied has failed to explain why article VII(F) required Ohio E dison to extend an actual read from a single month—June 2006—to 28 other months wh en there were no readings taken in those months.S UPREME C OURT OF O HIO

8 {¶ 17} Second, the record supports the commission’s determination. During the proceedings below, the parties presented alternative ways to calculate
Allied’s back bill. Ohio Edison used a combination of estimate s and actual readings from the unbilled period. Nentwick—who had been calculating ba ck bills for 18 years—testified that using historical data to estimate a custom er’s consumption during an unbilled period is reasonable because a customer’s pa st usage is the most accurate way to determine what the customer’s consumption was d uring the period for which meter readings are not available. Nentwick also test ified that because Ohio Edison considered historical usage from corresponding mont hs, her estimates accounted for any variations due t o seasonal weather patterns o r similar factors. {¶ 18} In contrast, Allied set forth Hull’s theory that Ohio Edison sh ould have used the 38 kW reading from June 2006 for each of the 28 p revious months. In response to Hull’s theory, Nentwick pointed out that the 38 kW reading was approximately half of any other reading ever recorded by that m eter. Indeed, the lowest reading from 2001 to 2003 was 77 kW, and the actual read ings after June 2006 were 78 kW in July and 84 kW in August. Thus, Nentwick co ncluded that it
would have been unreasonable to assume that Allied’s electricit y usage dramatically decreased for the 28- month period in which Ohio Ed ison failed to read the meter, but then somehow doubl ed when Ohio Edison began read ing the meter again. {¶ 19} Based on the competing evidence, the commission found that Hull ’s lack of experience with estimating bills undercut his credibili ty, that the 38 kW reading was an “outlier,” and that Ohio Edison “provided suffic ient evidence to support the accuracy of the bill estimates.” On appeal, Allied asks us to reweigh the evidence and substitute our judgment for that of the commis sion. Allied, however, has not shown that the commission’s finding was agains t the weight of the evidence, and it is well settled that “this court will not second-guess the commission on questions of fact absent such a showing.” Ohio Consumers’January Term, 2021

9 Counsel v. Pub. Util. Comm. , 114 Ohio St.3d 340, 2007-Ohio-4276, 872 N.E.2d 269, ¶ 29. Because Allied has not established that Ohio Edison violated article VII(F), it has also failed to establish the back-bill charges w ere unjust or
unreasonable under R.C. 4905.22. {¶ 20} Within this proposition of law, Allied also argues that Ohio Ed ison violated its “internal procedures” and “guidelines for rebillin g,” which required Ohio Edison to, among other things, limit a customer’s rebill t o one year’s worth of charges. Allied, however, failed to preserve any argument r egarding Ohio Edison’s internal rebilling procedures. Neither Allied’s appli cation for rehearing nor its notice of appeal mention an alleged violation of Ohio E dison’s guidelines or internal procedures. “[T]he failure to raise the argument at r ehearing and in its notice of appeal precludes this court from considering the argu ment.” Ohio Partners for Affordable Energy v. Pub. Util. Comm. , 115 Ohio St.3d 208, 2007- Ohio-4790, 874 N.E.2d 764, ¶ 17. B. Proposition of Law No. 2: whether ar ticle VII(F) of Ohio Edison’s tariff provided a legal basis for using estimates to generate the back bill. {¶ 21} In its second proposition of law, Allied focuses on the first t wo sentences of article VII(F) of O hio Edison’s tariff, which prov ide:

Estimated Bills: The Company attempts to read meters on a monthly basis but there are occas ions when it is impractical or impossible to do so. In such instances the Company will render an estimated bill based upon past us e of service and estimated cus tomer load characteristics.

(Boldface sic.) Allied argues that article VII(F) authorizes O hio Edison to use estimated billing only when obtaining actual readings is “impractical or impossible.” Allied argues that under the facts here, Ohio Edi son failed to read theS UPREME C OURT OF O HIO

10 meter because of its own malfeasance—not because of any impract icality or impossibility. Allied interprets the “impractical or impossibl e” language as covering situations in which a meter was physically inaccessibl e, such as due to extreme weather conditions. Thus, Allied argues that article V II(F) did not give Ohio Edison “a legal basis” to use estimated billing in this ca se

. {¶ 22} Allied has again failed to carry its burden of demonstrating er ror. As a preliminary matter, Allied did not identify where the commiss ion allegedly concluded that article VII(F) pr ovided the “legal basis” for us ing estimates to generate Ohio Edison’s back bill. The commission merely conclu ded that Ohio Edison did not violate the tariff provision. Allied’s second p roposition of law appears to be in response to one of Ohio Edison’s arguments to the commission that the commission did not expressly rely upon in the orders on app eal. {¶ 23} Regardless, Allied has not proved that article VII(F) prohibite d Ohio Edison from using estimates to cal culate a back bill necessitat ed by the utility’s billing error. We have previously held that back billing is pe rmissible when a utility undercharges a customer due to a meter malfunction. See Norman v. Pub. Util.
Comm. , 62 Ohio St.2d 345, 353, 406 N.E.2d 492 (1980) (noting that th e statutes prohibiting a utility from charging a customer a different rate than that in the utility’s rate schedule require that the utility’s tariff be in terpreted to allow back billing). And although R.C. 4933.28 now limits back billing of residential customers to one year, the legislature has not placed a similar limitation on back billing for nonresidential customers. See id. at 349, 354. {¶ 24} Article VII(F) merely provides that Ohio Edison will “attempt” to read meters monthly but on “occasions when it is impractical or impossible to do so,” it will “render an estimated bill” based on historical use . This provision does not limit or prohibit Ohio Edison’s ability to estimate a back bill for undercharged electric service. If Allied’s interpretation of Ohio Edison’s tariff were correct, thenJanuary Term, 2021

11 Ohio Edison could estimate a customer’s back bill only when it failed to read a meter that was physically inaccessible due to extreme weather o r similar scenarios. {¶ 25} Alternatively, if article VII(F) were applicable, because Ohio Edison had inadvertently deleted the meter from its billing system, it would have been impractical or impossible for the utility to obtain monthly rea dings during the unbilled period. Therefore, Ohio E dison’s use of estimated bil ling was not
inconsistent with t he tariff provision.
IV. CONCLUSION {¶ 26} For the reasons explained above, we hold that Allied has not
demonstrated that the commission erred in deciding the complain t in Ohio Edison’s favor. Ohio Edison back billed Allied using a combination of a ctual readings and estimates based on historical usage, which accounted for season al changes. The
commission found that Ohio Edison’s back bill was reasonable an d supported by reliable evidence, and the commission ordered that Ohio Edison establish a 36- month repayment plan, with no interest or late fees. Allied has not demonstrated
that the commission’s decision was unreasonable or that it viol ated any provision
in Ohio Edison’s tariff. We the refore affirm the commission’s orders.
Orders affirmed.
O’C ONNOR , C.J., and K ENNEDY , D E W INE , D ONNELLY , S TEWART , and
B RUNNER , JJ., concur.

_________________ Eckert, Seamans, Cherin & Mello tt, L.L.C., and Christopher R. O palinski, for appellant. Dave Yost, Attorney General, John H. Jones, Section Chief, and Steven L. Beeler, Assistant Attorney General, for appellee Public Utiliti es Commission of
Ohio. FirstEnergy Service Company, Carrie M. Dunn, and Scott Casto, f or intervening appellee , Ohio Edison Company.S UPREME C OURT OF O HIO

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