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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-AA-275

APARTMENT AND OFFICE BUILDING ASSOCIATION OF METROPOLITAN WASHINGTON,

PETITIONER,

V.

PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA,

RESPONDENT,

and

THE DISTRICT OF COLUMBIA,

THE PEOPLE’S COUNSEL OF THE DISTRICT OF COLUMBIA, and

POTOMAC ELECTRIC POWER COMPANY,

INTERVENORS.

On Petition for Review of Orders

of the Public Service Commission of the District of Columbia 

(FC-1145-17) 

(Argued September 20, 2018 Decided March 7, 2019)

Excetral K. Caldwell, with whom Frann G. Francis was on the brief, for 

petitioner.

Naza N. Shelley, with whom Christopher G. Lipscombe and Richard S. 

Herskovitz were on the brief, for respondent.

James C. McKay, Jr., Senior Assistant Attorney General, with whom Karl A. 

Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor 

General, and Stacy L. Anderson, Acting Deputy Solicitor General, were on the 

brief, for the District of Columbia, intervenor.
2

Zachary C. Schauf, with whom Wendy E. Stark, Kim Hassan, Andrea H. 

Harper, Dennis P. Jamouneau, and David W. DeBruin were on the brief, for

Potomac Electric Power Company, intervenor.

Sandra Mattavous-Frye, People’s Counsel, Karen R. Sistrunk, Deputy 

People’s Counsel, and Travis R. Smith, Sr., Trial Supervisor, filed a statement in 

lieu of brief.

Kristi Singleton was on the brief for amicus curiae, General Services 

Administration, in support of petitioner.

Before FISHER and THOMPSON, Associate Judges, and GREENE, Senior Judge 

of the Superior Court of the District of Columbia.

*

FISHER, Associate Judge: Several powerful storms hit the District of 

Columbia area between 2003 and 2012, causing significant damage to the 

electrical distribution system and leaving many customers without power for long 

periods of time. A task force created in 2013 concluded that the frequency of 

power outages would decrease and consumers of electricity would benefit if 

overhead power lines were moved underground. Office of the Mayor, Gov’t of 

D.C., Mayor’s Power Line Undergrounding Task Force Findings & 

Recommendations at 5-6, 8-10 (Oct. 2013). The Council of the District of 

Columbia (“Council”) decided to authorize this initiative in the Electric Company 

Infrastructure Improvement Financing Act of 2014 (“ECIIFA”), D.C. Code §§ 34-

 *

 Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
3

1311.01–1315.01 (2015 Supp.); see also D.C. Law 20-102 (Act 20-290) (March 3, 

2014). 

This case arises from Public Service Commission (“Commission”) orders 

which approved a plan identifying six electric feeder lines to be placed 

underground. The principal issue is the allocation of costs between commercial 

and residential customers. The Apartment and Office Building Association of 

Metropolitan Washington (“AOBA” or “Petitioner”) asserts that the Commission 

failed to exercise its authority to allocate those costs, that the statute governing 

allocation contravenes the Home Rule Act, and that AOBA’s due process rights 

were violated. We affirm the Commission’s rulings. 

I. Procedural History

Debate concerning allocation of costs between residential and commercial 

customers had occurred in Pepco rate cases well before the undergrounding project 

began. Commercial customers protested that they were being required to subsidize 

services for residential customers. It was estimated that the first phase of the 

Undergrounding Initiative would cost approximately $500 million, and this high 

price tag renewed the debates about subsidization.
4

Sections 34-1313.01 and 34-1313.10 of the 2014 ECIIFA contained 

provisions requiring the Commission to allocate costs “in accordance with” “the 

electric company’s most recent base rate case.” D.C. Code § 34-1313.01(a)(4) 

(2015 Supp.) (the Commission “shall” assess charges for undergrounding “among 

the distribution service customer classes of the electric company in accordance 

with the distribution service customer class cost allocations approved by the 

Commission for the electric company and in effect pursuant to the most recent base 

rate case”); § 34-1313.10(c)(1) (2015 Supp.) (the Commission “shall” authorize 

the electric company to collect charges “in accordance with the distribution service 

customer class cost allocations approved by the Commission for the electric 

company and in the electric company’s most recent base rate case”).

1 In these 

provisions, the term “distribution service customer class cost allocations” was used 

 1

 Nearly identical allocation provisions are in the current statute as amended 

in July 2017. D.C. Code § 34.1313.01(a)(3) (2018 Supp.) (the Commission “shall” 

assess charges for undergrounding “among the distribution service customer 

classes of the electric company in accordance with the distribution service 

customer class cost allocations approved by the Commission for the electric 

company and in effect pursuant to the electric company’s most recently decided 

base rate case”); D.C. Code § 34-1313.10(c)(1) (2018 Supp.) (the Commission 

“shall” authorize the electric company to collect charges for the underground 

project “in accordance with the distribution service customer class cost allocations 

approved by the Commission for the electric company and in the electric 

company’s most recent base rate case”).
5

but not defined, which led to confusion. Id.; see also D.C. Code § 34-1311.01 

(2015 Supp.). 

The Commission’s first effort to allocate these costs, Formal Case Nos. 

1116 and 1121, generated an appeal. AOBA challenged the Commission’s cost 

allocation decisions and argued that the Commission had misconstrued the 

disputed term. Apartment & Office Bldg. Ass’n of Metro. Washington v. Pub. Serv. 

Comm’n of the District of Columbia, 129 A.3d 925, 929 (D.C. 2016). 

In 2015, after AOBA submitted its initial brief in the previous appeal, the 

Council amended ECIIFA to include a definition of “distribution service customer 

class cost allocations.” Id.; see also D.C. Code § 34-1311.01(8A) (2018 Supp.). 

We held that the newly amended statute applied to the pending appeal. 129 A.3d 

at 931. In addition, we held that the amended statute required the cost allocation to 

“be made on the basis of the total rate class distribution service revenue approved 

by the Commission in the most recent base rate case, minus the customer charge 

revenue approved by the Commission in the most recent base rate case.” Id. at 934

(citing D.C. Code § 34-1313.01(a)(4); § 34-1313.01(c)(1); § 34-1311.01(8A)). In 

other words, “the amended statute directs the Commission to take as a given the 

allocation of costs in the most recent base rate case.” Id.
6

This court emphasized that the Council’s “directive [did] not leave room for 

the Commission in the undergrounding proceedings to independently address 

issues of subsidization.” Id. We noted, however, that the Commission’s allocation 

of costs in future base rate cases “could well affect the allocation of costs in future 

orders issued in connection with the undergrounding project.” Id. (citing D.C. 

Code § 34-1313.01(a)(4)). 

The project did not go forward at that time and the Council amended

ECIIFA again effective July 11, 2017, to modify a portion of the funding structure. 

See D.C. Code §§ 34-1311.01–1315.01 (2018 Supp.). Under the statute, the 

Potomac Electric Power Company (“Pepco”) and the District of Columbia 

Department of Transportation (“DDOT”) are required to jointly file every two 

years an application for the Commission’s approval consisting of a Biennial 

Underground Infrastructure Improvement Projects Plan and a Financing Order. 

D.C. Code § 34-1313.07(a) (Oct. 2017 Supp.). The Commission “may hold in 

abeyance or waive the obligation to file an application for approval” upon a finding

of good cause as judged by certain enumerated criteria. Id. at § 34-1313.07(d). 
7

Pepco and DDOT submitted their Joint Application to the Commission on 

July 3, 2017, initiating Formal Case No. 1145. They updated that application in 

August 2017. The Commission ultimately approved the proposed plan and denied

motions for reconsideration.

2

 Petitioner AOBA now challenges these and related 

orders. Pepco, the District of Columbia, and the Office of People’s Counsel 

(“OPC”) intervened in the case before this court, supporting the Commission.

II. Standard of Review

This court has jurisdiction to hear appeals from certain orders of the Public 

Service Commission of the District of Columbia. D.C. Code § 34-605 (2012 

Repl.). Under D.C. Code § 34-606 (2012 Repl.), our scope of review is “limited to 

questions of law, including constitutional questions; and the findings of fact by the 

Commission shall be conclusive unless it shall appear that such findings . . . are

unreasonable, arbitrary, or capricious.” 

 2 The Commission issued the following orders in this proceeding: Order 

No. 19806 on September 6, 2017 (incorporating records from Formal Case Nos. 

1116 and 1121 (the prior undergrounding proceeding) into the record for Formal 

Case No. 1145 over AOBA’s objection); Order No. 19144 on October 20, 2017 

(denying AOBA’s request for a hearing); Order No. 19167 on November 9, 2017 

(approving the proposed plan submitted by Pepco and DDOT); Order No. 19212 

on December 20, 2017 (denying AOBA’s first application for reconsideration); 

Order No. 19237 on January 18, 2018 (denying AOBA’s second application for 

reconsideration). 
8

This court reviews issues of statutory interpretation de novo. Myerson v. 

United States, 98 A.3d 192, 197 (D.C. 2014). In reviewing the Commission’s 

orders, we must affirm “[i]f there is ‘substantial evidence to support the 

Commission’s findings and conclusions and the Commission has given reasoned 

consideration to each of the pertinent factors.’” 129 A.3d at 930 (citing Potomac 

Elec. Power Co. v. Pub. Serv. Comm’n of D.C., 457 A.2d 776, 782 (D.C. 1983)). 

“Even if the court disagrees with the Commission, if the Commission has fully and 

clearly explained what it does and why it does it, and the agency decision is 

supported by substantial evidence, the court, upon a finding that the Commission 

order is reasonable in its overall effect, must sustain the order.” 457 A.2d at 783-

84 (citing Washington Gas Light Co. v. Pub. Serv. Comm’n of the District of 

Columbia, 450 A.2d 1187 (D.C. 1982)).

III. Analysis

A. The Commission May Not Depart From the Allocation Structure in the 

Amended ECIIFA
9

AOBA contends that, ECIIFA notwithstanding, the Commission had 

discretion to address subsidization issues when allocating undergrounding costs

and that it should have done so in this instance. However, the Commission 

recognized in Order Nos. 19167 and 19237 that the allocation of costs had been

fixed in the “unequivocal statutory directive” of the amended ECIIFA. It had “no 

authority to alter the statutorily mandated allocation structure in the context of this 

proceeding”—the allocation of costs “must be in accordance with the allocation

approved in Pepco’s most recent base rate case.” Because the proposed charges 

complied with the allocation structure in the amended ECIIFA, the Commission 

found that they were “just and reasonable.”

AOBA disputes the Commission’s view that it has no discretion to alter the 

allocation structure approved in Pepco’s most recent base rate case. But this issue 

has already been litigated and decided. As explained above, this court ruled in the 

prior appeal that the statute “[did] not leave room for the Commission in the 

undergrounding proceedings to independently address issues of subsidization.” 

129 A.3d at 934. Under well-established principles of res judicata, this court will

not consider that issue anew.3

 

 3

 “In determining whether res judicata applies, ‘[w]e consider (1) whether 

the claim was adjudicated finally in the first action; (2) whether the present claim 

(continued...)
10

Seeking to avoid this conclusion, AOBA claims that this language from our 

previous opinion was simply dictum because the issue of whether the Commission 

could depart from this allocation structure was not before this court at that time. 

That assertion is mistaken. In the prior case, AOBA asked us to remand so the 

Commission could determine the impact of the amended statute’s definition of 

“distribution service customer class cost allocations.” This court explained that 

remand was “pointless” because “the amendment unambiguously adopted what the 

Commission had already done in the orders under review [and] [i]t is highly 

implausible that the Commission would do anything on remand other than reaffirm 

the conclusion it had already reached.” 129 A.3d at 933 (citing Le Chic Taxicab 

Co. v. District of Columbia Taxicab Comm’n, 614 A.2d 943, 945 (D.C. 1992); BioMed. Applications of the District of Columbia v. District of Columbia Bd. of 

Appeals & Review, 829 A.2d 208, 217 (D.C. 2003)). Therefore, the issue was 

squarely before the court in the previous appeal. We held that the language in the 

 

(...continued)

is the same as the claim which was raised or which might have been raised in the 

prior proceeding; and (3) whether the party against whom the plea is asserted was a 

party or in privity with a party in the prior case.’” Calomiris v. Calomiris, 3 A.3d 

1186, 1190 (D.C. 2010) (citing Elwell v. Elwell, 947 A.2d 1136, 1140 (D.C. 

2008)).
11

statute is clear and the Commission may not depart from the allocation formula set 

forth therein. 

B. The Amended ECIIFA Does Not Contravene the Home Rule Act

Petitioner argues in the alternative that if the amended ECIIFA does deprive 

the Commission of discretion to allocate the costs of undergrounding, the statute is

“unconstitutional” because it violates the Home Rule Act. The Commission 

declined to address this issue, invoking “well established law that state agencies do 

not have the jurisdiction to review the constitutionality of statutes.” AOBA did not 

present this argument to the Commission in connection with the previous 

application or to this court in the prior appeal.4

 4 As demonstrated above, the language which tied allocations of costs to the 

previous base rate case was in the original Act, and AOBA could have presented

its “constitutionality” argument to the Commission in the prior proceeding. But 

even if AOBA had done so, that effort would have been futile. The Commission 

would have reached the same conclusion that it did not have jurisdiction to review 

the issue. See District of Columbia Hous. Auth. v. District of Columbia Office of 

Human Rights, 881 A.2d 600, 613 n.18 (D.C. 2005) (explaining that a party has 

not waived a claim when it “clearly would have been futile to raise the claim in the 

agency venue”) (citing Washington Ass’n for Television & Children v. FCC, 712 

F.2d 677, 682 (D.C. Cir. 1983)). The 2015 amendment of ECIIFA went into effect 

after AOBA filed its initial brief in the prior appeal. AOBA argued that the 

amendment did not apply retroactively, but it did not claim that the original Act or 

the amended version was “unconstitutional.” 
12

1. The Home Rule Act

The United States Constitution confers upon Congress plenary power to 

legislate for the District of Columbia. U.S. Const. art. I, § 8, cl. 17 (“The Congress 

shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, 

over the . . . Seat of the Government of the United States.”). However, in 1973 

Congress enacted the Home Rule Act, set forth in Title I, Chapter II of the D.C. 

Code, to “grant to the inhabitants of the District of Columbia powers of local selfgovernment.” D.C. Code § 1-201.02(a) (2012 Repl.); see Woodroof v.

Cunningham, 147 A.3d 777, 782 (D.C. 2016) (discussing legislative history of the 

Home Rule Act). While reserving to itself “the right, at any time, to exercise its 

constitutional authority as legislature for the District,” D.C. Code § 1-206.01 (2012 

Repl.), Congress delegated broad legislative power to the Council of the District of 

Columbia. “[T]he legislative power of the District shall extend to all rightful 

subjects of legislation within the District . . . .” D.C. Code § 1-203.02 (2012 

Repl.). 

Notwithstanding this broad delegation of power, section 602 of the Home 

Rule Act prohibits the Council from legislating on certain subjects. See, e.g., D.C. 

Code § 1-206.02(a)(1) (2012 Repl.) (the Council “shall have no authority” to 
13

“[i]mpose any tax on property of the United States”); D.C. Code § 1-206.02(a)(5)

(2012 Repl.) (the Council “shall have no authority” to enact a so-called commuter 

tax on the income of persons who do not reside in the District). We have held that 

these express limitations on the Council must be construed narrowly “so as not to 

thwart the paramount purpose of the [Home Rule Act], namely, to grant the 

inhabitants of the District of Columbia powers of local self-government.” 

Woodroof, 147 A.3d at 784 (citing Andrew v. Am. Imp. Ctr., 110 A.3d 626, 629 

(D.C. 2015)). There is no provision stating that the Council “shall have no 

authority” to legislate on matters regulated by the Public Service Commission. 5 

2. The District Charter

But Congress limited the power of the Council in another important manner. 

Subchapter IV of the Home Rule Act, known as the District Charter, establishes 

the structure of governance for the District of Columbia. See D.C. Code §§ 1-

 5

 Petitioner argues that the legislative history of the Home Rule Act 

supports the conclusion that the Council was prohibited from enacting the amended 

ECIIFA. When drafting the Home Rule Act, legislators discussed the independent 

decision-making authority of the Commission. However, the discussions of the 

committee members reported in the legislative history give no clear guidance as to 

what types of direction from the Council related to rates and surcharges would 

constitute impermissible interference with the independence of the Commission. 
14

204.01–204.115 (2012 Repl.). The Council acting alone cannot amend the 

Charter. To make such an amendment, an act passed by the Council must be 

ratified by a majority of voters through a referendum. D.C. Code § 1-203.03(a)

(2012 Repl.).

In many ways, the Charter acts as a constitution for the District of 

Columbia, and AOBA uses the word “unconstitutional” in arguing that the 

allocation directives in the ECIIFA statute are void. The core of Petitioner’s 

argument is that the independence of the Public Service Commission is protected 

by the Charter and that the amended 2017 ECIIFA is invalid because it purports to 

change the authority of the Commission to allocate costs. Petitioner asserts that 

the Council has in effect amended the Charter without submitting that question to 

the voters in a referendum.

3. The Commission

Congress created the Public Utilities Commission in the District of 

Columbia Appropriations Act of 1913, which assigned various responsibilities and 

functions to the Commission. See 37 Stat. 974, ch. 150, § 8, par. 1, 97 (1913). 

This agency was renamed the Public Service Commission in 1964. Pub. L. No. 
15

88-503, § 21, 78 Stat. 634 (1964). While erecting the structure of Home Rule 

government for the District, the Charter preserved the Commission and briefly 

described its function.

There shall be a Public Service Commission whose 

function shall be to insure that every public utility doing 

business within the District of Columbia is required to 

furnish service and facilities reasonably safe and 

adequate and in all respects just and reasonable. The 

charge made by any such public utility for any facility or 

services furnished, or rendered, or to be furnished or 

rendered, shall be reasonable, just, and 

nondiscriminatory. Every unjust or unreasonable or 

discriminating charge for such facility or service is 

prohibited and is hereby declared unlawful.

D.C. Code § 1-204.93 (2012 Repl.). The second and third sentences of Section 

493 were taken from the second paragraph of the Public Utilities Act of 1913. See 

37 Stat. 974, ch. 150, § 8, par. 2 (1913).

The enactment of Section 493 did more than simply continue the 

Commission in existence, however. By placing this provision in the Charter, 

Congress insulated Section 493 from repeal or amendment by ordinary legislation

of the Council. In the Charter, Congress also designated the Commission as one of 

five Independent Agencies. See 87 Stat. 774, §§ 491-95 (1973). AOBA asserts 
16

that the Council’s “allocation of Undergrounding Charges conflicts with the 

Commission’s independent and exclusive obligation to ‘insure’ that ‘every’ charge 

levied by Pepco is just, reasonable, and nondiscriminatory.” In other words, 

AOBA says, “the Council has fundamentally altered the function of the 

Commission and this fundamental alteration, in turn, has violated the Charter.” 

Although the brief of the District of Columbia takes an expansive view of 

the Council’s power in the field of utility regulation, it acknowledges that, by 

placing Section 493 in the Charter, Congress “preclude[d] the Council, by ordinary 

legislation . . . , from abolishing the Commission or altering its basic functions of 

ensuring that public utilities ‘furnish service and facilities reasonably safe and 

adequate and in all respects just and reasonable.’” Pepco agrees that “the Council 

might run afoul of [§ 493] if it eliminated the PSC or vested the PSC’s ‘function’ 

of regulating utilities in some other agency.” 

But ECIIFA did not change a single word of Section 493, so the question 

presented here is whether there has been a “constructive” amendment of this 

Charter provision. AOBA’s arguments in favor of that conclusion depend in large 

part on a misguided view of what it means to be an “independent” agency. 

Congress and state legislatures routinely specify how independent agencies must 
17

go about their work. Focusing on the local scene, the three sentences of Section 

493 have never been deemed sufficient to govern the complex field of utility 

regulation. Even a brief review of the D.C. Code demonstrates that the 

Commission does not work in isolation, without direction or assistance from the 

legislature. 

The Public Utilities Act of 1913 granted the Commission its ratemaking 

authority. 37 Stat. 974, ch. 150, § 8, par. 24, 38-45 (1913). These provisions 

survive to the present day (outside the Charter), see D.C. Code §§ 34-1123, 34-

908, 34-910–34-916 (2012 Repl.), and are subject to amendment through the 

legislative power delegated to the Council under the Home Rule Act. See D.C. 

Code §§ 1-201.02, 1-203.02, 1-204.01–204.13 (2012 Repl.) (Congress provided a 

general grant of legislative authority allowing the Council to perform its core 

legislative function).

Title 43 of the D.C. Code, entitled “public utilities,” existed before Home 

Rule. See generally D.C. Code §§ 43-201–43-422 (1973) (prescribing the number 

of Commissioners and how they were to be appointed; designing the organization 

of the Commission; and declaring the Commission’s authority with respect to

rates, examinations, investigations, and hearings). D.C. Code § 43-301 (1973) was
18

almost identical to the current Section 493, mandating that charges “shall be 

reasonable, just, and nondiscriminatory.” A multitude of laws giving the 

Commission its authority and regulating its operations existed prior to Home Rule

and remain in effect today.

6

 

The question presented here is whether the Council went too far by enacting 

the 2015 and 2017 ECIIFA amendments. There is not much case law to guide us.

Addressing different legislation affecting the Commission, the United States 

 6

 See, e.g., §§ 43-201 (1973), 43-401 (1981), 34-801 (2012 Repl.) 

(specifying the organization of the Commission and establishing the process for 

appointing commissioners); §§ 43-206 (1973), 43-408 (1981), 34-806 (2012 Repl.) 

(permitting the Commission to hire employees and incur expenses); D.C. Code §§ 

43-303 (1973), 43-503 (1981), 34-1103 (2012 Repl.) (granting the Commission 

authority to compel public utilities to comply with laws and regulations); §§ 43-

306 (1973), 43-506 (1981), 34-1106 (2012 Repl.) (telling the Commission how to 

value property of every public utility); §§ 43-317 (1973), 43-517 (1981), 34-1117 

(2012 Repl.) (permitting the Commission to allow a sliding scale of rates and 

dividends); §§ 43-319 (1973), 43-519 (1981), 34-1119 (2012 Repl.) (requiring the 

Commission to publish annual reports); §§ 43-401 (1973), 43-601 (1981), 34-901 

(2012 Repl.) (outlining the process for parties to file applications to change 

existing rates); §§ 43-408 (1973), 43-608 (1981), 34-908 (2012 Repl.) (authorizing 

the Commission to investigate unreasonable or unjustly discriminatory rates on its 

own initiative or upon reasonable complaint); §§ 43-411 (1973), 43-611 (1981), 

34-911 (2012 Repl.) (authorizing the Commission to determine and substitute just 

and reasonable rates upon such investigation); §§ 43-601 (1973), 43-1001 (1981), 

34-301 (2012 Repl.) (conferring general powers upon the Commission); §§ 43-906 

(1973), 43-306 (1981), 34-706 (2012 Repl.) (authorizing the imposition of 

penalties for failure to comply with Commission orders).
19

District Court for the District of Columbia considered what types of actions would 

constitute a charter amendment. 

Charter amendments . . . refer to actions which, like state 

constitutional amendments, fundamentally change the 

nature of the system of government. . . . Though the Act 

does involve some changes concerning the structure of 

the Public Service Commission, these changes do not in 

any significant way alter the structure or manner in which 

the Public Service Commission operates; its basic 

mission remains intact.

Potomac Elec. Power Co. v. District of Columbia Gov’t, 651 F. Supp. 907, 910-11 

(D.D.C. 1986) (discussing the Utility Regulatory Assessment and Clarification Act

of 1984, which made clear that the Office of People’s Counsel has “independent 

authority” (with oversight from the Commission) to investigate utilities, compel 

production of information, and make assessments for expenses). The court was 

concerned that adopting too rigid a view of what constitutes a charter amendment 

“would strip local legislators of any real flexibility to deal with emerging 

problems.” Id. at 911. While this opinion is not binding on us, the District Court’s 

analysis is helpful.

4. The Impact of ECIIFA
20

With this background in mind, we turn to the legislation at issue here. In a 

“base rate case” the Commission identifies how much revenue Pepco requires and 

decides how to allocate that requirement between Pepco’s customer classes, 

commercial and residential. See 129 A.3d at 928. This case is about a surcharge, 

not the base rate itself, but the process is similar, addressing both cost and 

allocation. We do not attach any significance to the term “surcharge” because 

Section 493 requires the “charge” made by a public utility to be “reasonable, just, 

and nondiscriminatory,” seemingly encompassing both rates and surcharges.

Although the Undergrounding Project carries a hefty price tag, AOBA 

asserts that “[w]hether Pepco facilities will or will not be relocated underground is

not at issue in this appeal.” Moreover, we are told, “[t]his appeal . . . is not about 

the amount of the Undergrounding Charges, but about the allocation of [those 

charges].” But Petitioner admits that its long-range concern is more 

comprehensive. AOBA clarifies that its challenge to the 2017 ECIIFA is targeted 

at “the impact of the cost allocation provisions on the Commission’s ratemaking

authority.” It fears that if we approve the legislation at issue here, “the elected 

Council, in the name of expediency, efficiency and cost-effectiveness, – or more 

disturbing[,] for purely political reasons – will now be able to enact legislation 

mandating not only cost allocations, but the establishment of specific rates to be 
21

charged for utility services.” Nothing we say today is intended to endorse that 

result.

Nevertheless, resolving this case does not require us to explore the outer 

limits of the Council’s authority to regulate public utilities. We focus, instead, on 

the immediate, practical effect of the legislative directive. By statute, and for good 

reason, decisions in undergrounding cases are to be expedited. D.C. Code §§ 34-

1313.09(b)(1), (d); 34-1313.17 (2018 Supp.). The modest effect of the ECIIFA 

amendments is to streamline procedure by precluding constant relitigation of 

allocation issues in both base rate cases (which may occur every year) and 

undergrounding proceedings (every two years). In the Commission’s own view, 

the purpose of ECIIFA’s requirements “is not to undermine the Commission’s 

independent ratemaking authority, but to build in the administrative efficiencies 

needed to facilitate timely implementation of a project of this scale and 

importance.” 

It is important to recognize that the Council has not dictated an allocation of 

its own design, but rather has instructed the Commission to apply the allocation 

that it adopted in the most recent base rate proceeding. Furthermore, that 

allocation is transitory. The Commission is free to change the allocation of those 
22

costs in subsequent base rate cases. As we noted in the previous appeal, the 

Commission’s allocation of costs in future base rate cases “could well affect the 

allocation of costs in future orders issued in connection with the undergrounding 

project.” 129 A.3d at 934 (citing D.C. Code § 34-1313.01(a)(4)).7

We reiterate that ECIIFA did not change a single word in Section 493. Nor, 

for the reasons explained, does it usurp the function of the Commission. We 

therefore hold that the cost allocation provisions of ECIIFA do not violate the 

Home Rule Act.

C. AOBA’s Due Process Rights Were Not Violated

AOBA asserts that its due process rights were violated when the 

Commission denied an evidentiary hearing. As a general matter, the Commission 

is required to hold a hearing if there is a dispute concerning a material fact, but not 

if the only dispute involves issues of law or policy. Watergate East, Inc. v. District 

 7

 In fact, the Commission approved a different base rate on August 9, 2018, 

a proceeding in which AOBA was a party. That case was resolved when the 

Commission approved a non-unanimous settlement agreement. See Formal Case 

No. 1150, Order No. 19433, 2018 WL 3830911 (Aug. 9, 2018). That agreement 

included a moratorium until May 1, 2019, during which Pepco cannot file for a rate 

increase. Presumably, AOBA will be able to raise allocation/subsidization issues 

and undergrounding costs in the next base rate case. 
23

of Columbia Public Serv. Comm’n, 662 A.2d 881, 890 (D.C. 1995). More 

specifically, when it considers an undergrounding plan or a related application for 

financing, a “formal evidentiary hearing shall be required only if contested issues 

of material fact are present and those issues cannot be resolved by the Commission 

based on the pleadings and discovery responses filed, if any, in the matter.” D.C. 

Code § 34-1313.03(b)(2) (2018 Supp.); see also id., § 1313.09(c)(2) (nearly 

identical language). 

AOBA asserted before the Commission that there were three material 

issues: “(1) rate shock; (2) customer transfers in the true-up process; and (3) feeder 

selection methodology.” On October 20, 2017, the Commission issued Order No. 

19144 in which it denied the hearing request, holding that AOBA had not 

“identified any contested issues of material fact requiring an evidentiary hearing

and that, in any event, all issues identified by AOBA can be resolved on the 

pleadings and discovery responses.” The Commission addressed each of AOBA’s 

assertions, explaining that they were not really disputes of fact but more in the 

nature of policy concerns. In addition, the Commission noted that these issues had 

already been litigated in Formal Case Nos. 1139 and 1116.

8

 8 In Formal Case No. 1139, the base rate case prior to this appeal, the 

Commission considered issues related to commercial class subsidization of 

(continued...)
24

AOBA also contends it was a due process violation to deny an evidentiary 

hearing to address a directive in which the General Services Administration 

(“GSA”) initially told federal agencies not to pay the undergrounding charges. 

This turned out to be a false alarm. GSA pointed out in its amicus brief to this 

court that “federal agencies are paying those charges, subject to GSA’s objection to 

the DDOT Surcharge and a reservation of rights to further contest the surcharge.” 

Whatever the effect of that “objection” and “reservation” may be, it seems that 

federal agencies were paying the charges and that they continue to do so. There 

was no “shortfall” in collections that would have to be made up by commercial 

customers. Furthermore, the statute makes clear what should happen in such 

 

(...continued)

residential class costs, concluded that the proposed rate adjustments were just and 

reasonable “for all Pepco customers in the District of Columbia,” and discussed the 

fact that the costs of the undergrounding project had not yet had an impact on rates. 

See Order 18846, 2017 WL 3333815, at *3, *147 (July 25, 2017). In Formal Case 

No. 1116, the Commission applied the 2014 ECIIFA and concluded that the 

undergrounding project charges were just and reasonable. See Order No. 17697, 

2014 WL 6603082, at *67, *83, *100-01 (Nov. 12, 2014). As mentioned above, 

the project did not go forward at that time and Pepco and DDOT submitted a new 

Joint Application to the Commission in July 2017. 
25

circumstances. See D.C. Code § 34-1313.14(f)(1) (2018 Supp.). There was no

need for an evidentiary hearing on this point.

9

AOBA’s argument that the Commission applied an incorrect standard in 

determining that there was no need for an evidentiary hearing is misguided. The 

Commission’s decision was not a “summary dismissal,” and the standards for 

granting summary judgment in a civil case did not apply. Indeed, the ECIIFA 

provides its own standard for determining whether the Commission should hold a 

hearing before deciding the issues on their merits. See D.C. Code §§ 34-

1313.03(b)(2); 34-1313.09(c)(2) (2018 Supp.). When it did address the merits, the 

Commission gave reasoned consideration to each of the issues raised by AOBA 

and explained its decision in its Order. The record thus refutes AOBA’s claim that 

it was denied due process.

D. Additional Matters

 9

 Proffering testimony from an expert witness, Bruce Oliver, petitioner 

attached a detailed summary of his testimony (in question and answer form) to its 

request for a hearing. In both the Order denying AOBA’s request for a hearing 

(No. 19144) and its Order approving the joint application (No. 19167), the 

Commission cited to and summarized this testimony, demonstrating that any 

material issues raised by AOBA could be resolved on the pleadings and discovery 

responses alone. No other witnesses were proffered by petitioner, but Pepco and 

DDOT proffered the testimony of several witnesses in the same manner and their

testimony was referred to in Order No. 19167. 
26

Two additional issues deserve only brief mention. GSA, as amicus, argues 

that the Commission’s decision to incorporate records from the previous 

undergrounding proceedings violated due process rights. However, GSA is not a 

party to this appeal and AOBA did not raise this claim in its statement of issues 

presented or the argument section of its initial brief to this court. “[A]n amicus 

curiae must take the case as he finds it, with the issues made by the principal 

parties.” Givens v. Goldstein, 52 A.2d 725, 726 (D.C. 1947). In any event, neither 

GSA nor AOBA has identified a single document that was incorporated into the 

record of Formal Case No. 1145 and relied upon by the Commission in violation 

of their due process rights.

AOBA complains that the Commission’s public interest finding is not 

supported by substantial evidence, but it did not present this complaint to the 

Commission in its Applications for Reconsideration. See D.C. Code § 34-604 

(2012 Repl.) (“No public utility or other person or corporation shall in any court 

urge or rely on any ground not so set forth in said application.”). This issue is not 

properly before us.

IV. Conclusion
27

We adhere to our previous decision that the Commission may not depart 

from the allocation formula prescribed in the statute. We further hold that the 2015 

and 2017 amendments to the Electric Company Infrastructure Improvement 

Financing Act of 2014 do not violate the Home Rule Act. In addition, AOBA’s 

due process rights were not violated. The orders of the Public Service Commission 

are 

Affirmed.