CO Code § 40-6-111 (2021)
2021 Colorado Code|Title 40 - Utilities|Article 6 - Hearings and Investigations|§ 40-6-111. Hearing on Schedules - Suspension - New Rates - Rejection of Tariffs

     Whenever there is filed with the commission any tariff or schedule stating any new or changed individual or joint rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation, the commission has power, either upon complaint or upon its own initiative and without complaint, at once, and, if it so orders, without answer or other formal pleadings by the interested public utilities, but upon reasonable notice, to have a hearing concerning the propriety of such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation if it believes that such a hearing is required and that such rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation may be improper.    Pending the hearing and decision on the hearing, in the case of a public utility other than a rail carrier, the rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation must not go into effect; but the period of suspension of the rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation must not extend beyond one hundred twenty days beyond the time when the rate, fare, toll, rental, charge, classification, contract, practice, rule, or regulation would otherwise go into effect unless the commission, in its discretion, and by separate order, extends the period of suspension for a further period not exceeding one hundred thirty days.    Repealed.    Notwithstanding any order of suspension of a proposed increase in electric, gas, or steam rates under this subsection (1), after January 1, 2012, the commission may order, without hearing, interim rates, at any level up to the proposed new rates, to take effect not later than sixty days after the filing for the proposed rate increase. In making a determination as to whether to allow interim rates, the commission shall consider the amount of the revenue deficiency presented by the utility and the extent to which this deficiency would adversely affect the utility during the time period required to hold hearings on the suspended rates.           If a hearing is held thereon, whether completed before or after the expiration of the period of suspension, the commission shall establish the rates, fares, tolls, rentals, charges, classifications, contracts, practices, or rules proposed, in whole or in part, or others in lieu thereof, that it finds just and reasonable. In making such finding in the case of a public utility other than a rail carrier, the commission may consider current, future, or past test periods or any reasonable combination thereof and any other factors that may affect the sufficiency or insufficiency of such rates, fares, tolls, rentals, charges, or classifications during the period the same may be in effect and may consider any factors that influence an adequate supply of energy, encourage energy conservation, or encourage renewable energy development. The commission shall consider the reasonableness of the test period revenue requirements presented by the utility. (a) (I)If a hearing is held thereon, whether completed before or after the expiration of the period of suspension, the commission shall establish the rates, fares, tolls, rentals, charges, classifications, contracts, practices, or rules proposed, in whole or in part, or others in lieu thereof, that it finds just and reasonable. In making such finding in the case of a public utility other than a rail carrier, the commission may consider current, future, or past test periods or any reasonable combination thereof and any other factors that may affect the sufficiency or insufficiency of such rates, fares, tolls, rentals, charges, or classifications during the period the same may be in effect and may consider any factors that influence an adequate supply of energy, encourage energy conservation, or encourage renewable energy development. The commission shall consider the reasonableness of the test period revenue requirements presented by the utility.    If the rates established by the commission after hearing are lower than any interim rates established under paragraph (d) of subsection (1) of this section, then the commission shall order the utility to return to customers on their utility bills through a negative rate rider the difference between the total amount that would have been collected under the final approved rates and the amount collected under the interim rates for the period that the interim rates were in effect, with interest at a rate established by the commission.    All such rates, fares, tolls, rentals, charges, classifications, contracts, practices, or rules not so suspended, on the effective date thereof, which, in the case of a public utility other than a rail carrier, shall not be less than thirty days after the time of filing the same with the commission, or of such lesser time as the commission may grant, shall go into effect and be the established and effective rates, fares, tolls, rentals, charges, classifications, contracts, practices, and rules subject to the power of the commission, after a hearing on its own motion or upon complaint, as provided in this article, to alter or modify the same.       Repealed.    If the commission considers factors which encourage renewable energy development, it shall also make findings and give due consideration to the effect of such factors on the utility's ability to recover its capital and operating costs.       The tariffs and schedules required by this title shall contain such information, and shall be published, filed, and posted in such form and manner, as the commission by regulation shall prescribe; and the commission is authorized to reject any tariff or schedule filed with it which is not in the form required by this section and by such regulations. Any tariff or schedule so rejected by the commission shall be void and its use shall be unlawful.      The provisions of this section relating to suspension of rates, fares, tolls, rentals, charges, classifications, contracts, practices, rules, or regulations pending the hearing and decision thereon shall not apply to cooperative electric associations, but this subsection (4) shall not be construed to exempt such associations from any other provision of this section. Notwithstanding any other provision of law, no cooperative electric association shall establish, charge, or collect a discriminatory or preferential rate, charge, rule, or regulation which would be violative of section 40-3-106 (1) or section 40-3-111. Upon complaint filed by any member or customer of a cooperative electric association or by any affected public utility, the commission shall determine whether the rate, charge, rule, or regulation in question is contrary to this section, section 40-3-106 (1), or section 40-3-111.      Paragraph (a) of this subsection (4) shall not be applicable to a cooperative electric association which has voted to exempt itself from regulation pursuant to the provisions of section 40-9.5-103. Regulation of such cooperative electric associations shall be in the manner provided in article 9.5 of this title. (b) (I) Paragraph (a) of this subsection (4) shall not be applicable to a cooperative electric association which has voted to exempt itself from regulation pursuant to the provisions of section 40-9.5-103. Regulation of such cooperative electric associations shall be in the manner provided in article 9.5 of this title.    Repealed.       and (c.1) Repealed.        History. Source: L. 13: P. 495, § 48. C.L. § 2957. CSA: C. 137, § 48. CRS 53: § 115-6-11. L. 63: P. 760, § 1. C.R.S. 1963: § 115-6-11. L. 69: P. 946, § 43. L. 81: (1) and (2) amended and (4) added, pp. 1914, 1920, 1922, §§ 2, 1, 2, effective July 1. L. 82: (4) amended, p. 587, § 1, effective February 19. L. 83: (4) amended, p. 1572, § 3, effective July 1. L. 84: (1) and (2) amended, p. 1041, § 7, effective July 1. L. 85: (4)(b)(I) amended and (4)(b)(II) repealed, pp. 1301, 1303, §§ 2, 6, effective April 5. L. 89: (3) amended, p. 1531, § 14, effective April 12; (4)(c) and (4)(c.1) added, pp. 1538, 1539, §§ 1, 1, effective April 28. L. 94: (2)(a) amended and (2)(c) added, p. 612, § 4, effective April 8. L. 2000: (1)(c) and (2)(b) repealed, p. 217, § 5, effective March 29. L. 2010: (1)(d) added and (2)(a) amended,(HB 10-1365), ch. 140, p. 475, §§ 2, 3, effective April 19. L. 2019: (1)(b) amended,(SB 19-236), ch. 359, p. 3312, § 17, effective May 30. History. Source: L. 13: P. 495, § 48. C.L. § 2957. CSA: C. 137, § 48. CRS 53: § 115-6-11. L. 63: P. 760, § 1. C.R.S. 1963: § 115-6-11. L. 69: P. 946, § 43. L. 81: (1) and (2) amended and (4) added, pp. 1914, 1920, 1922, §§ 2, 1, 2, effective July 1. L. 82: (4) amended, p. 587, § 1, effective February 19. L. 83: (4) amended, p. 1572, § 3, effective July 1. L. 84: (1) and (2) amended, p. 1041, § 7, effective July 1. L. 85: (4)(b)(I) amended and (4)(b)(II) repealed, pp. 1301, 1303, §§ 2, 6, effective April 5. L. 89: (3) amended, p. 1531, § 14, effective April 12; (4)(c) and (4)(c.1) added, pp. 1538, 1539, §§ 1, 1, effective April 28. L. 94: (2)(a) amended and (2)(c) added, p. 612, § 4, effective April 8. L. 2000: (1)(c) and (2)(b) repealed, p. 217, § 5, effective March 29. L. 2010: (1)(d) added and (2)(a) amended,(HB 10-1365), ch. 140, p. 475, §§ 2, 3, effective April 19. L. 2019: (1)(b) amended,(SB 19-236), ch. 359, p. 3312, § 17, effective May 30.    Editor's note:    Amendments to subsection (2) by House Bill 81-1036 and House Bill 81-1038 were harmonized.    Subsection (4)(c.1) provided for the repeal of subsections (4)(c) and (4)(c.1), effective July 1, 1992. (SeeL. 89, p. 1539.)     Cross references:   For the legislative declaration contained in the 1994 act amending subsection (2)(a) and enacting subsection (2)(c), see section 1 of chapter 102, Session Laws of Colorado 1994.   ANNOTATION   The public utilities commission (PUC) may, in its discretion, conduct a hearing before a proposed tariff is permitted to go into effect but such hearing is not required by statute or rule even though a timely protest was filed. Office of Consumer Counsel v. P.U.C., 752 P.2d 1049 (Colo. 1988).   Abbreviated hearing procedure permitted. Where the commission believes that an economic emergency may exist, and it may permit new rates to become effective without a hearing, participatory values are better served by allowing the commission to conduct a hearing with abbreviated procedures and a limitation on the issues to be considered. Pub. Serv. Co. v. Pub. Utils. Comm'n, 653 P.2d 1117 (Colo. 1982).   New rates not held invalid. There was no merit to the contention that new rates were invalid because the PUC, in not suspending them, improperly permitted them to go into effect without any hearing. Such discretion is delegated to the PUC by the general assembly in § 40-3-104 , and the discretionary power to suspend is set forth in this section. Pub. Utils. Comm'n v. District Court, 186 Colo. 278 , 527 P.2d 233 (1974).   The determination of rate of return must be made by considering, among other things, the degree of risk involved on the part of the investors. The monopoly which the utility enjoys cannot be exerted to the public detriment to impose oppressive rates. Pub. Utils. Comm'n v. Nw. Water Corp., 168 Colo. 154 , 451 P.2d 266 (1969).   This section does not require commission to promulgate revised rates within 210 days following suspension of the rates filed by the utility, but, after the 210 days have elapsed, the utility is entitled to charge the rates originally filed with the commission until such time as the commission enters its rate order. Colo. Ute Elec. Ass'n v. Pub. Utils. Comm'n, 198 Colo. 534 , 602 P.2d 861 (1979).   A federal court may not intervene where the commission suspends rates on an interim basis prior to the exhaustion of state remedies, for the necessity for exhaustion of administrative remedies has long been recognized, and an application for federal court injunction in a state rate case is premature prior to a review proceeding before the courts of the state, unless such are unreasonably delayed or inadequate. Mtn. States Tel. & Tel. Co. v. Pub. Utils. Comm'n, 345 F. Supp. 80 (D. Colo. 1972 ).   After completion of hearings if no decision is forthcoming, requested increased rates will go into effect as a matter of law and regardless of decision. Mtn. States Tel. & Tel. Co. v. Pub. Utils. Comm'n, 345 F. Supp. 80 (D. Colo. 1972 ).   Section applicable even where existing rates unjust. This section is to be applied in proceedings in which a tariff for a new rate is filed, even where existing rates are unjust under § 40-3-111 . Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152 , 590 P.2d 960 (1979).   The provisions of subsection (2)(a) allow the commission to consider test year data but do not require the consideration of such data. Office of Consumer Counsel v. P.U.C., 752 P.2d 1049 (Colo. 1988).   In adopting rate structures, PUC is not limited to options formally presented by the parties at a hearing or to options supported by quantitative evidence. Rate-making is not an exact science but a legislative function, and quantitative evidence is not the only type of evidence that may support a PUC decision. Furthermore, the duty of the PUC is to adopt fair and reasonable rate structures and it is not limited to options formally presented. Integrated Network Servs. v. PUC, 875 P.2d 1373 (Colo. 1994).   The commission's statutory suspension power is the only power abolished by subsection (4)(a) for the benefit of cooperative electric associations. This section only eases the burden on cooperatives resulting from suspension of rates during the hearing process and does not exempt such cooperatives from commission review of tariffs and charges. Colo. Ute-Elec. v. P.U.C., 760 P.2d 627 (Colo. 1988), appeal dismissed for want of a properly presented federal question, 489 U.S. 1061, 109 S. Ct. 1333, 103 L. Ed. 2d 804 (1989).   Applied in Mtn. States Tel. & Tel. Co. v. Pub. Utils. Comm'n, 195 Colo. 130 , 576 P.2d 544 (1978); City of Loveland v. Pub. Utils. Comm'n, 195 Colo. 298 , 580 P.2d 381 (1978).