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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); Bio-

Med. 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 self-

government.” 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.
