MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2014 ME 56
Docket:   PUC-13-277
Argued:   January 14, 2014
Decided:  April 8, 2014

Panel:       SAUFLEY, C.J., and, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.



                      CENTRAL MAINE POWER COMPANY

                                           v.

                        PUBLIC UTILITIES COMMISSION


SAUFLEY, C.J.

         [¶1] Central Maine Power Company appeals from a decision of the Public

Utilities Commission in which the Commission found that, from 2008 to 2010,

CMP had applied nearly $2.6 million worth of customer deposits to debts owed on

its own transmission-and-distribution services when that portion of the deposits

should have been applied to debts owed for standard-offer service. CMP’s central

arguments are that (A) the Commission misinterpreted the governing statutes and

regulations, (B) the Commission lacked the authority to apply its new

interpretation retroactively because CMP had not had fair notice of that

interpretation, and (C) the decision constituted improper retroactive ratemaking.

We affirm the Commission’s decision.
2

                                          I. BACKGROUND

          [¶2] In 1999 and 2000, the Legislature substantially changed the regulation

of Maine’s electricity industry. See P.L. 1999, chs. 398 (varying effective dates),

657 (effective Apr. 10, 2000); Houlton Water Co. v. Pub. Utils. Comm’n, 2014 ME

38, ¶¶ 3-6, --- A.3d ---. To effectuate the Maine Legislature’s goal of encouraging

competition and innovation in the generation of electrical power, the amended

Electric Industry Restructuring Act separates the generation of electricity from its

transmission and delivery (T&D). 1 See 35-A M.R.S. §§ 3202, 3203 (2013);

Houlton Water Co. v. Pub. Utils. Comm’n, 2014 ME 38, ¶¶ 3-6, --- A.3d ---.

          [¶3] Under the Act, unless a customer selects a particular “competitive

electricity provider,” the customer will receive standard-offer service. See 35-A

M.R.S. §§ 3201(5), 3212(1) (2013); 9 C.M.R. 65 407 301-2 § 1(C) (2010). The

Commission selects standard-offer service providers through a bidding process.

See 35-A M.R.S. § 3212(2) (2013).

          [¶4]     The T&D utility may require a deposit from certain customers

receiving standard-offer service. See 9 C.M.R. 65 407 815-5 to -7 § 7 (2012);

35-A M.R.S. § 705 (2013). The value of that deposit for a residential applicant or

customer cannot exceed “the two highest consecutive billing periods incurred


    1
        T&D utilities are public utilities. 35-A M.R.S. § 102(13), (20-B) (2013).
                                                                                                      3

within the previous 12-month period at that location” or, if there is no previous

usage history at the location, at a comparable property. 9 C.M.R. 65 407 815-6

§ 7(E)(1). For a non-residential applicant or customer, the deposit cannot exceed

“the amount reasonably anticipated to be due for service for the two highest billing

periods expected within a 12 month period.” Id. § 7(E)(2).

       [¶5]     Despite the separation of generation from T&D utilities, when

generation is provided to consumers through standard-offer service, the T&D

utility is responsible for billing and collections for both the standard-offer

provider’s services and its own transmission and distribution services.                            See

9 C.M.R. 65 407 301-7 §§ 4(A), (B), 5(B) (2010); 9 C.M.R. 65 407 815-7 to -10

§ 8 (2012). To compensate the T&D utility for providing billing and collections

service on the standard-offer provider’s behalf, and to cover a share of the

uncollectable accounts, a percentage of the standard-offer provider’s income is

allocated to the T&D utility as an “adder.”2 See 9 C.M.R. 65 407 301-7 § 4(D)

(2010). The adder is calculated before the bidding process for standard-offer

service begins based on information from prior years about what percentage of

profits are lost to bad debt and debt services. See id.




   2
     The term “adder” does not appear in the regulations or statutes but is used as a term of art in the
industry.
4

       [¶6] Customers receiving electricity through standard-offer service receive a

single, consolidated bill containing charges for both the electricity supplied

through standard-offer service and the transmission and distribution of that

electricity.   See id. § 5(B).   When a customer making payments under this

consolidated billing pays less than the total owed on a bill, regulations require that

the partial payment be allocated in a particular way. See 9 C.M.R. 65 407 322-6

§ 6(C)(1) (2002). Specifically, the partial payment must be allocated to the oldest

charges first, with transmission and distribution charges paid first if the

“transmission and distribution charges and standard offer charges are of the same

age.” Id. § 6(C)(1)(a).

       [¶7] After the 1999 and 2000 changes in the Act, CMP continued to use its

existing “bucket system” to classify customer debts. CMP placed each debt into

one of four “vintage buckets” based on its age: (1) current, (2) thirty days past due,

(3) sixty days past due, and (4) ninety or more days past due. CMP did not

differentiate among the ages of debts within the fourth bucket. The Commission

initially adopted a rule regarding the treatment of partial payments that expressly

allowed the continuation of the system with a limited number of buckets. See

9 C.M.R. 65 407 322 § 6(C)(2) (effective Apr. 21, 1999), available at Metering,

Billing, Collections, and Enrollment Interactions Among Transmission and
                                                                                                         5

Distribution Utilities and Competitive Electricity Providers (Chapter 322),

No. 1998-810, Corrected Rule, Chapter 322 (Me. P.U.C. May 17, 1999).3

          [¶8] The Commission changed the rule, however, within months—and well

before the time period in dispute here—to eliminate the language approving the

use of a limited number of buckets; the new rule required, without explicit

exception, that partial payments be allocated to T&D receivables first, then

standard-offer receivables, with the oldest charge to be paid first. See 9 C.M.R. 65

407 322-6 § 6(C) (2002); Amendments to Chapter 322, No. 1999-659, Order

Adopting Rule & Statement of Factual & Policy Basis (Me. P.U.C. Dec. 17, 1999).

In its order adopting the new rule, the Commission did not emphasize that any

change in the bucket system had been adopted, but it did state, “payments are

allocated to oldest past due amounts first, and past due amounts of the same

vintage are allocated first to the utility service.” Amendments to Chapter 322, No.

1999-659, Order Adopting Rule & Statement of Factual & Policy Basis, at 5 (Me.

P.U.C. Dec. 17, 1999). The Commission further observed that the change “affects


   3
       Specifically, the rule provided in pertinent part that,

          if a transmission and distribution utility would have to modify its system for tracking past
          due amounts to identify by month past due amounts older than 90 or 120 days, it may
          instead group past due amounts older than 90 days in the same manner as it grouped such
          past due amounts prior to the effective date of this rule.

9 C.M.R. 65 407 322 § 6(C)(2) (effective Apr. 21, 1999), available at Metering, Billing, Collections, and
Enrollment Interactions Among Transmission and Distribution Utilities and Competitive Electricity
Providers (Chapter 322), No. 1998-810, Corrected Rule, Chapter 322 (Me. P.U.C. May 17, 1999).
6

only the accounting of arrearages and write-offs,” such that it “could impact the

amount of the pre-determined uncollectible percentage that would be factored into

future standard offer rates.” Id. at 6.

      [¶9] As a result of CMP’s continued use of a four-bucket system despite the

December 1999 rule change, both partial payments on open accounts and deposits

on disconnected accounts were allocated disproportionately to T&D debts because

the method failed to make distinctions among the ages of debts within the bucket

for the oldest debts. Thus, newer T&D debts in the ninety-or-more-days-past-due

bucket were prioritized over older standard-offer debts in that bucket. Additionally,

the information used to calculate the adder for standard-offer service providers

skewed high because of the higher balance in the standard-offer receivables

account.

      [¶10]    Noting the precipitous increase of the adder, the Commission

commenced an investigation in 2008 into partial-payment allocations between

standard-offer and T&D services on open accounts.             As a result of that

investigation, the Commission concluded that the use of the limited number of

vintage buckets for allocation of partial payments on open accounts was contrary

to the plain language of chapter 322, section 6 of its regulations. See Investigation

into Partial Payment Allocation Between Standard Offer and Utility Service,

No. 2008-351, Order, at 1-2, 5 (Me. P.U.C. May 20, 2009). In part because the
                                                                                      7

Commission did not, when it modified section 6 in December 1999, explicitly

articulate a requirement that T&D utilities eliminate the use of limited buckets

when applying partial payments to the standard-offer and T&D receivables

accounts, the Commission ordered only prospective changes requiring the use of

unlimited buckets for partial payments on open accounts beginning on July 1, 2009.

Id. at 5-6. The Commission did not at that time investigate CMP’s treatment of

deposits on closed, past-due accounts for standard-offer customers. See id. at 1-4.

      [¶11]   After CMP again sought an increase in the adder in 2010, the

Commission began another investigation of CMP in October 2010 to examine its

credit, collections, and accounting practices broadly and to determine whether its

methodology for applying deposits on closed, past-due customer accounts was

prudent and consistent with statutory and regulatory requirements. Over the course

of about a year and a half, the Commission, CMP, and the Office of the Public

Advocate exchanged and responded to data requests. During the proceedings, the

Commission entered orders to protect confidential information from disclosure, the

Commission staff issued bench analyses, CMP pre-filed testimony and exhibits,

and several technical conferences were held.

      [¶12] Ultimately, a hearing was held on June 7 and 8, 2012. After the

subsequent exchange of data requests and responses, and briefing, the hearing

examiner filed a report in August 2012. CMP filed exceptions to the report.
8

      [¶13] The Commission entered its lengthy decision on January 25, 2013. In

its decision, the Commission first determined that an adjustment of the accounts

receivable would not constitute retroactive ratemaking but would instead be the

result of an interpretation of the Commission’s rules affecting the adder, which is

prospectively determined independent of the ratemaking process.

      [¶14] The Commission found that CMP was not “imprudent” simply by

virtue of using the same four-bucket system for allocating deposits on closed,

past-due accounts that it had previously also used for partial payments on open

accounts. See Cent. Me. Power Co. v. Pub. Utils. Comm’n, 153 Me. 228, 243, 136

A.2d 726 (1957) (“In the absence of a showing of inefficiency or improvidence, a

court will not substitute its judgment for [the business managers’] as to the

measure of a prudent outlay.” (quotation marks omitted)); Re Seabrook

Involvements by Maine Utilities, 67 P.U.R.4th 161, 166 (Me. 1985) (defining

prudence as “follow[ing] a course of conduct that a capably managed utility would

have followed in light of existing and reasonably knowable circumstances”). It did,

however, hold CMP responsible for correcting the resulting misapplication of

$2,592,658 in deposits to the T&D receivables account instead of the

standard-offer receivables account from 2008 to 2010.

      [¶15]   The Commission did not consider its corrective order to be

inconsistent with its earlier decision to order only a prospective conversion to a
                                                                                                        9

system with an unlimited number of buckets for partial payments effective July 1,

2009. At the time of that earlier decision, the Commission was aware only of

CMP’s method for allocating partial payments on open accounts; it did not at that

time have information about how CMP was applying deposits on overdue

terminated accounts. In addition, in reaching the decision now on appeal, the

Commission interpreted its rules regarding the treatment of deposits,4 but those

rules were not relevant in the earlier proceeding where the Commission reviewed

CMP’s allocation of partial payments made on open accounts.5

        [¶16] CMP moved for reconsideration or clarification, and the Commission

denied that motion in an order entered on May 14, 2013. At no time did CMP

specifically argue that “a deposit” cannot include more than the one component

covering T&D services. CMP has appealed to us. See 35-A M.R.S. § 1320(1)

(2013); M.R. App. P. 2(b)(3), 22.
   4
      The Commission argues on appeal that its earlier decision regarding partial payments did not
preclude the decision on deposits because the rules treat deposits and partial payments differently.
   5
      The Commission separately found that CMP had been imprudent in managing its credit and
collections functions because CMP had allowed customer account balances to accrue excessively without
taking proper action to collect on debts, resulting in an increase in receivables. See 9 C.M.R. 65 407
301-7 § 4(A) (2010) (requiring the T&D utility providing residential service to “undertake all necessary
actions under the provisions of Chapter 815 on behalf of standard offer providers” for purposes of credit
and collection, disconnection, and handling of deposits); see also id. § 4(B) (imposing similar obligation
for nonresidential service).     The Commission determined that the imprudence resulted in an
approximately $1.5 million loss to the standard-offer receivables account, taking into consideration the
separate correction ordered to remedy the use of the four-bucket system, to prevent double-counting. The
Commission therefore additionally ordered the transfer of $1.5 million from the T&D account to the
standard-offer receivables account. One Commissioner dissented in part from the Commission’s
decision. He would have required, consistent with the examiner’s report, that CMP reallocate $3.7
million to correct for CMP’s imprudence in allowing debts to accrue excessively. CMP does not
challenge this part of the Commission’s determination on appeal.
10

                                II. DISCUSSION

A.    Interpretation of Rules

      [¶17] CMP argues that the Commission erred in interpreting the statues and

regulations governing deposits to require T&D utilities to collect two separate

deposits—one for T&D service and one for standard-offer service.                The

Commission argues that, because CMP never argued to the Commission that the

use of the term “a deposit” precluded an interpretation requiring a deposit with two

components, that issue has been waived and cannot be raised on appeal.

      [¶18]   “Generally, decisions of the Commission are reviewed only to

determin[e] whether the agency’s conclusions are unreasonable, unjust or unlawful

in light of the record.” Competitive Energy Servs. LLC v. Pub. Utils. Comm’n,

2003 ME 12, ¶ 15, 818 A.2d 1039 (alteration in original) (quotation marks

omitted). “When reviewing an agency’s interpretation of a statute that is both

administered by the agency and within the agency’s expertise, we apply a two-part

inquiry.” Id. We will first determine de novo whether the statute is “reasonably

susceptible of different interpretations” and therefore ambiguous. Id. (quotation

marks omitted). Next, we “either review the Commission’s construction of the

ambiguous statute for reasonableness or plainly construe the unambiguous statute.”

Id. “An agency’s interpretation of an ambiguous statute it administers is reviewed
                                                                                  11

with great deference and will be upheld unless the statute plainly compels a

contrary result.” Id. (quotation marks omitted).

      [¶19]    These same standards apply when we review an agency’s

interpretation of its technical regulations, with the added requirement that the

interpretation must comport with relevant statutes.       See Bertl v. Pub. Utils.

Comm’n, 2005 ME 115, ¶ 7, 885 A.2d 776. On appeal, the party challenging the

decision has the burden of showing that the agency’s action was “arbitrary or based

on an error of law.” Fryeburg Health Care Ctr. v. Dep’t of Human Servs., 1999

ME 122, ¶ 7, 734 A.2d 1141.

      [¶20] Especially in this context, where the decision on appeal is that of an

administrative agency, it is important for a party to raise an issue of statutory

interpretation during the proceedings before that agency to give it an opportunity to

consider the argument first. See New Eng. Whitewater Ctr., Inc. v. Dep’t of Inland

Fisheries & Wildlife, 550 A.2d 56, 59-60 (Me. 1988). The preservation of an issue

is important to preserve fairness to both administrators and litigants, and it

“ensures that the agency and not the courts has the first opportunity to pass upon

the claims of the litigants.” Id. at 60. “An issue is raised and preserved if there

was a sufficient basis in the record to alert the [Commission] and any opposing

party to the existence of that issue.” Verizon New Eng., Inc. v. Pub. Utils. Comm’n,

2005 ME 16, ¶ 15, 866 A.2d 844 (quotation marks omitted).
12

      [¶21] Here, as the Commission correctly acknowledges, CMP argued to the

Commission for its own interpretation of statutes and regulations that it contended

were ambiguous. CMP did not, however, specifically argue that the use of the

singular “a deposit” prevented viewing a deposit as separable into two receivables

accounts.     Nonetheless, because this conceptualization of the argument was

generated primarily by the Commission’s ultimate determination in its order that

“CMP has essentially collected two deposits; one for T&D service and one for

standard offer services,” CMP’s first opportunity to address the “dual-deposit”

concept arose after the Commission’s decision. At that stage, CMP filed a motion

for reconsideration based on an argument that neither the statutes nor the

regulations required CMP to separate the deposits into two receivables accounts,

which the Commission denied. We therefore address the question of whether

references to “a deposit” in 35-A M.R.S. § 705 and 9 C.M.R. 65 407 815-5 to -7

§ 7 (2012) prevent a determination that the deposit must be segmented and

allocated proportionately to standard-offer and T&D receivables accounts based on

debt age.

      [¶22]     By Commission rule, a “utility may demand a deposit” from

residential and non-residential applicants and customers in defined circumstances.

9 C.M.R. 65 407 815-5 to -6 § 7(A)-(D) (emphasis added). The rule provides that

the deposit may not exceed (1) the amount of the two highest consecutive bills
                                                                                   13

during the prior twelve months at the location or a comparable location for

residential customers or (2) the amount reasonably anticipated to be due during the

two highest billing periods expected in a twelve-month period for nonresidential

customers. See id. § 7(E).

      [¶23]     The amount billed by a T&D utility includes charges for

standard-offer service when the customer has not selected a competitive electricity

provider. See 9 C.M.R. 65 407 301-7 § 5(B). The T&D utility is responsible for

undertaking the same chapter 815 collection activities regarding billed

standard-offer service as it does for its own T&D service, see id. § 4, and chapter

815 authorizes the collection of deposits based on bills that include charges for

both standard-offer service and T&D service, see 9 C.M.R. 65 407 815-6 § 7(E).

      [¶24] Chapter 815 provides that if a customer is disconnected, the utility

“must apply the deposit, including accrued interest, to the account balance for

utility service and refund the remainder within 30 days or with the final bill,

whichever is later.” Id. § 7(I)(1)(b) (emphasis added). Standing alone, section

7(I)(1)(b) might suggest that all of the deposit should be allocated to the T&D

utility’s receivables account because standard-offer service is not “utility service.”

See 35-A M.R.S. § 102(13), (20-B) (2013) (defining “public utility” to include a

T&D utility but not a standard-offer service provider). Because the deposit is

calculated based in part on standard-offer charges, and the T&D utility is
14

responsible for collections on standard-offer service, however, the rules could

reasonably be interpreted differently. See 9 C.M.R. 65 407 301-7 §§ 4(A), (B),

5(B); 9 C.M.R. 65 407 815-6 § 7(E). The Commission’s rules are “reasonably

susceptible of different interpretations,” and are, therefore, ambiguous.       See

Competitive Energy Servs. LLC, 2003 ME 12, ¶ 15, 818 A.2d 1039 (quotation

marks omitted).

      [¶25] Reviewing the Commission’s interpretation of its own rules with great

deference, as we must, see id.; Bertl, 2005 ME 115, ¶ 7, 885 A.2d 776, we cannot

conclude that the Commission’s interpretation was arbitrary or based on an error of

law, see Fryeburg Health Care Ctr., 1999 ME 122, ¶ 7, 734 A.2d 1141.

Examining together all of the rules governing the handling of deposits, the

Commission reasonably interpreted them to treat the deposits, which were

calculated based on charges for both standard-offer and T&D services, as

containing two components—one part for T&D service and the other part for

standard-offer service—which must be allocated to the oldest debt first, with

priority to T&D if the debts are of the same age. We do not discern any legal error

or arbitrariness in the Commission’s construction of its rules to require that, when

a T&D utility engages in consolidated billing, it acts on its own behalf and on

behalf of the standard-offer service provider.
                                                                               15

B.    Retroactivity

      [¶26] CMP next contends that the Commission may not retroactively apply

its latest interpretation of the deposit statutes and regulations to CMP because

CMP lacked fair notice of the regulatory change and the Commission may not

engage in rulemaking through adjudication.

      [¶27]   The Maine Administrative Procedure Act defines a “rule” as a

“regulation, standard, code, statement of policy, or other agency guideline or

statement of general applicability . . . that is or is intended to be judicially

enforceable and implements, interprets or makes specific the law administered by

the agency, or describes the procedures or practices of the agency.” 5 M.R.S.

§ 8002(9)(A) (2013). Rulemaking requires compliance with the notice, comment,

public hearing, and publication provisions set forth in 5 M.R.S. §§ 8052 to 8057-A

(2013).

      [¶28] Specifically excepted from the definition of “rules,” however, are

“[d]ecisions issued in adjudicatory proceedings.”     5 M.R.S. § 8002(9)(B)(3)

(2013); see Cobb v. Bd. of Counseling Professionals Licensure, 2006 ME 48, ¶ 23,

896 A.2d 271. The adjudicating agency “is not required to use the formal rule

making procedures every time it makes a decision interpreting an existing rule.”

Fryeburg Health Care Ctr., 1999 ME 122, ¶ 9, 734 A.2d 1141. Case-by-case
16

determinations by an agency do not amount to rulemaking. S.D. Warren Co. v. Bd.

of Envtl. Prot., 2005 ME 27, ¶ 30, 868 A.2d 210.

      [¶29] However, “[p]ersons engaged in activities subject to state or local

regulation are entitled to know with reasonable clarity what they must do to engage

in the regulated activities without violation of the law or to obtain the permits or

approvals they seek.” State v. McCurdy, 2010 ME 137, ¶ 17, 10 A.3d 686; see

also Tenants Harbor Gen. Store, LLC v. Dep’t of Envtl. Prot., 2011 ME 6,

¶¶ 10-17, 10 A.3d 722 (vacating an agency’s decision when it applied rules or

criteria that were not adopted and set forth in statutes or agency rules). We do not

defer to agency interpretation when an agency takes enforcement action in a

manner that deprives regulated parties of adequate notice about how to comply

with the law and promotes practices that are contrary to the purpose of the law.

See McCurdy, 2010 ME 137, ¶ 21, 10 A.3d 686; see also Tenants Harbor Gen.

Store, 2011 ME 6, ¶ 16, 10 A.3d 722 (declining to defer to an agency when the

statutory language compelled a contrary result).

      [¶30] CMP asks us to import a notice requirement—similar to the notice

required before a rule change takes effect—into certain adjudicatory proceedings

before an interpretation of a rule can be applied to past conduct. Specifically,

CMP urges us to adopt the fair notice doctrine, which has been applied primarily in

federal circuit courts. See Albert C. Lin, Refining Fair Notice Doctrine: What
                                                                                   17

Notice Is Required of Civil Regulations?, 55 Baylor L. Rev. 991, 996-97 & n.23

(2003). This doctrine, based largely on due process principles, id. at 998-1000,

“protects a regulated party from civil penalties or similar sanctions where it did not

have fair notice of an agency’s interpretation of a regulation,” id. at 992. “In the

absence of notice—for example, where the regulation is not sufficiently clear to

warn a party about what is expected of it—an agency may not deprive a party of

property by imposing civil or criminal liability.” Gen. Elec. Co. v. United States

E.P.A., 53 F.3d 1324, 1328-29 (D.C. Cir. 1995).

      [¶31] Without adopting the fair notice doctrine, we have applied similar

concepts of due process in Maine. As we held in State v. McCurdy, 2010 ME 137,

10 A.3d 686, those engaged in regulated activities must be informed with

reasonable clarity of what they must do to avoid violating the law. Id. ¶ 17.

Unlike McCurdy, however, CMP has not been assessed with a civil penalty. See id.

¶¶ 3, 6, 12. The Commission has only ordered CMP to correct an accounting error.

      [¶32] CMP argues that this accounting adjustment is no different than the

separate sanction imposed by the Commission requiring a $1.5 million adjustment

because CMP allowed debts to accrue excessively. We disagree. The reallocation

that is now on appeal required an accounting adjustment between the

standard-offer and T&D receivables accounts to ensure the proper determination of

the adder in the future. Nowhere did the Commission require that CMP pay a fine
18

as a penalty to the State or impose any similar sanction. Cf. Qwest Corp. v. Minn.

Pub. Utils. Comm’n, 427 F.3d 1061, 1063-64, 1068-69 (8th Cir. 2005) (applying

the fair notice doctrine and affirming the imposition of a penalty of $25.95 million

by the Minnesota Public Utilities Commission).

      [¶33] Although CMP argues that the fair notice doctrine should be applied

whenever a large monetary loss is involved, the authority that CMP cites for this

proposition does not support its argument. See United States v. Chrysler Corp.,

158 F.3d 1350 (D.C. Cir. 1998). In the Chrysler case, the court applied the fair

notice doctrine when the District Court ordered an automobile recall despite a

statutory scheme that called for a degree of leniency in enforcement based on

whether a reasonable person exercising reasonable care would be aware of an

automobile’s noncompliance when certifying that it complied with regulatory

standards. Id. at 1354-55. No such statutory provisions are in place here, and we

conclude that the prospective financial impact on CMP does not alone render the

accounting adjustment penal for purposes of applying the fair notice doctrine.

Cf. Arkansas Dep’t of Human Servs. v. Sebelius, 818 F. Supp. 2d 107, 120-22

(D.D.C. 2011) (holding that not all economic impacts are “sufficiently grave” to

merit the application of the fair notice doctrine).

      [¶34] We recognize that the ordered correction will result in a significant

increase in the amount of bad debt that CMP will carry. The dollar amount
                                                                                                         19

involved does not, however, convert an accounting adjustment, designed to ensure

the proper calculation of the adder in the future, into a penalty.6

        [¶35]      Nor does the Commission’s order requiring the adjustment of

balances in the receivables accounts for the years 2008 to 2010 otherwise offend

concepts of due process or reasonable notice in the circumstances of this case.

CMP had access to the following information, which raised questions about its

interpretation of the regulations to allow the separation of debts into a limited

number of buckets: (1) in December 1999, the Commission published a rule

amendment that eliminated language authorizing the use of a system with a limited

number of buckets in allocating partial payments, see Amendments to Chapter 322,

No. 1999-659, Order Adopting Rule & Statement of Factual & Policy Basis (Me.

P.U.C. Dec. 17, 1999); (2) in 2008, the Commission ruled that, for partial

payments on open accounts, it was unacceptable to use a system with a limited

number of buckets effective July 1, 2009, see Investigation into Partial Payment

Allocation Between Standard Offer and Utility Service, No. 2008-351, Order, at

5 (Me. P.U.C. May 20, 2009); and (3) CMP could readily observe that its




   6
      Furthermore, in contrast to McCurdy, the commission’s enforcement action does not “promote[]
practices harmful to the . . . purpose of the law.” State v. McCurdy, 2010 ME 137, ¶ 21, 10 A.3d 686. On
the contrary, the regulated party’s interpretation would undermine the fair application of the statutory and
regulatory scheme, which is designed to make the T&D entity responsible for billing and collections for
standard-offer service just as it is responsible for billing and collections for its own utility service.
20

allocations were substantially increasing the amount of standard-offer receivables

as compared with the T&D receivables.

      [¶36] Notwithstanding these indications, CMP interpreted the ambiguous

rules in the light most favorable to its own financial prospects without seeking an

advisory ruling.     See 5 M.R.S. § 9001 (2013).           We will not disturb the

Commission’s decision to require CMP to remedy its misallocation of deposits

between the separate receivables accounts in these circumstances.

C.    Ratemaking

      [¶37] Finally, CMP argues that the change in application of the statutes and

agency rules constitutes impermissible retroactive ratemaking.

      [¶38] In regulating electricity utilities, “the Maine system of utility rate

regulation is so designed that the Commission’s authority to protect ratepayers

from unjust or unreasonable rates is prospective and preventive in nature.” First

Hartford Corp. v. Cent. Me. Power Co., 425 A.2d 174, 177 (Me. 1981). “Once

rates have been set, the Commission may not adjust those rates retrospectively to

make up for subsequently discovered mistakes in those rates.” Pub. Advocate v.

Pub. Utils. Comm’n, 1998 ME 218, ¶ 8, 718 A.2d 201. The Commission lacks the

authority to grant retrospective rate relief to customers. Id. ¶ 15.

      [¶39] Here, the rates already paid by ratepayers are in no way affected by

the Commission’s adjudication.         CMP has not been directed to reimburse
                                                                                 21

ratepayers; rather it has been asked to remedy its misapplication of certain deposit

sums to the T&D receivables account when they should have been applied to the

standard-offer receivables account.    Although the Commission’s decision will

affect future ratemaking through the next calculation of the adder, it does not

retroactively affect rates. CMP may have relied on its anticipated use of the

four-bucket allocation method during prior ratemaking proceedings, but the

correction of its misunderstanding in this regard cannot transform the current

decision into ratemaking; the rates were set and paid, and they have not been

remade. Accordingly, the decision does not run afoul of the prohibition against

retroactive ratemaking, and we affirm the decision of the Public Utilities

Commission.

      The entry is:

                      Decision of the Public Utilities Commission
                      affirmed.



On the briefs:

      Catherine R. Connors, Esq., Jared S. des Rosiers, Esq., and
      Nolan L. Reichl, Esq., Pierce Atwood LLP, Portland, for
      appellant Central Maine Power Company

      Charles Cohen, Esq., and Amy Mills, Esq., Public Utilities
      Commission, Augusta, for appellee Public Utilities
      Commission
22

At oral argument:

        Catherine R. Connors, Esq., for appellant Central Maine Power
        Company

        Charles Cohen, Esq., for appellee Public Utilities Commission



Public Utilities Commission docket number 2010-00327
FOR CLERK REFERENCE ONLY
