                              District of Columbia
                               Court of Appeals
Nos. 15-AA-301 & 15-AA-302
                                                                        JAN 14 2016
APARTMENT AND OFFICE BUILDING ASSOCIATION OF
    METROPOLITAN WASHINGTON,
                                 Petitioner,

      v.

PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA,
                                  Respondent,

      &                                                     FC-1116-14 &
                                                            FC-1121-14

OFFICE OF THE PEOPLE‟S COUNSEL,
     DISTRICT OF COLUMBIA DEPARTMENT OF TRANSPORTATION and
     POTOMAC ELECTRIC POWER COMPANY,
                                 Intervenors.

                         On Petition for Review of Orders of
              The Public Service Commission of the District of Columbia

     BEFORE: Easterly and McLeese, Associate Judges; and Farrell, Senior Judge.

                                  JUDGMENT

      This case came to be heard on the administrative record, certified copy of the
agency hearing transcript, the briefs filed, and was argued by counsel. On consideration
whereof, and as set forth in the opinion filed this date, it is now hereby

       ORDERED and ADJUDGED that the orders of the Public Service Commission of
the District of Columbia are affirmed.

                                  For the Court:




Dated: January 14, 2016.

Opinion by Associate Judge Roy W. McLeese.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
                                                                           1/14/16
            DISTRICT OF COLUMBIA COURT OF APPEALS

                        Nos. 15-AA-301 & 15-AA-302

APARTMENT AND OFFICE BUILDING ASSOCIATION OF METROPOLITAN WASHINGTON,
                              PETITIONER,

                                      V.

   PUBLIC SERVICE COMMISSION OF THE DISTRICT OF COLUMBIA, RESPONDENT,

                                     and

  OFFICE OF THE PEOPLE‟S COUNSEL, DISTRICT OF COLUMBIA DEPARTMENT OF
  TRANSPORTATION, and POTOMAC ELECTRIC POWER COMPANY, INTERVENORS.

                On Petitions for Review of Orders of the Public
                Service Commission of the District of Columbia
                         (FC-1116-14 & FC-1121-14)


(Argued November 3, 2015                             Decided January 14, 2016)

       Vincent Mark J. Policy, with whom Frann G. Francis was on the brief, for
petitioner.

        Christopher G. Lipscombe, Attorney Advisor, with whom Richard A.
Beverly, General Council, and Naza N. Shelley, Attorney Advisor, were on the
brief, for respondent.

      John Michael Adragna, Kevin J. Conoscenti, Sandra Mattavous-Frye, Karen
R. Sistrunk, and Travis R. Smith were on the brief for intervenor Office of the
People‟s Counsel.
                                      2

       Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and James C.
McKay, Jr., Senior Assistant Attorney General, were on the brief for intervenor
District of Columbia Department of Transportation.

      Peter E. Meier, with whom Wendy E. Stark, Andrea H. Harper, and Dennis
P. Jamouneau, were on the brief, for intervenor Potomac Electric Power Company.

      Before EASTERLY and MCLEESE, Associate Judges, and FARRELL, Senior
Judge.

      MCLEESE, Associate Judge: In 2014, the Council of the District of Columbia

authorized intervenors Potomac Electric Power Company (Pepco) and District of

Columbia Department of Transportation (DDOT) to work together to move

overhead electrical-power lines underground.    Electric Company Infrastructure

Improvement Financing Act of 2014 (ECIIFA), D.C. Code § 34-1311.01 et seq.

(2015 Supp.), amended by D.C. Code Ann. § 34-1311.01 (8A) (West, Westlaw

through Nov. 30, 2015). The project is expected to take seven to ten years to

complete and to cost approximately $1 billion. Petitioner Apartment and Office

Building Association of Metropolitan Washington (AOBA) seeks review of orders

of respondent Public Service Commission of the District of Columbia allocating

the costs of the project among Pepco‟s customers. We affirm.
                                       3

                                           I.



      ECIIFA allows Pepco and DDOT to recover the costs of the undergrounding

project in two ways.    First, Pepco can impose “DDOT Underground Electric

Company Infrastructure Improvement Charges” (DDOT charges) on certain Pepco

customers. D.C. Code § 34-1313.01 (a)(4). The revenue from DDOT charges is to

be used to pay the principal and interest on bonds issued by the District of

Columbia to finance aspects of the project.       D.C. Code §§ 34-1311.01 (13),

34-1312.01 to -1312.12.      Second, Pepco can impose “Underground Project

Charges” (UPCs) on certain of its customers in order to recover costs that Pepco

itself incurs on the project.    D.C. Code §§ 34-1311.01 (21) and (42), 34-

1313.10 (c)(1). Both types of undergrounding charge must be approved by the

Commission as part of triennial plans submitted by Pepco and DDOT. D.C. Code

§§ 34-1313.01 to -1313.15.



      The undergrounding charges are allocated among Pepco‟s customers using a

single formula.      See D.C. Code §§ 34-1313.01 (a)(4), 34-1313.10 (c)(1).

Specifically, the charges are to be recovered in the form of a “volumetric

surcharge,” i.e., a surcharge tied to the amount of electricity each customer uses.

D.C. Code §§ 34-1313.01 (a)(4), 34-1313.10 (c)(2).       The charges are to be
                                         4

allocated among certain of Pepco‟s customer classes “in accordance with the

distribution service customer class cost allocations approved by the Commission

for the electric company . . . [in or pursuant to the] most recent base rate case.”

D.C. Code §§ 34-1313.01 (a)(4), 34-1313.10 (c)(1).



      “Base rate cases” are proceedings in which the Commission decides whether

and how to modify electricity-rate designs to serve various regulatory goals. See

Formal Case No. 1116, Application for Approval of Triennial Underground

Infrastructure Improvement Projects Plan, Order No. 17697 ¶ 189 (Pub. Serv.

Comm‟n Nov. 12, 2014) (hereinafter “Order No. 17697”). In a base rate case, the

Commission can distribute the burden of meeting Pepco‟s revenue requirements

among Pepco‟s customer classes, taking into consideration factors such as the

amounts of electricity used by various customer classes, the number of customers

in the classes, and the existing rates of return for the classes. See Formal Case No.

1103, Application of Potomac Elec. Power Co. for Authority to Increase Existing

Retail Rates & Charges for Elec. Distrib. Serv., Order No. 17424 ¶¶ 385-86 (Pub.

Serv. Comm‟n Mar. 26, 2014) (hereinafter “Order No. 17424”); Formal Case No.

1116, Application for Approval of Triennial Underground Infrastructure

Improvement Projects Plan, Order No. 17769 ¶ 56 (Pub. Serv. Comm‟n Jan. 22,

2015) (hereinafter “Order No. 17769”).
                                      5



      The parties agree that Formal Case 1103 is the “most recent base rate case”

for purposes of determining how to apportion the undergrounding charges. The

Commission concluded Formal Case 1103 on March 26, 2014, after the enactment

of ECIIFA but before ECIIFA‟s effective date of May 3, 2014. See Order No.

17424 at 1; Electric Company Infrastructure Improvement Financing Act of 2014,

D.C. Act 20-290, § 503, 61 D.C. Reg. 1882 (Mar. 3, 2014); D.C. Law 20-102, 61

D.C. Reg. 5193 (May 3, 2014).



      In Formal Case 1103, the Commission considered a variety of ratemaking

adjustments requested by Pepco, along with a request to increase the revenue

collected from Pepco‟s customers. See Order No. 17424 ¶ 566. Pepco initially

requested a total revenue increase of $44,816,000, to recoup investments in

infrastructure that Pepco described as needed to “improve the resiliency of its

system in order to provide reliable service to its customers.”     Id. ¶ 8.   The

Commission approved a revenue increase of $23,448,000. Id. ¶¶ 13, 566. The

Commission also addressed how the burden of paying for the revenue increase

should be allocated among Pepco‟s customer classes.        Id. ¶¶ 410-38.     The

Commission concluded that there “were significant disparities in customer class

[rates of return] that warrant corrective action,” id. ¶ 410, and that Pepco‟s
                                        6

commercial customer classes had been substantially subsidizing the costs of

services for residential customers. Id. ¶ 438. In an effort to address this issue, the

Commission decided that forty-seven percent of the total revenue increase would

be allocated to residential customer classes. Id. ¶ 437.



      The Commission decided to direct Pepco to collect the additional revenues

allocated to residential customer classes through increases to customer charges,

rather than through increases to volumetric charges. Order No. 17424 ¶ 450. For

example, the monthly customer charge for Pepco‟s “Residential R” class was

increased by $3.75, resulting in a total per-month charge of $13. Id. ¶ 451. The

Commission found that the new customer charges approved for residential

customer classes in Formal Case 1103 remained “well below the actual fixed costs

of serving each of these [] customer classes.” Id. ¶ 451. The volumetric charges

for those classes of residential customers remained unchanged. Cf. id. ¶¶ 450-51.



      In June 2014, Pepco and DDOT sought approval of their first three-year plan

for the undergrounding project. See Order No. 17697 ¶ 5; Formal Case No. 1121,

Application of Potomac Electric Power Co. for a Financing Order, Order No.

17714 ¶ 6 (Pub. Serv. Comm‟n Nov. 24, 2014) (hereinafter “Order No. 17714”).

Among other things, the application requested approval of a UPC. Order No.
                                           7

17697 ¶ 5.    Pepco and DDOT proposed to allocate the UPC based on the

“volumetric allocation of rates determined in Formal Case No. 1103, [] exclud[ing]

the customer charge component.” Order No. 17697 ¶ 97 (emphasis omitted). This

proposal did not include the customer charge revenue approved in Formal Case

1103 because, according to Pepco, customer charges are typically used to recover

costs such as billing and metering, not the types of costs associated with the

undergrounding project.     Id. ¶ 186.         Pepco and DDOT‟s proposal allocated

approximately eighty-nine percent of the burden of the UPC to commercial

customer classes and approximately eleven percent of the burden of the UPC to

residential customer classes. Id. ¶ 183.



      AOBA opposed Pepco‟s proposed allocation, raising two alternative

arguments. First, AOBA argued that the burden of the UPC should be allocated

based on a study of the costs of providing service to various classes of customers

that Pepco had prepared in connection with Formal Case 1103. Order No. 17697

¶¶ 47-48. Second, AOBA argued that the customer charge approved in Formal

Case 1103 had to be included in Pepco‟s proposed allocation, because that charge

was one of the “distribution service customer class cost allocations” approved in

Formal Case 1103. Id. ¶ 185. Under AOBA‟s reading of the statute, commercial
                                       8

customers would have borne a smaller percentage of the burden of the UPC than

under Pepco‟s proposal. Cf. id. ¶¶ 47-51.



      In Formal Case 1116, the Commission adopted Pepco‟s proposed approach,

agreeing that customer charges should not be included in the UPC cost allocation.

Order No. 17697 ¶ 187. An essentially identical issue arose in Formal Case 1121

with respect to the allocation of the burden of the DDOT charge. Order No. 17714

¶¶ 39, 42, 77. The Commission resolved that issue as it had in Formal Case 1116.

Id. ¶¶ 77-78.



      In this court, AOBA challenges the Commission‟s cost-allocation decisions,

arguing that the Commission misconstrued ECIIFA. After AOBA submitted its

initial brief in this court, the Council of the District of Columbia amended ECIIFA

by providing a definition of the disputed language in this case. See D.C. Code

Ann. § 34-1311.01 (8A). The amendment defines the term “[d]istribution service

customer class cost allocations” as “the allocation of the electric company‟s

revenue requirement to each customer rate class on the basis of the total rate class

distribution service revenue minus the customer charge revenue.” Id. The Council

made the amendment effective as of May 3, 2014 -- the same day that ECIIFA
                                         9

originally took effect. Fiscal Year 2016 Budget Support Act of 2015, D.C. Act 21-

148, § 2103, 62 D.C. Reg. 10940 (Aug. 11, 2015).



      The Commission argues that the definition in the amendment renders

academic any dispute over the proper interpretation of ECIIFA as originally

enacted. AOBA disagrees, arguing that the amendment does not apply to the

orders on review in these proceedings and that the court must at the very least

remand the case to allow the Commission to determine in the first instance the

impact of the amendment.



                                         II.

      Review in this court of Commission orders is governed by D.C. Code § 34-

606 (2012 Repl.), which provides that:


      [In] any appeal from an order or decision of the Commission the
      review by the Court shall be 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 of the
      Commission are unreasonable, arbitrary, or capricious.


      This court‟s review of ratemaking orders of the Commission is the

“narrowest [] in the field of administrative law,” because “[t]he Commission, not

this court, has the sole responsibility for balancing consumer and investor interests
                                       10

in designing rate structures and approving specific charges.” Potomac Elec. Power

Co. v. Public Serv. Comm’n, 457 A.2d 776, 782 (D.C. 1983).               If 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,

we must affirm.” Id.



      Generally, “an administrative order cannot be upheld unless the grounds

upon which the agency acted in exercising its powers were those upon which its

action can be sustained.” NBC v. District of Columbia Comm’n on Human Rights,

463 A.2d 657, 663 (D.C. 1983) (quoting SEC v. Chenery Corp., 318 U.S. 80, 95

(1943)). Thus, if a party asks this Court to affirm an agency order based upon a

ground that was not considered by the agency, we ordinarily must remand for the

agency to consider the new ground in the first instance. See, e.g., Jones v. District

of Columbia Dept. of Emp’t Servs., 519 A.2d 704, 709 (D.C. 1987). This principle

is subject to some exceptions, however. Specifically, remand is not required in

cases where the agency would doubtless reach the same result and reaffirm its prior

order, Le Chic Taxicab Co. v. District of Columbia Taxicab Comm’n, 614 A.2d

943, 945 (D.C. 1992), or because “it is clear what the agency‟s decision has to be.”

Bio-Med. Applications of District of Columbia v. District of Columbia Bd. of
                                       11

Appeals & Review, 829 A.2d 208, 217 (D.C. 2003) (internal quotation marks

omitted).



                                        III.




      We turn first to whether the recent amendment to ECIIFA applies to the

current proceedings. Based on the amendment‟s effective date, the context and

timing of the amendment‟s adoption, and the substance of the amendment, we

conclude that the amendment does apply. First, although the amendment was

enacted in 2015, the Council made the amendment applicable “as of May 3, 2014,”

the original effective date of ECIIFA. D.C. Act 21-148, § 2103, 62 D.C. Reg.

10940. The Council thus directed that the amendment be treated as if it had been

included in ECIIFA as originally enacted in 2014. It follows that the Council

intended the amendment to apply to all claims and proceedings arising under

ECIIFA, as would ordinarily have been the case if the amendment had in fact been

part of ECIIFA as originally adopted. Cf., e.g., Davis v. Moore, 772 A.2d 204, 228

(D.C. 2001) (en banc) (legislation is presumptively prospective in application); In

re Ancillary Liquidation of Integrity Ins. Co., 580 N.W.2d 348, 352 (Wis. 1998)

(statute was applied prospectively when applied to “claims which arose and were

filed after its effective date”). The decision to make the amendment effective as of
                                      12

May 3, 2014, unequivocally demonstrates the Council‟s intent to make the

amendment applicable to these proceedings.



      Second, the context and timing of the amendment confirm that the Council

intended the amendment to apply to the current proceedings. As we have noted,

the Commission issued orders in November 2014 approving Pepco‟s proposal to

allocate the undergrounding charges based on the cost allocations approved by the

Commission in Formal Case 1103, but excluding the customer charges. Order No.

17697 at 1 & ¶ 187; Order No. 17714 at 1 & ¶¶ 77-78. After unsuccessfully

seeking reconsideration before the Commission, AOBA sought review in this court

in March 2015.     The Council responded soon thereafter.      In May 2015, the

Committee on Business, Consumer, and Regulatory Affairs recommended that the

Council enact new legislation to clarify the methodology to be used in allocating

the costs of the undergrounding project, noting that, “[d]ue to ongoing litigation,

the District is unable to obtain financing and begin the underground[ing] process.”

D.C. Council, Comm. on Bus., Consumer, & Regulatory Affairs, Rep. &

Recommendations of Comm. on Fiscal Year 2016 Budget for Agencies Under Its

Purview, at 90 (May 13, 2015). In July 2015, a little more than a month after

AOBA filed its opening brief in this court, the Council enacted emergency

legislation amending ECIIFA to define the language at issue in these proceedings.
                                      13

Fiscal Year 2016 Budget Support Emergency Act of 2015, D.C. Act 21-127,

§ 2102; 62 D.C. Reg. 10237 (Jul. 27, 2015). Permanent legislation containing the

same definition was enacted in August 2015 and became law, after the

congressional review period, in October 2015. Fiscal Year 2016 Budget Support

Act of 2015, D.C. Act 21-148, § 2102, 62 D.C. Reg. 10940 (Aug. 11, 2015); 2015

D.C. Laws 21-36, § 2102 (West, Westlaw 2015). A Report by the Committee of

the Whole noted that the amended definition “clarifies the cost allocation

methodology to be used for purposes of [ECIIFA] to reflect the understanding of,”

inter alia, “the electric utility.” D.C. Council, Comm. of Whole Rep. on Bill 21-

158, Fiscal Year 2016 Budget Support Act of 2015, at 7 (May 27, 2015). This

sequence of events confirms the Council‟s intent to make the amendment

applicable to these proceedings.



      Third, by its terms, the amendment appears to adopt the cost-allocation

methodology that the Commission approved in Formal Cases 1116 and 1121. In

Order No. 17697, for example, the Commission endorsed Pepco‟s proposed

allocation of the UPC “to customer classes on the basis of the rate class specific

levels of non-customer-related distribution revenue,” subtracting “the customer

charge from the cost allocation.” Order No. 17697 ¶¶ 186-87. The Commission

approved the same formula for allocation of the DDOT Charge. See Order No.
                                      14

17714 ¶ 78. The amendment, which instructs the Commission to allocate the

undergrounding charges based on “the total rate class distribution service revenue

minus the customer charge revenue,” D.C. Code Ann. § 34-1311.01 (8A), mirrors

the formula approved by the Commission.



      For the foregoing reasons, we conclude that the amendment to ECIIFA

defining the term “distribution service customer class cost allocations” applies to

the present proceedings. We are not persuaded by AOBA‟s arguments to the

contrary.



      First, AOBA argues that the evidence of the Council‟s intent is insufficient

“to overcome the virtually conclusive presumption that legislation is not

retroactive.” It can be difficult to determine whether a given application of a new

enactment would be retroactive in character. As the Supreme Court has explained:

      A statute does not operate “retrospectively” merely because it is
      applied in a case arising from conduct antedating the statute‟s
      enactment, or upsets expectations based in prior law. Rather, the
      court must ask whether the new provision attaches new legal
      consequences to events completed before its enactment. The
      conclusion that a particular rule operates “retroactively” comes at the
      end of a process of judgment concerning the nature and extent of the
      change in the law and the degree of connection between the operation
      of the new rule and a relevant past event. Any test of retroactivity
      will leave room for disagreement in hard cases, and is unlikely to
      classify the enormous variety of legal changes with perfect
      philosophical clarity.
                                        15


Landgraf v. USI Film Prods., 511 U.S. 244, 269-70 (1994) (citations omitted). We

need not decide in this case, however, whether application of the amendment to

these proceedings would be retroactive in character. For the reasons we have

explained, the plain language and legislative history of the amendment would

suffice to rebut any applicable presumption against retroactivity.



      AOBA argues, however, that the amendment lacks the requisite clarity

because the amendment does not explicitly state that it applies to pending

proceedings. Cf. District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 167,

174 (D.C. 2008) (discussing statute made explicitly applicable to cases pending on

statute‟s effective date). Explicit reference to pending proceedings is a particularly

clear way to express legislative intent. See, e.g., Bank of Am., N.A. v. Griffin, 2

A.3d 1070, 1074 (D.C. 2010) (statute at issue in Beretta was “just about the most

clear legislative showing we can imagine”) (internal quotation marks omitted).

But AOBA cites no authority, and we know of none, holding that new enactments

can apply to pending proceedings only if the legislature expressly refers to pending

proceedings. To the contrary, legislatures are not required to use “magic words”

when they intend a new enactment to apply to pending proceedings. Cf., e.g.,

Bernier v. Data Gen. Corp., 787 A.2d 144, 150 (Me. 2002) (“we have never

required an express reference to „pending proceedings‟” in order to apply statute to
                                        16

proceedings pending on date of statute‟s enactment).          Rather, as this court

indicated in Beretta, it will suffice if the legislature has made its intent “clear.”

940 A.2d at 174.



      Second, AOBA suggests that the amendment is an impermissible attempt by

the Council in 2015 to influence this court‟s interpretation of a provision enacted in

2014 by a differently constituted Council. We have said that “there is serious

debate and doubt as to when, if ever, a later legislature has a role in construing

what an earlier legislature intended.” Tippet v. Daley, 10 A.3d 1123, 1131 (D.C.

2010) (en banc) (internal quotation marks omitted). The amendment in this case,

however, is not a post-hoc attempt by the Council to influence this court‟s

interpretation of ECIIFA as originally enacted. Rather, by making the amendment

directly applicable to these proceedings, the Council has rendered academic the

proper interpretation of ECIIFA as originally enacted and has instead required this

court to interpret ECIIFA as amended.



      Finally, AOBA contends in passing that applying the amendment to these

proceedings “would deprive AOBA of its substantive right to a hearing before the

Commission on the impact of the amendment.” This contention provides no basis

for concluding that the amendment is inapplicable to these proceedings. Rather,
                                      17

any right AOBA may have to a hearing before the Commission could be satisfied

if this court remanded these cases for the Commission to hold a hearing before

applying the amendment. We therefore turn to whether AOBA has a right to such

a hearing on remand.



                                       IV.



      AOBA argues that, even if the amendment applies to these proceedings, this

court cannot rely on the amendment to affirm the Commission‟s orders, because

the Commission never considered the amendment in the first instance. AOBA thus

asks the court at a minimum to remand the case to the Commission. As we have

already noted, however, there are exceptions to the rule that this court may not

affirm an administrative agency‟s ruling on grounds that were not relied upon by

the agency. See, e.g., Le Chic Taxicab Co., 614 A.2d at 945 (remand not required

where remand would be “pointless” because “it is apparent the [agency] would

reach the same result”); Bio-Med. Applications of District of Columbia, 829 A.2d

at 217 (“Although it could be argued that we should remand for the [agency] to

consider itself whether the Draft Chapter is binding, we see no need to do so where

it is clear what the agency‟s decision has to be.     As the Supreme Court has
                                        18

clarified, . . . courts [are not required] to remand in futility.”) (internal quotation

marks omitted).



      This case involves both exceptions to the general rule requiring remand. For

the reasons we have already described, the amendment unambiguously adopted

what the Commission had already done in the orders under review. It is highly

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

the conclusion it had already reached. Moreover, for the same reasons, if we were

to remand, it would be “clear what the agency‟s decision has to be.” Bio-Med.

Applications of District of Columbia, 829 A.2d at 217.



      AOBA argues, however, that we must remand to the Commission because

the amended ECIIFA is ambiguous. We conclude otherwise. As previously noted,

the amendment defines “[d]istribution service customer class cost allocations” as

“the allocation of the electric company‟s revenue requirement to each customer

rate class on the basis of the total rate class distribution service revenue minus the

customer charge revenue.”       D.C. Code Ann. § 34-1311.01 (8A).          When this

definition is inserted into the ECIIFA provision governing the allocation of the

DDOT charge, for example, the statute as amended reads as follows:
                                      19

      Assess DDOT Underground Electric Company Infrastructure
      Improvement Charges among the distribution service customer classes
      of the electric company in accordance with the [allocation of the
      electric company‟s revenue requirement to each customer rate class
      on the basis of the total rate class distribution service revenue minus
      the customer charge revenue] approved by the Commission for the
      electric company and in effect pursuant to the most recent base rate
      case . . . .


D.C. Code § 34-1313.01 (a)(4).


      AOBA argues that the amended statute is ambiguous in four respects. First,

AOBA suggests that the amended statute inaccurately implies that the proceeds

from the DDOT charge are revenue to Pepco, when in fact those proceeds must be

used to finance bonds issued by the District of Columbia. The amended statute,

however, does not treat the proceeds from the DDOT charge as revenue to Pepco.

Rather, it simply directs the Commission, when allocating the costs of paying the

DDOT charge, to follow the methodology that the Commission used in the most

recent base rate case to allocate the burden of meeting Pepco‟s revenue

requirement. D.C. Code § 34-1313.01 (a)(4); D.C. Code Ann. § 34-1311.01 (8A).

Put differently, the mention in the amendment of Pepco‟s “revenue requirement”

merely provides a point of reference for allocating among Pepco‟s consumers the

costs of paying the DDOT charge.
                                       20

      Second, AOBA argues that the amended statute is ambiguous because the

statute does not explicitly state whether the Commission may take steps in the

undergrounding proceedings to address the fact that Pepco‟s commercial customer

classes have generally been subsidizing the cost of services for residential

customer classes. We see no ambiguity on that point. The amended statute directs

the Commission to allocate the costs of the undergrounding project based on the

allocation of costs in its most recent base rate case, minus the customer charge

revenue.    That directive does not leave room for the Commission in the

undergrounding proceedings to independently address issues of subsidization. Of

course, if the Commission in subsequent base rate cases elects to further address

the issue of subsidization, then the allocation of costs utilized in those base rate

cases could well affect the allocation of costs in future orders issued in connection

with the undergrounding project. See, e.g., D.C. Code § 34-1313.01 (a)(4).



      Third, AOBA contends that the amended statute is ambiguous because it

appears to imply that the Commission in Formal Case 1103 excluded customer

charge revenues, when in fact the Commission approved such revenues. We do

not agree with this reading of the amended statute. Sensibly interpreted, the

amended statute requires that the cost allocation in the undergrounding

proceedings be made “on the basis of the total rate class distribution service
                                     21

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].”



      Finally, AOBA suggested at oral argument that the Council, in amending

ECIIFA to define “distribution service customer class cost allocations,” was

operating on the assumption that “customer charges” are exclusively used to

recoup costs associated with services such as metering and billing. In fact, AOBA

argues, the Commission in Formal Case 1103 permitted Pepco to use customer

charges to recoup costs for a wide variety of other expenditures, including

infrastructure improvements.   AOBA thus appears to argue that the amended

statute could be read to direct the Commission to exclude only those costs

associated with metering and billing when determining how to allocate

undergrounding charges. The difficulty with AOBA‟s argument on this point is

that the amendment does not direct the Commission to independently determine in

the undergrounding proceedings what kinds of costs are best recouped through

customer charges and then to allocate undergrounding costs accordingly. Rather,

the amended statute directs the Commission to take as a given the allocation of

costs in the most recent base rate case. The Commission must use the revenue

requirement allocated to each customer class in the most recent base rate case,
                                       22

minus the customer charge revenue approved in the most recent base rate case, as

the sole basis to allocate the costs of the undergrounding charges. D.C. Code § 34-

1313.01 (a)(4); § 34-1313.10 (c)(1); D.C. Code Ann. § 34-1311.01 (8A).         Any

ambiguities as to how best to assign costs to customer classes or how best to design

rates, including what kinds of costs are best treated as customer charges, thus must

be left to future base rate cases and are not relevant in these undergrounding

proceedings.



      The Council provided for expedited appellate review of the Commission‟s

final orders with respect to the undergrounding project. D.C. Code § 34-1313.18

(2015 Supp.). Moreover, the Council amended ECIIFA in part out of concern over

the delay caused by the present litigation. See Comm. on Bus., Consumer, &

Regulatory Affairs, Rep. & Recommendations, at 90 (explaining that ongoing

litigation was delaying start of undergrounding project). Under the circumstances,

and for the reasons we have already explained, remanding these proceedings would

not be warranted.



      The orders of the Commission are therefore

                                                          Affirmed.
