Could a South Carolina nonprofit water company give only residential customers one free month?

Plain-English summary

In 2013, South Carolina's Attorney General did not decide whether a nonprofit water company could give residential customers a free month while charging business customers. The office found no prior AG opinion directly on point and said the Office of Regulatory Staff should interpret the issue first. It cited that office's duty to investigate complaints affecting the public interest.

The AG explained its practice of giving respectful consideration to the interpretation of the agency responsible for administering the relevant law. The opinion supplies no approval or prohibition of the proposed customer-rate distinction.

What this means for you

Nonprofit water-company managers

The opinion leaves the proposed residential-only free month unresolved. It identifies the Office of Regulatory Staff as the first body to address the utility question.

Residential and business customers

Neither customer group receives a legal ruling on the free-month proposal from this opinion. The AG deferred to the regulator before giving its own interpretation.

Utility regulators

The AG pointed to the Office of Regulatory Staff's statutory role in investigating public-interest complaints and, where appropriate, making recommendations to the Public Service Commission.

Currency note

This opinion was issued in 2013 and did not decide the rate question. Later regulatory action or law may bear on it. Verify current authority before relying on the historical exchange.

Common questions

Q: Did the AG approve a free month for residential customers only? A: No. It expressly deferred the question to the Office of Regulatory Staff.

Q: Did the AG say the proposal was unlawful?
A: No. The opinion gave no substantive answer either way.

Q: Why did it refer the issue to another office?
A: The AG said the Office of Regulatory Staff investigates public-interest utility complaints and its interpretation should come first.

Background and statutory framework

A legislator asked about a nonprofit water company's proposed customer distinction. The AG found no directly on-point prior opinion and cited the utility regulator's statutory complaint and recommendation role as its reason for withholding a substantive answer.

Citations and references

• Section 58-4-50(A)(5) of the South Carolina Code: Office of Regulatory Staff duties quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-11-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/06/moss-d-c-os-9551-6-11-13-water-company-free-month-of-water.pdf

Original opinion text

ALAN WILSON
ATIORNEY GENERAL

June 11, 2013

The Honorable Dennis Moss
Member, House of Representatives
306 Silver Circle
Gaffney, South Carolina 29340
Dear Representative Moss:
Attorney General Alan Wilson has referred your letter of February 11, 2013 to the Opinions section for a response. The following is our understanding of your question presented and the opinion of this Office concerning the issue based on that understanding.

Issue: May a nonprofit water company provide a month of free water to its residential customers but not to its business customers? Law/Analysis: After reviewing our prior opinions, we did not find any prior opinions directly on point. It is this Office's longstanding policy (as it is the courts') to defer to the administrative agency charged with the regulation concerning the subject matter. As this Office stated in a previous opinion, "as a general matter, it is well recognized that administrative agencies possess discretion in the area of effectuating the policy established by the Legislature in the agency's governing law. As our Supreme Court has recognized, ' construction of a statute by the agency charged with executing it is entitled to the most respectful consideration [by the cou1ts] and should not be overruled absent cogent reasons. ' Op. S.C. Atty. Gen., October 20, 1997, quoting Logan v. Leatherman, 290 S.C. 400, 351 S.E.2d 146, 148 (1986). The Courts have stated that it is not necessary that the administrative agency's construction be the only reasonable one or even one the court would have reached if the question had initially arisen in a judicial proceeding. Ill. Commerce Comm . v. Interstate Commerce Comm ., 749 F.2d 825 (D.C.Cir. 1984). Typically, so long as an administrative agency's interpretation of a statutory provision is reasonable, we defer to that agency's construction. " Op. S.C. Atty. Gen., 2006 WL 269609 (January 20, 2006). Thus, after checking with the South Carolina Public Service Commission, we were told it is the duty of the Office of Regulatory Staff (pursuant to S.C. Code Section 58-4-50(A)(5)) to investigate a ll complaints and questions concerning issues such the one you presented. South Carolina Code Section 58-4-50(A)(5) provides that: A) It is the duty and responsibility of the [Office of] regulatory staff to: 5) investigate complaints affecting the public interest generally, including those which are directed to the commission, commissioners, or commission employees, and where appropriate, make recommendations to the commission with respect to these complaints;

REMBERTC. DENNIS BU!LD!NG .

PosTOFF!cE Boxl l549 . COLUMBIA SC ?92ll - 1549. T ELEPHONE803 7343970
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ACSlMILE 0 3-253-6283

The Honorable Dennis Moss
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June 11, 2013

Therefore, we suggest first checking with the Office of Regulatory Staff and following their interpretation of your question. While this Office could opine on what it believes is the proper interpretation of the law, it is the policy of this Office to defer to the appropriate regulating agency's interpretation first. Sincerely,

Anita Smith Fair
Assistant Attorney General
REVIEWED AND APPROVED BY:

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Deputy Attorney General