filed rate doctrine in Texas

2020In describing the filed-rate doctrine in Grant, however, the Texas Supreme Court repeatedly noted a filed tariff governs a utility’s relationship with its customers and prohibits a customer from suing the utility over issues the tariff’s terms govern. 73 S.W.3d at 217, 222 .

2014See Grant, 73 S.W.3d at 216-17 (explaining that the filed-rate doctrine is a novel aspect of cases involving utilities that precludes claims seeking to enforce contracts that contradict a filed tariff’s terms); see also In re Birch Telecom, Inc., No. 05-12237(PJW), 2009 WL 1531792 , at *2 (Bankr.D.Del.

2006That authority led to the development of the filed rate doctrine, which states that a *802 utility’s “right to a reasonable rate [under the Federal Power Act] is the right to the rate which the Commission files or fixes, and, ... except for review of the Commission’s orders, [a] court can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.” Id. (quoting Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 963-64 , 106 S.Ct. 2349 , 90 L.Ed.2d 943 (1986)).

2006That authority led to the development of the filed rate doctrine, which states that a *802 utility’s “right to a reasonable rate [under the Federal Power Act] is the right to the rate which the Commission files or fixes, and, ... except for review of the Commission’s orders, [a] court can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.” Id. (quoting Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 963-64 , 106 S.Ct. 2349 , 90 L.Ed.2d 943 (1986)).

2006See East Tenn. Natural Gas Co. v. Federal Energy Regulatory Comm'n , 631 F.2d 794 , 800 n.10 (D.C.

2006See East Tenn. Natural Gas Co. v. Federal Energy Regulatory Comm’n, 631 F.2d 794 , 800 n.10 (D.C.

2011See CenterPoint Energy Entex, 208 S.W.3d at 616-26 .

2011See, *624 e.g., Centerpoint Energy Entex v. Railroad Comm’n of Tex., 208 S.W.3d 608 (Tex.App.-Austin 2006, pet. dism’d); Gulf States Utils., 841 S.W.2d at 459 .

2006That authority led to the development of the filed rate doctrine, which states that a *802 utility’s “right to a reasonable rate [under the Federal Power Act] is the right to the rate which the Commission files or fixes, and, ... except for review of the Commission’s orders, [a] court can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.” Id. (quoting Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 963-64 , 106 S.Ct. 2349 , 90 L.Ed.2d 943 (1986)).

2005See Mississippi Power and Light Co., 487 U.S. at 372 , 108 S.Ct. 2428 .

2024Grant, 73 S.W.3d at 217 (citing Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 673-75 (Tex 1999). 13 ERCOT’s Level 3 Emergency declaration and emergency load shed orders.

2013See id. at 219-222 ; Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 672-75 (Tex. 1999).

2002Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 126 , 110 S.Ct. 2759 , 111 L.Ed.2d 94 (1990); Arkansas La.

2002Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 126 , 110 S.Ct. 2759 , 111 L.Ed.2d 94 (1990); Arkansas La.

2007See AT & T, 524 U.S. at 222 , 118 S.Ct. 1956 (noting that, under the filed-rate doctrine, the rate a regulated carrier has filed is the only lawful charge).

2007See AT & T, 524 U.S. at 222 , 118 S.Ct. 1956 (noting that, under the filed-rate doctrine, the rate a regulated carrier has filed is the only lawful charge).

2024The filed rate doctrine accordingly “bars judicial recourse . . . based upon allegations that the entity’s ‘filed rate’ is too high, unfair, or unlawful.” TCE, 413 F.3d at 507 ; see also Metro-Link, 919 S.W.2d at 692–93 (filed rate doctrine “prohibits a customer from claiming a lower rate than” the filed rate approved by the regulatory agency).

2024Though the filed rate doctrine originated in the context of federal regulation, the doctrine “applies equally where state law creates a state agency and a statutory scheme pursuant to which the state agency determines reasonable rates.” Metro-Link, 919 S.W.2d at 692–93.

2000See Keogh v. Chicago & Northwestern Ry., 260 U.S. 156, 163 , 43 S.Ct. 47 , 67 L.Ed. 183 (1922).

2000See Keogh v. Chicago & Northwestern Ry., 260 U.S. 156, 163 , 43 S.Ct. 47 , 67 L.Ed. 183 (1922).

1999Id.

1998As stated by the United States Supreme Court, “[t]he tariff can no more exempt the broken promise of preference that is willful than it can the broken promise of preference that is unintentional.” Id.; see also Metro-Link Telecom, Inc., 919 S.W.2d at 693 (holding the filed rate doctrine applies to bar state as well as federal causes of action); Fax Telecommunicaciones, 952 F.Supp. at 951 (holding the filed tariff doctrine precludes an aggrieved customer from asserting estoppel against the carrier).

2024The doctrine also categorically bars claims alleging that a plaintiff has been “forced to pay prices for electricity in excess of rates that would have been achieved in a competitive market,” and forecloses judicial relief based on a hypothetical comparison of “the filed rate and the rate that might have been approved absent the conduct in issue.” Jenkins v. Entergy Corp., 187 S.W.3d 785, 805 (Tex. App.—Corpus Christi 2006, no pet.).

2024But wholesale electricity prices set by ERCOT under the PUCT’s oversight and plenary authority are filed rates under the filed rate doctrine, and are thus “unassailable in judicial proceedings.” TCE, 413 F.3d at 508–10. -4- Appx.

2024The filed rate doctrine accordingly “bars judicial recourse . . . based upon allegations that the entity’s ‘filed rate’ is too high, unfair, or unlawful.” TCE, 413 F.3d at 507 ; see also Metro-Link, 919 S.W.2d at 692–93 (filed rate doctrine “prohibits a customer from claiming a lower rate than” the filed rate approved by the regulatory agency).

2022LLC, 964 F.3d 213 , 217 & n.4 (3d Cir. 2020) (holding that the filed-rate doctrine applied even though the party suing did not pay the premium on the underlying tariff); Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314, 1322 (11th Cir. 2018) (“An important, though heretofore overlooked, corollary of the nondiscrimination and nonjusticiability principles is that the filed-rate doctrine’s applicability does not turn on whether the plaintiff is a rate-payer. . . .

2022Even non-customers, for instance, cannot directly challenge a filed rate.”); U.S. Airways, Inc. v. Qwest Corp., 361 P.3d 942, 946-49 (Ariz. Ct. App. 2015) (holding that a tariff’s limitation of liability extended to a noncustomer’s claims), aff’d in relevant part & depublished in nonrelevant part, 385 P.3d 412 (Ariz. 2016) (per curiam); Colich & Sons v. Pac.

2022Co., 794 F.3d 256, 259 (2d Cir. 2015) (“[A] claim challenging a regulator-approved rate is subject to the filed rate doctrine whether or not the rate is passed through an intermediary.

2020More recently, the court described a tariff as setting the “rates and terms for a utility’s relationship with its retail customers.” City of Richardson, 539 S.W.3d at 254 (emphasis added).

2007See Mincron SBC Corp. v. Worldcom, Inc., 994 S.W.2d 785, 789 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (citing Keogh v. Chicago & Nw.

2006Dist., 917 S.W.2d 19, 23-24 (Tex. 1996); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd., 156 S.W.3d 91, 104 (Tex. App.—Austin 2004, pet. denied); Amaral- Whittenberg v. Alanis, 123 S.W.3d 714 , 719 n.4 (Tex. App.—Austin 2003, no pet.). 25 Conclusion concerning retroactive reviews of gas purchases After careful review of Entex’s arguments, we have concluded that the Commission’s claimed authority to conduct retroactive reviews of gas purchases and to order refunds has statutory support and does not violate either the filed rate doctrine or the rule against retroactive ratemaking.

2006Dist., 917 S.W.2d 19, 23-24 (Tex. 1996); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd., 156 S.W.3d 91, 104 (Tex. App.—Austin 2004, pet. denied); Amaral- Whittenberg v. Alanis, 123 S.W.3d 714 , 719 n.4 (Tex. App.—Austin 2003, no pet.). 25 Conclusion concerning retroactive reviews of gas purchases After careful review of Entex’s arguments, we have concluded that the Commission’s claimed authority to conduct retroactive reviews of gas purchases and to order refunds has statutory support and does not violate either the filed rate doctrine or the rule against retroactive ratemaking.