On July 25, 2007, the Public Utilities Commission of Ohio (“PUCO” or “Commission”) adopted its Opinion and Order in Case No. 06-890-EL-CSS involving a complaint brought by Ohio Power Company (“Ohio Power”) against Consolidated Electric Cooperative (“Consolidated”). The City of Delaware, the Industrial Energy Users-Ohio, and American Municipal Power-Ohio were granted intervention and participated in the case.

In its July 10, 2006 Complaint, Ohio Power claimed that Consolidated had violated the Certified Territories Act (“CTA”) by providing electric service to customers within Ohio Power’s certified territory boundary. There was no dispute that the customers in question were located within Ohio Power’s certified territory boundaries; rather, the controversy involved the fact that both Ohio Power and Consolidated held identical, non-exclusive franchise agreements with the Village of Lexington to provide electric services within that village.

The question before the Commission was whether the language within the CTA (R.C. Sections 4933.81 to 4933.90), that “nothing [within the CTA] shall impair the power of municipal corporations to require franchises or contracts for the provision of electric service within their boundaries…”, means that an electric utility is prevented from claiming the protection of the CTA where so doing would contravene its non-exclusive franchise to serve the territory of the municipality.

The Commission concluded that the CTA is clear that its provisions granting electric utilities the exclusive right to serve within their certified territories may not interfere with the rights of municipalities to establish their own utilities or issue franchises and contracts for utility services.

The Commission’s decision affirms the constitutional authority of home rule municipalities to govern the provision of utility services within their boundaries free from the threat of competing CTA claims of a particular utility.

In the Matter of the Complaint of Ohio Power Company v. Consolidated Electric Cooperative, Inc., Case No. 06-890-EL-CSS, July 25, 2007. http://dis.puc.state.oh.us/DocumentRecord.aspx?DocID=a03ac4c2-90b0-4b1c-a562-48733995be71