Crime does not pay, SFELAPCO

“WHILE WE were greatly surprised by the recent decision of the Energy Regulatory Commission as regards our Motion for Reconsideration, we fully respect it.

Since our official mandate is to distribute power to our consumers in our respective franchise areas, the generation cost that we collect as a “pass-through charge” from our customers all goes to the power producers.

With all due respect to ERC, we believe that the Commission misappreciated the facts of the case and hence, we will seek all available remedies accorded to us by law.

On our part, we will remain steadfast in assuring each of our consumers with quality service at all times.”

SFELAPCO SPEAKS WITH A FORKED TONGUE in the statement it issued following the order of the Energy Regulatory Commission denying its motion for reconsideration of the March 3, 2023 decision of the commission exacting penalties and ordering a refund of overcharges the power distributor collected in  multiple violations of Sec. 1, Article VI Guidelines for the Recovery of Cost for the Generation Component of Distribution Utilities Rates and RA 9136 (An Act Ordering Reforms in the Electric Power Industry) and ERC Rules and Regulations.  

If SFELAPCO so respects the decision, as it claims, why can’t it just follow what the ERC order lawfully prescribes, to wit: 

PAY the imposed penalty of P21,600,000 as directed in the March 3 decision. ERC stressing that such penalty “was already due last March 3 and must be immediately complied with.”

REFUND the other charges amounting to P654,394,381.84 within the next billing cycle from receipt of the order.

REFUND the imposed generation charges in excess of DU (distribution utility) load- weighted average NPC-TOU (time of use) rate for the period of Jan. 2013-Dec. 2022 in the amount of P1,769,924,493.39 starting the next billing cycle from receipt of the order spread out in 12 billing cycles.

For a total of P2,445,918,875.23 only. Much too much?

A paltry really, considering the number of years that SFELAPCO had been raking it in, ripping its captive consumers’ pockets. Just take that 10-year period SFELAPCO collected imposed excessive generation charges. One can only weep, rant and rage, rage, rage.  

Invoking respect for ERC again, SFELAPCO said it believed the commission “misappreciated the facts of the case.” Hence, its legal right to “seek all available remedies.”

The only misappreciation of the facts here is of, for, and by SFELAPCO.

The ERC decision to deny SFELAPCO’s motion for consideration is grounded not only on solid legal arguments but – more so, for the benefit of anyone who can think – on sound reason. Writ in stone, so to speak:

1.     Defenses not pleaded in the answer are deemed waived. 

2.     Refund is not a penalty, but is a natural consequence of a finding of violation on the part of SFELAPCO which resulted to the overcharging of consumers.

3.     The pass-through nature of the collected unapproved generation charges does not exculpate SFELAPCO from its violations.

4.     SFELAPCO’s act of charging its consumers of unapproved generation charges without any form of verification belied its argument that its implementation is for consumer protection.

5.     SFELAPCO’s argument favors APRI (Aboitiz Power Resources Inc.), its supplier and deviates from its claim of protecting its consumers.

6.     There is nothing in the Commission’s decision in ERC Case No. 2014-041 CF that provides for automatic extension of PSA (power supply agreement).

7.     Non-approval of previously filed pleadings does not equate to approval.

8.     SFELAPCO’s inclusion of the DAA (deferred accounting adjustment) and FBHC (financial benefits to host communities) in its load-weighted average NPC-TOU rates is without basis under the rules of the Commission.

9.     Absent an approval PSA that provides WESM (wholesale electricity spot market) charges to be collected, there is no basis for these charges to be collected from consumers.

10. SFELAPCO failed in its duty to ensure least cost of supply to its captive consumers.

The ten points predicated by legal – and scholarly – substantiations that rendered all counter-arguments advanced by SFELAPCO “without merit, nothing but empty claim, absurd, untenable, misplaced.” Hence, without any cogent reason SFELAPCO offered the ERC denial of the MR.

Further, the ERC order impacted upon SFELAPCO that filing an MR “did not prevent the Decision from being executory sans stay order from the ERC” and that the instant Order (of June 1, 2023) shall be executory despite any appeal to higher courts, unless an injunction and/or restraining order is issued in accordance with Sec 78 of EPIRA (Electric Power Industry Reform Act of 2001).”

Yes, SFELAPCO, you can seek your available remedies accorded by law, but you have to pay. Now.

Finally, a stern warning:  Continued refusal to comply with the ERC Decision of March 3, 2023 and the instant Order of June 1, 2023 within the prescribed period therein shall compel the commission to refer to the DOJ for possible filing of criminal action against the board of directors and officers of SFELAPCO pursuant to Section 46 of EPIRA.

And crime does not pay, SFELAPCO.

VICTORY. City of San Fernando Mayor Vilma Balle-Caluag, the initiator of actions against the perceived abuses of SFELAPCO, holds copy of the ERC order. Contributed photo