The Fair Trading Commission (FTC) has been given seven days to reverse its decision not to compel the Barbados Light and Power Company (BLPC) to release key financial documents, or face possible legal action from intervenor consumer advocates.
This development comes amid the latest exchange of letters between FTC counsel Alrick Scott and Hallop, senior counsel for the intervenors.
In a letter to Gollop last Thursday, Scott reiterated that the commission would not honour the request, arguing there was no statutory obligation to order the release of the reports.
“The FTC will not mandate the BLPC to provide the information or documents set out in your letter for the reasons given above, unless you can provide a clear statutory basis (and I have seen none) for your request,” wrote Scott.
Scott also contested the intervenors’ interpretation of the Utilities Regulations Act, noting that the regulations apply only while rate review proceedings are active.
Gollop, working alongside Ralph Thorne SC on behalf of intervenor Ricky Went and his team, is challenging the FTC’s rationale for refusing the request. The regulator maintains that it has already issued its decision on the rate review and that the proceedings are now closed.
But in a letter to Scott on Wednesday, Gollop warned the commission that unless it agreed to supply the requested information, turning to the courts would be an option.
“Based on the position expressed by both parties, the fundamental issue surrounds whether or not the proceedings are closed,” Gollop wrote. “Unless on review your client decides to reverse its position, then, we will have no option but to advise our client that a determination may have to be made by an arbitrator or the court.”.
He added: “You correctly stated that… ‘BLPC has reviewed the FTC’s review decision on BLPC’s application for review for electricity rates. That matter is before the High Court. If it is your client’s contention that documents are relevant to that hearing, it would be proper for your client to make the application to the High Court, which we would advise the FTC to oppose.’”
“Our client did inquire about this option as well, and our advice was in line with your view. As we await further instructions from our client, it would be taken that ‘FTC will not mandate BLPC to provide the documents or information requested,’ unless you advise otherwise within seven days.”
The consumer advocates’ attorney referenced Scott’s response to his correspondence dated September 29, in which the FTC made clear it would not order the utility company to provide the requested reports.
Gollop acknowledged Scott’s reliance on Rule 64(3) of the Utility Regulations Rules, which states that intervenors’ rights of participation are to be exercised prior to a hearing after an application to the FTC, and hearing rights are exercised during the hearing before a decision is given.
He said: “You further contended that intervenor participation is specifically limited to participating during the rate review hearing.”
According to Gollop, Scott’s position appeared to suggest that intervenors would not normally be allowed to give input after the FTC issued its decision and order on February 15, 2023.
“However, in our view, the proceedings are not closed,” argued Gollop, adding that Rule 31(1) of the Utility Regulations (Procedural) Rules 2003 permits all approved intervenors to request information or particulars relevant to the proceedings from the utility.
Lead intervenor, Ricky Went, told Barbados TODAY that between now and the end of the seven-day ultimatum, his team would consider what options to take in response to the FTC’s stance.
The intervenors have called for the following documents to be provided:
– The “Compliance Filing” referred to in the commission’s 2023 Decision and Order
– Audited non-consolidated financial reports for 2022-2024 and the half-year to 30 June
– Audited reports for those years in the established “Test Year” format
Audited statements for the company’s Self-Insurance Fund for 2022-2024, with a half-year report to June 30
The FTC was given until last Friday to comply with the requests. The intervenors reminded the commission that responses were still outstanding to communications sent on August 12 and September 12 this year, as well as correspondence from November 2023.
In his letter, the FTC’s Scott insisted there was no legal basis for the discovery process to continue beyond the regulatory decision. He emphasised that Light and Power’s review decision was already under appeal before the High Court. If intervenors wanted the information for court proceedings, Scott suggested, the proper route was through an application to the court, not to the commission.
Scott argued that the intervenors had no statutory right or authority to monitor utility rate recovery after hearings concluded, as such compliance or enforcement responsibilities rest with the regulator.
The intervenors’ rights apply only during the hearing phase, such as leading evidence and cross-examining witnesses, and those rights cease once a decision is issued, he added.
emmanueljoseph@barbadostoday.bb
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