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City of O'Fallon v. Union Elec. Co.

Court of Appeals of Missouri, Western District, Second Division

April 28, 2015

CITY OF O'FALLON, MISSOURI and CITY OF BALLWIN, MISSOURI, Appellants,
v.
UNION ELECTRIC COMPANY d/b/a AMEREN MISSOURI, Respondent

Page 439

APPEAL FROM THE PUBLIC SERVICE COMMISSION.

Leland B. Curtis, Carl J. Lumley, Robert E. Jones, St. Louis, MO, Edward J. Sluys, Clayton, Mo. for appellant.

Kevin A. Thompson, Nathan C. Williams, Shely E. Brueggemann, Jefferson City, MO and Alexander J. Antal, St. Louis, MO for respondent Public Service Commission; Dustin J. Allison, Jefferson City, MO for Office of Public Council.

BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE, VICTOR C. HOWARD AND CYNTHIA L. MARTIN, JUDGES. ALL CONCUR.

OPINION

LISA WHITE HARDWICK

Page 440

The City of O'Fallon and the City of Ballwin (collectively, " Cities" ) appeal the Missouri Public Service Commission's order dismissing their complaint against Union Electric d/b/a Ameren Missouri (" Ameren" ) for failure to state a claim upon which relief could be granted. The Cities contend that the Commission had jurisdiction over their complaint and the statutory authority to grant them the relief they requested. For reasons explained herein, we affirm.

Factual and Procedural History

The Cities are municipal customers of Ameren who receive street lighting services. The Cities are billed pursuant to Ameren's 5(M) Street and Outdoor Area Lighting Tariff (" 5(M) Tariff" ) for Ameren-owned street lighting facilities. Pursuant to the 5(M) Tariff, Ameren inventories, furnishes, installs, maintains, and delivers electric service to automatically-controlled lighting fixtures. The City of O'Fallon has approximately 4444 street lights and pays over $1 million dollars per year to Ameren for its street lighting services. The City of Ballwin has approximately 2159 street lights and pays over $500,000 per year to Ameren for its street lighting services. The vast majority of the street lights serving the Cities have been in service for over ten years.

In April 2014, the Cities filed a complaint in the Commission against Ameren alleging that Ameren's tariff provisions for street lighting services and its refusal to tariff or otherwise offer the Cities the opportunity to purchase the depreciated street light fixtures were unreasonable, uneconomic, and contrary to the public interest. The Cities noted that Ameren has a different tariff, the 6(M) Tariff, for its customers who own their street lighting fixtures, and the rates for lighting services under this tariff are considerably less than the rates under the 5(M) Tariff for Ameren-owned lighting fixtures. The Cities alleged that if they, instead of Ameren, owned the street lights, their payments under the 6(M) Tariff would result in O'Fallon's saving approximately $820,000 per year in street lighting costs and Ballwin's saving approximately $400,000 per year.

The Cities further noted that paragraph 7 of the 5(M) Tariff provides for termination of the street lighting service:

Termination
If customer requests in writing the termination of all or a portion of any lighting service, not paid for in advance, within three years of the installation of the lamps being terminated, or within ten years of the installation of post top

Page 441

luminaires, wood poles or cable being terminated, customer shall pay in advance to Company $100.00 per lamp for both the removal costs associated therewith and the loss of the remaining life value of such facilities. If said request for termination of lighting service is made after the above three and ten year in-service periods, as applicable, and customer requests a new lighting installation within twelve months after the removal of the prior terminated lighting facilities, customer shall pay the amount ...

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