PRIOR PRINTER'S NOS. 286, 1817, 2547,         PRINTER'S NO. 3925
        3216

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 265 Session of 1987


                     Report of the Committee of Conference

        To the Members of the House of Representatives and Senate:

           We, the undersigned, Committee of Conference on the part of
        the House of Representatives and Senate for the purpose of
        considering House Bill No. 265, entitled:
        "An act * * * PROVIDING FOR THE OFFICE OF SMALL BUSINESS
        ADVOCATE IN THE OFFICE OF ATTORNEY GENERAL; PROVIDING FOR THE
        POWERS AND DUTIES OF THE OFFICE OF SMALL BUSINESS ADVOCATE AND
        THE PENNSYLVANIA PUBLIC UTILITY COMMISSION IN RELATION THERETO;
        AND MAKING A TEMPORARY APPROPRIATION,"



        respectfully submit the following bill as our report:

                                           ITALO S. CAPPABIANCA

                                           WILLIAM R. LLOYD, JR.

                                           DONALD W. DORR

                (Committee on the part of the House of Representatives.)

                                           CLARENCE D. BELL

                                           ROY C. AFFLERBACH

                                  (Committee on the part of the Senate.)



                                     AN ACT

     1  Providing for the Office of Small Business Advocate in the
     2     Department of Commerce; providing for the powers and duties
     3     of the Office of Small Business Advocate and the Pennsylvania
     4     Public Utility Commission in relation thereto; and making a
     5     temporary appropriation.

     6     The General Assembly of the Commonwealth of Pennsylvania
     7  hereby enacts as follows:
     8  Section 1.  Short title.
     9     This act shall be known and may be cited as the Small
    10  Business Advocate Act.
    11  Section 2.  Definitions.
    12     The following words and phrases when used in this act shall
    13  have the meanings given to them in this section unless the
    14  context clearly indicates otherwise:
    15     "Commission."  The Pennsylvania Public Utility Commission.
    16     "Public utility."  A public utility as defined in 66 Pa.C.S.
    17  § 102 (relating to definitions).
    18     "Small business consumer."  A person, sole proprietorship,
    19  partnership, corporation, association or other business entity
    20  which employs fewer than 250 employees and which receives public
    21  utility service under a small commercial, small industrial or
    22  small business rate classification.
    23  Section 3.  Office of Small Business Advocate.
    24     (a)  Office established.--There is hereby established within
    25  the Department of Commerce an Office of Small Business Advocate
    26  to represent the interest of small business consumers before the
    27  commission.
    28     (b)  Small Business Advocate.--The Governor shall appoint a
    29  Small Business Advocate, which appointment shall be subject to
    30  the approval of a majority of the members elected to the Senate.


     1  The Small Business Advocate shall serve as Small Business
     2  Advocate until a successor is appointed and qualified.
     3     (c)  Qualifications.--The Small Business Advocate shall be a
     4  person who by reason of training, experience and attainment is
     5  qualified to represent the interest of small business consumers.
     6  Compensation shall be set by the Executive Board.
     7     (d)  General restrictions.--No individual who serves as a
     8  Small Business Advocate shall, while serving in such position,
     9  engage in any business, vocation or other employment, or have
    10  other interests, inconsistent with his official
    11  responsibilities, nor shall he seek or accept employment nor
    12  render beneficial services for compensation with any "person" or
    13  "corporation," as defined in 66 Pa.C.S. § 102 (relating to
    14  definitions), subject to the authority of the commission during
    15  the tenure of the appointment and for a period of two years
    16  after the appointment is served or terminated.
    17     (e)  Political office restrictions.--Any individual who is
    18  appointed to the position of Small Business Advocate shall not
    19  seek election nor accept appointment to any public office during
    20  the tenure as Small Business Advocate and for a period of two
    21  years after the appointment is served or terminated.
    22     (f)  Secretary of Commerce restrictions.--The Secretary of
    23  Commerce shall have administrative responsibilities for the
    24  office only and shall not be responsible, in any manner, for the
    25  policies, procedures or other substantive matters developed by
    26  the Office of Small Business Advocate in carrying out its duties
    27  under this act to represent the small business consumer.
    28  Section 4.  Assistant advocates; employees.
    29     The Small Business Advocate, with the approval of the
    30  Secretary of Commerce, shall appoint attorneys as assistant
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     1  small business advocates, and such additional clerical,
     2  technical and professional staff as may be appropriate, and may
     3  contract for such additional services as shall be necessary for
     4  the performance of his function. The compensation of assistant
     5  small business advocates and such clerical, technical and
     6  professional staff shall be set by the Executive Board. No
     7  assistant small business advocate or other staff employee shall,
     8  while serving in such position, engage in any business, vocation
     9  or other employment, or have other interests, inconsistent with
    10  his official responsibilities.
    11  Section 5.  Powers and duties of the Small Business Advocate.
    12     (a)  Representing interests of small business consumers.--In
    13  addition to any other authority conferred upon him by this act,
    14  the Small Business Advocate is authorized, and it shall be his
    15  duty in carrying out his responsibilities under this act, to
    16  represent the interest of small business consumers as a party,
    17  or otherwise participate for the purpose of representing an
    18  interest of small business consumers before the commission in
    19  any matter properly before the commission, and before any court,
    20  or agency, initiating proceedings if in his judgment such may be
    21  necessary, in connection with any matter involving regulation by
    22  the commission or the corresponding regulatory agency of the
    23  United States, whether on appeal or otherwise initiated.
    24     (b)  Monitoring and participating in proceedings.--The Small
    25  Business Advocate may monitor all cases before corresponding
    26  regulatory agencies of the United States, including the Federal
    27  Communications Commission and the Federal Energy Regulatory
    28  Commission, which impact upon the interests of Pennsylvania
    29  small business consumers, and may formally participate in those
    30  proceedings which in his judgment warrant such participation.
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     1     (c)  Exercise of discretion.--The Small Business Advocate may
     2  exercise discretion in determining the interests which will be
     3  advocated in any particular proceeding and in determining
     4  whether or not to participate in or initiate any particular
     5  proceeding and, in so determining, shall consider the public
     6  interest, the resources available and the substantiality of the
     7  effect of the proceeding on the interest of small business
     8  consumers. The Small Business Advocate may refrain from
     9  intervening when, in the judgment of the Small Business
    10  Advocate, such is not necessary to represent adequately the
    11  interest of small business consumers.
    12     (d)  Action upon petition.--In addition to any other
    13  authority conferred upon him by this act, the Small Business
    14  Advocate is authorized to represent an interest of small
    15  business consumers which is presented to him for his
    16  consideration upon petition in writing by a substantial number
    17  of small business consumers. The Small Business Advocate shall
    18  notify the principal sponsors of any such petition of the action
    19  taken or intended to be taken by him with respect to the
    20  interest of consumers presented in such petition. If the Small
    21  Business Advocate declines or is unable to represent such
    22  interest, he shall notify such sponsors and shall state his
    23  reasons.
    24     (e)  Name in which action is brought.--Any action brought by
    25  the Small Business Advocate before a court or any agency of this
    26  Commonwealth shall be brought in the name of the Small Business
    27  Advocate. The Small Business Advocate may name a small business
    28  consumer or group of small business consumers in whose name the
    29  action may be brought or may join consumers in bringing such
    30  action.
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     1     (f)  Issuance of written statement.--At such time as the
     2  Small Business Advocate determines, in accordance with
     3  applicable time limitations, to initiate, intervene or otherwise
     4  participate in any commission, agency or court proceeding, he
     5  shall issue publicly a written statement, a copy of which he
     6  shall file in the proceeding in addition to any required entry
     7  of his appearance, stating concisely the specific interest of
     8  small business consumers to be protected.
     9  Section 6.  Assessment upon public utilities; disposition,
    10                 appropriation and disbursement of such
    11                 assessments.
    12     (a)  Estimate of expenditures.--Before November 1 of each
    13  year, the Small Business Advocate shall estimate the total
    14  expenditures for the Office of Small Business Advocate and
    15  submit the estimate to the Governor in accordance with section
    16  610 of the act of April 9, 1929 (P.L.177, No.175), known as The
    17  Administrative Code of 1929. At the same time the Small Business
    18  Advocate submits his estimate to the Governor, the Small
    19  Business Advocate shall also submit the estimate to the General
    20  Assembly. Such estimate shall not exceed 0.0125% of the total
    21  gross intrastate operating revenues of all public utilities
    22  subject to the jurisdiction of the commission for the preceding
    23  calendar year. The Small Business Advocate, or his designated
    24  representatives, shall be afforded an opportunity to appear
    25  before the Governor and the Senate and House Appropriations
    26  Committees regarding his estimate. If the General Assembly fails
    27  to approve the Small Business Advocate's budget for the purposes
    28  of this section by March 20, the commission shall assess public
    29  utilities on the basis of the last approved allocation. At such
    30  time as the General Assembly approves the proposed budget, the
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     1  Small Business Advocate and the commission shall make an
     2  adjustment in the assessment to reflect the approved budget. The
     3  Office of Small Business Advocate shall subtract from the budget
     4  finally approved by the General Assembly any balance of the
     5  appropriation to be carried over into such fiscal year from the
     6  preceding one. The remainder so determined shall constitute the
     7  total assessment, and shall be allocated to and paid by public
     8  utilities in the manner hereafter prescribed.
     9     (b)  Allocation of assessment.--For each fiscal year the
    10  allocation shall be made as follows:
    11         (1)  The Office of Small Business Advocate shall
    12     determine for the preceding calendar year the amount of its
    13     expenditures directly attributable, or in its judgment
    14     properly allocable, to its activities in connection with each
    15     group of utilities furnishing the same kind of service and
    16     debit the amount so determined to such group.
    17         (2)  The Office of Small Business Advocate shall then
    18     allocate the total assessment prescribed in subsection (a) to
    19     each group in the proportion which the sum of the debits made
    20     to it bears to the sum of the debits made to all groups. The
    21     Office of Small Business Advocate shall transmit to the
    22     commission the result of the aforesaid allocation.
    23     (c)  Collection of assessment.--The commission shall
    24  thereafter complete the assessment procedure and collect the
    25  assessments as follows: Each public utility within a group shall
    26  then be assessed for and shall pay to the commission such
    27  proportion of the amount allocated to its group as the gross
    28  intrastate operating revenues of the public utility for the
    29  preceding calendar year bear to the total gross intrastate
    30  operating revenues of its group for that year. The commission
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     1  shall give notice by registered mail to each public utility of
     2  the amount lawfully charged against it under the provisions of
     3  this section, which amount shall be paid by the public utility
     4  within 30 days of receipt of such notice, unless the commission
     5  specifies on the notices sent to all public utilities an
     6  installment plan of payment, in which case each public utility
     7  shall pay each installment on or before the date specified
     8  therefor by the commission. Within 15 days after receipt of such
     9  notice, the public utility against which such assessment has
    10  been made may file with the commission objections setting out in
    11  detail the grounds upon which the objector regards such
    12  assessment to be excessive, erroneous, unlawful or invalid. The
    13  commission, after notice to the objector, shall hold hearing
    14  upon such objections. After such hearing, the commission shall
    15  record upon its minutes its findings on the objections and shall
    16  transmit to the objector, by registered mail, notice of the
    17  amount, if any, charged against it in accordance with such
    18  findings, which amount, or any installment thereof, then due
    19  shall be paid by the objector within ten days after receipt of
    20  the notice of the findings of the commission with respect to
    21  such objections. If any payment prescribed by this subsection is
    22  not made as aforesaid, the commission may suspend or revoke
    23  certificates of public convenience, certify automobile
    24  registrations to the Secretary of Transportation for suspension
    25  or revocation or, through the Office of Attorney General, may
    26  institute an appropriate action at law for the amount lawfully
    27  assessed, together with any additional cost incurred by the
    28  commission or the Office of Attorney General by virtue of such
    29  failure to pay.
    30     (d)  No delay.--No suit or proceeding shall be maintained in
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     1  any court for the purpose of restraining or in any way delaying
     2  the collection or payment of any assessment made under
     3  subsections (a), (b) and (c), but every public utility against
     4  which an assessment is made shall pay the same as provided in
     5  subsection (c). Any public utility making any such payment may,
     6  at any time within two years from the date of payment, sue the
     7  Commonwealth in an action at law to recover the amount paid, or
     8  any part thereof, upon the ground that the assessment was
     9  excessive, erroneous, unlawful or invalid, in whole or in part,
    10  provided that objections, as hereinbefore provided, were filed
    11  with the commission and payment of the assessment was made under
    12  protest either as to all or part thereof. In any action for
    13  recovery of any payments made under this section, the claimant
    14  shall be entitled to raise every relevant issue of law, but the
    15  findings of fact made by the commission, pursuant to this
    16  section, shall be prima facie evidence of the facts therein
    17  stated. Any records, books, data, documents and memoranda
    18  relating to the expenses of the Office of Small Business
    19  Advocate shall be admissible in evidence in any court and shall
    20  be prima facie evidence of the truth of their contents. If it is
    21  finally determined in any such action that all or any part of
    22  the assessment for which payment was made under protest was
    23  excessive, erroneous, unlawful or invalid, the Office of Small
    24  Business Advocate shall make a refund to the claimant out of the
    25  appropriation specified herein as directed by the court.
    26     (e)  Procedure exclusive.--The procedure in this section
    27  providing for the determination of the lawfulness of assessments
    28  and the recovery back of payments made pursuant to such
    29  assessments shall be exclusive of all other remedies and
    30  procedures.
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     1     (f)  Records.--It is the intent and purpose of this section
     2  that each public utility shall advance to the Office of Small
     3  Business Advocate its reasonable share of the cost of
     4  administering this act. The Office of Small Business Advocate
     5  shall keep records of the costs incurred in connection with the
     6  administration and enforcement of this act or any other act. The
     7  Office of Small Business Advocate and the commission shall also
     8  keep a record of the manner in which it shall have computed the
     9  amount assessed against every public utility. Such records shall
    10  be open to inspection by all interested parties. The
    11  determination of such costs and assessments by the Office of
    12  Small Business Advocate and the commission, and the records and
    13  data upon which the same are made, shall be considered prima
    14  facie correct. In any proceeding instituted to challenge the
    15  reasonableness or correctness of any assessment under this
    16  section, the party challenging the same shall have the burden of
    17  proof.
    18     (g)  Payment into General Fund.--All assessments received,
    19  collected or recovered under this act shall be paid by the
    20  commission into the General Fund of the State Treasury through
    21  the Department of Revenue.
    22     (h)  Use of assessments.--All such assessments, allocated to
    23  and paid by public utilities, shall be held in trust solely for
    24  the purpose of defraying the cost of the administration and
    25  performance of the duties of the Office of Small Business
    26  Advocate relating to proceedings before the commission, the
    27  corresponding regulatory agencies of the United States, related
    28  judicial proceedings and other such matters within the
    29  jurisdiction of the Office of Small Business Advocate, and shall
    30  be earmarked for the use of, and annually appropriated to, the
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     1  Office of Small Business Advocate for disbursement solely for
     2  that purpose.
     3     (i)  Requisitions.--All requisitions upon such appropriation
     4  shall be signed by the Small Business Advocate or such deputies
     5  as he may designate in writing to the State Treasurer and shall
     6  be presented to the State Treasurer and dealt with by him and
     7  the Treasury Department in the manner prescribed by the act of
     8  April 9, 1929 (P.L.343, No.176), known as The Fiscal Code.
     9  Section 7.  Duties of the commission.
    10     In dealing with any proposed action which may substantially
    11  affect the interest of small business consumers, including, but
    12  not limited to, a proposed change of rates and the adoption of
    13  rules, regulations, guidelines, orders, standards or final
    14  policy decisions, the commission shall:
    15         (1)  Notify the Small Business Advocate when notice of
    16     the proposed action is given to the public or at a time fixed
    17     by agreement between the Small Business Advocate and the
    18     commission in a manner to assure the Small Business Advocate
    19     reasonable notice and adequate time to determine whether to
    20     intervene in such matter.
    21         (2)  Consistent with its other statutory
    22     responsibilities, take such action with due consideration to
    23     the interest of small business consumers.
    24  Section 8.  Savings provision; construction.
    25     (a)  No bar to other action.--Nothing contained in this act
    26  shall in any way limit the right of any small business consumer
    27  to bring a proceeding before either the commission or a court.
    28     (b)  No impairment to commission.--Nothing contained in this
    29  act shall be construed to impair the statutory authority or
    30  responsibility of the commission to regulate public utilities in
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     1  the public interest.
     2     (c)  No impairment to Office of Consumer Advocate.--Nothing
     3  contained in this act shall be construed to limit or impair the
     4  statutory authority or responsibility of the Office of Consumer
     5  Advocate or the Consumer Advocate to represent the interests of
     6  consumers before the commission or in any other authorized
     7  manner.
     8  Section 9.  Reports.
     9     The Small Business Advocate shall annually transmit to the
    10  Governor and to the General Assembly, and shall make available
    11  to the public, an annual report on the conduct of the Office of
    12  Small Business Advocate. The Small Business Advocate shall make
    13  recommendations as may from time to time be necessary or
    14  desirable to protect the interest of small business consumers.
    15  Section 10.  Sunset.
    16     The Office of Small Business Advocate shall continue together
    17  with its statutory functions and duties until December 31, 1993,
    18  when it shall terminate and go out of existence unless
    19  reestablished or continued by the General Assembly. Evaluation
    20  and review, termination, reestablishment and continuation of the
    21  agency shall be conducted pursuant to the provisions of the act
    22  of December 22, 1981 (P.L.508, No.142), known as the Sunset Act.
    23  Section 11.  Appropriation.
    24     For the period from the effective date of this act to June
    25  30, 1989, the sum of $250,000, or as much thereof as may be
    26  necessary, is hereby appropriated from the General Fund to the
    27  Office of Small Business Advocate to carry out the provisions of
    28  this act. All such moneys appropriated from the General Fund
    29  shall be repaid to the General Fund in the next fiscal year from
    30  the funds assessed for the operation of the Office of Small
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     1  Business Advocate under this act.
     2  Section 12.  Effective date.
     3     This act shall take effect immediately.


















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