"The horse is out of the barn," said Berry.  "My original bill said 'let's get the customers their money back, then close the barn door.'  Now, I just hope we have the wisdom to close the barn door."

Debated Tuesday in the Legislature's Utilities and Energy Committee, Berry's bill is entitled LD 2104, "An Act to Provide for Fairness and Accuracy in Utility Rate Setting."  In one section, the three-part bill would have required an over earnings finding by the Public Utilities Commission (PUC), which would result in a full refund of the excessive rates.

In earlier testimony, this section brought strong objections from lobbyists and lawyers for Verizon and Fairpoint, who argued that case law generally prevents past over earnings from being recovered by consumers.  These concerns led the majority of committee members to decide they could not support the language in that section of the bill.

Without a PUC finding, it is hard to pin down the amount of over earnings to which Berry's bill refers.  Pointing to a recent finding by the PUC's Staff Examiner, as well as evidence presented by AARP and the Public Advocate, Berry estimates Verizon's total over earnings at between $100 and $300 million, and overcharges to telephone users at $40-80 per year, per line.  The over earnings appear to have begun in 2000, and have since been the subject of extensive litigation between the Public Advocate and Maine´s PUC.

On Tuesday, Berry acknowledged in committee that his effort to measure and recover these overcharges to Maine residents and businesses appeared doomed.  At the same time, he asked that the committee learn from this experience and take steps to "close the barn door" in the future.  These steps are the idea behind the other two parts of Berry's bill.

The first section of the bill would clarify the PUC's authority to order rate refunds in instances of utility misconduct.   Berry is working with stakeholders to improve this section based on feedback from the hearing, focusing it on a minor inconsistency between statute and case law.

The second part of the bill directly addresses the situation that led to the excessive Verizon rates starting in 2000.  Specifically and explicitly, it would avoid future overcharges by requiring the PUC to recalibrate rates at least once every five years.  This proposal is supported by the PUC and Maine's Public Advocate, who feel it provides needed clarification to set fair and accurate utility rates.

LD 2104 was first heard by the committee last week.  On Tuesday, the bill as a whole was reviewed and then tabled on a party-line vote.  The committee expects to review Berry's revised language and take it up for a final vote sometime next week.