NH PUC Practice Guide

This document has been prepared by Commission Staff as a brief, informal guide to participating in proceedings before the Commission. It is intended to assist those who are unfamiliar with the Commission’s procedures. It does not constitute legal advice and is not binding on the Commission. This guide does not cover every aspect of the Commission’s procedures, and in the event of any conflict between it and the statutes or rules to which the Commission is subject, the requirements of the statute and/or rule shall govern in every instance. The Commission’s procedural rules (N.H. Code Admin. Rules, Chapter Puc 200) should be consulted with respect to any proceeding before the Commission. These rules contain general provisions and sections regarding operations and requirements, adjudicative proceedings, complaints against public utilities, rule-making, alternative regulation, and declaratory rulings. In this guide, the designation “Puc” refers to the Commission’s rules and the designation “RSA” refers to the New Hampshire Revised Statutes Annotated.

RSA 365:10-a authorizes the Commission, at its discretion, to permit any person to appear before the Commission provided that such person agrees to adhere to the Commission’s rules of practice and procedure, as well as any orders of the Commission. Although most utilities are represented by attorneys in Commission proceedings, it is not necessary to be an attorney to participate in Commission proceedings either on one’s own behalf or on behalf of another party. Puc 203.16(a). Any person appearing before the Commission must adhere to the Commission’s rules of practice and procedure and any orders of the commission or agreements between the parties in the docket, including orders or agreements addressing confidentiality. Puc 203.16 (b).

The Commission also allows attorneys in good standing from other states or the District of Columbia to participate in proceedings on behalf of their clients. Puc 203.16(a)(2).

Most persons or entities participating in Commission proceedings do so as formal intervenors. Unless limited by the Commission, an intervenor becomes a full party to the case in question, with the right to submit testimony, participate in discovery, cross-examine witnesses at hearings, and make arguments to the Commission. To gain intervenor status, one must file a Petition to Intervene that demonstrates that one’s rights, duties, privileges, immunities, or other substantial interests may be affected by the case. RSA 541-A:32, Puc 203.17.

It is the Commission’s practice to maximize public participation in Commission proceedings. Therefore, the Commission generally welcomes statements at prehearing conferences and hearings from interested parties, whether or not they have intervened formally. Puc 203.18. However, the Commission does not permit non-intervenors to present sworn testimony at hearings or to cross-examine witnesses. Puc 203.23 and 203.24.

Often there will be persons who are interested in the Commission’s action with respect to a particular docket. Upon request to the Clerk’s Office, such persons will be placed on an ancillary service list designated to receive copies of the Commission’s orders and other written communications in that docket. Persons on this list do not receive copies of pleadings filed with the Commission by parties to the docket. To be placed on such a service list, contact the Clerk’s Office in writing with your request, including the docket number.

Most cases before the Commission that involve discovery and hearings begin with a utility or other person or entity filing a petition with the Commission requesting that the Commission take a particular action or make a ruling. The Commission may also open a case on its own motion when it believes an inquiry or investigation is necessary. RSA 365:5. In either instance, the Commission will issue a Notice of Adjudicative Proceeding to begin formal proceedings in the case. That Notice is designed to inform the public about the case and the issues it raises. Puc 203.12(a). The Notice typically will appear in at least one newspaper of general circulation within the geographical area affected by the case and is required to be posted on the relevant utilities’ websites. Puc 203.12(b).

In the Notice of Adjudicative Proceeding, the Commission explains whether the case will involve a formal hearing or will be conducted in a less formal manner, such as by receiving written comments from interested persons. If the case is to be decided after a formal hearing, the Notice will specify a deadline for intervention petitions and establish a date for a pre-hearing conference to be held before the Commission.

A pre-hearing conference is a formal proceeding conducted before the Commissioners or one of the Commission’s advisory staff at the outset of a case. Typically, the pre-hearing conference begins with a summary of the case and consideration of any intervention petitions that have been filed. The Commission then gives each party, including intervenors, an opportunity to state its preliminary position on the issues raised by the case. Puc 203.15. The Commission also hears the parties’ positions with respect to the schedule for the remainder of the case. After the pre-hearing conference and input from the parties (see also “Technical Sessions,” below), the Commission will issue an Order specifying the procedural schedule that will apply for the remainder of the case.

The parties to a Commission proceeding typically participate in an initial technical session immediately following the pre-hearing conference, at which the parties are expected to formulate a proposed procedural schedule for the remainder of the proceeding and deal with other matters as requested by the Commission in the notice of adjudicative proceeding or at the pre-hearing conference. The discovery process may commence during an initial technical session following the prehearing conference. The procedural schedule in many dockets will include additional technical sessions to give the parties a full and fair opportunity to exchange information in preparation for a hearing on the merits of the case before the Commission. Puc 203.09(j). Technical sessions are generally open to the public. However, it may become necessary to close some or all of a technical session to the public, permitting only parties to participate, when there is a need to discuss confidential information or the possibility of settlement. (See “Settlements and Settlement Conferences,” below.)

A number of basic requirements apply to communications filed with the Commission. All of them must (1) be dated, (2) identify the name and address of the person filing the document and the party on whose behalf it is submitted, if any, and (3) identify the docket number, order number, or other pertinent subject matter. Puc 202.06.

Commission filings should be addressed to:

Clerk’s Office
New Hampshire Public Utilities Commission
21 South Fruit Street, Suite 10
Concord, New Hampshire 03301-2429

Such filings should not be directed to the Commissioners or to Commission Staff members.

For filings to be effective in an adjudicative proceeding, a party must: (1) file an electronic copy with the Commission, and (2) serve an electronic copy, in a file format compatible with the Commission’s computer system, on each person listed on the Commission’s service list for the docket (or a written copy on each person identified on the service list as unable to receive e-mail) and the Office of the Consumer Advocate. A party may also submit an additional copy and request that it be date stamped and returned to verify the filing. The service requirements are described in more detail below. See also Puc 203.02 and 203.03.

Additional filing requirements apply to petitions, pleadings, motions and briefs. For example, they must be typed or printed on 8-1/2 by 11-inch paper, have margins of at least one inch on all sides, be numbered sequentially, including attachments, be double-spaced, and submitted in unbound form if provided in hard copy, contain on the initial page: the heading “Before the New Hampshire Public Utilities Commission”, and the title and the docket number of the proceeding, to the extent known. Such filings must also identify the name of the petitioner, applicant, or other party who is the subject of the proceeding, and the nature of the document. Puc 203.04; see also Puc 203.05 through 203.08 regarding requirements regarding pleadings, petitions, and motions.

Frequently, deadlines and/or specific time periods will apply to the filing of petitions, the submission of written testimony, the conduct of discovery, the filing of pleadings, or the taking of other actions in connection with Commission proceedings. Parties and members of the public are expected to observe all deadlines as, in many instances, it will not be possible for the Commission to excuse a missed deadline.

When the Commission’s rules specify a period of time for submitting a pleading or taking some other action, the day that commences the time period is not counted in the computation. Puc 202.03(a). The last day of the time period is included in the computation, unless that date occurs on a day when the Commission offices are closed. In such an instance, the time period runs until the end of the next business day. Puc 202.03(b).

When a period of time for submitting a pleading or taking some other action is less than 6 days, intervening Saturdays, Sundays and/or legal holidays are excluded from the calculation of the time period. Puc 202.03(c). Otherwise, Saturdays, Sundays and legal holidays are included in the calculation of an applicable time period.

Documents filed with the Commission are deemed to be filed on the day the Commission receives a complete executed filing. This applies as well to certain electronic filings required of utilities pursuant to Puc 202.05. On business days, the Commission’s offices are open from 8:00 a.m. to 4:30 p.m. To comply with a filing deadline, the document should reach the Commission’s offices by 4:30 p.m. on the date specified as the deadline. 

A petition is one type of formal request for Commission action on a matter that is not already the subject of an open case before the Commission. Other types of requests initiating a proceeding are listed in Puc 202.01(b)-(m).

All petitions and motions filed with the Commission must contain a cover page identifying the name of the utility and the subject matter; a clear and concise statement of the authorization or relief sought; the statutory authority or legal precedent for the authorization or other relief; and a concise and explicit statement of the supporting facts and other relevant data. Petitions must also contain the name of the petitioner(s), their address or principal place of business, and e-mail address. Puc 203.05. Except for petitions seeking a rate adjustment, petitions are not required to be accompanied by pre-filed written testimony. When submitted, written testimony must set forth the facts relied on, other relevant facts, and policy arguments in support of the result sought. Puc 203.06.

A motion is a formal request to the Commission that it provide some ruling or relief in a proceeding already pending before the Commission. Except for a motion for rehearing pursuant to RSA 541:3, which may be filed by any person directly affected by a Commission action, only the parties to the case – i.e., the petitioner(s) and any intervenors—may make a motion. Motions must be in writing in the form of a pleading containing the word “motion” and complying with the requirements for petitions described above. (Oral motions may be made at a pre-hearing conference or hearing.) Motions must clearly and concisely state the facts and law supporting the motion and the specific ruling or relief requested. Puc 203.07 (a)-(d). All written motions are also subject to the filing and service requirements described elsewhere in this guide.

Objections to a motion must be in writing and filed within 10 days of the filing of the motion (5 days in the case of a motion for rehearing). Puc 203.07 (e) and (f).

The Commission’s Clerk’s Office maintains a service list for each docketed case. This list will include the parties to the case, their mailing addresses, and their email addresses. If you file a formal document with the Clerk’s Office for the Commission’s consideration (see Filing Requirements, above), you must send a copy of the document to each person on the service list at the same time you file the document with the Commission.

Except for motions for rehearing (which are governed by RSA 541:3), service of documents on the parties to a Commission proceeding must be made electronically to the email addresses listed on the service list or by personal delivery, by first class mail or by other expedited delivery service. Puc 203.11(a). The party serving documents must include in its filing with the Commission a statement that the document was served on all parties identified on the Commission’s service list.

“Discovery” is the process by which parties to Commission proceedings obtain information from each other to assist them in preparing for hearing. In Commission proceedings, discovery typically assumes two forms. “Data requests” are written questions or requests for documents made by one party to another. Puc 203.09(b). “Technical sessions,” another means for parties to conduct discovery, are informal meetings of the parties for the purpose of exchanging information about matters related to the case in question. Puc 203.09(j). The schedule that the Commission approves at the beginning of a case will usually include dates for technical sessions, deadlines for the submission of data requests, and deadlines for responding to data requests. When responding to a data request, a party must submit the response or responses to all parties to the case. Responses to data requests are not considered formal pleadings and should not be filed with the Clerk’s Office. All discovery responses must be filed in compliance with Puc 203.09.

In some instances, a party may object to answering a data request. If so, that party must object in writing to the party submitting the data request. Such objection must be made within 10 days of receiving the request and must state the reason for the objection. The objection must be sent to the party that made the request, not to the Commission. Puc 203.09(g).

Parties to Commission proceedings often find it necessary to submit or disclose confidential information, either in connection with a hearing or in the process of discovery. All documents in the possession of the Commission or its Staff are governed by RSA 91-A, the New Hampshire’s Right-to-Know Law. Generally, the Right-to-Know law provides that such documents are public – meaning that they may be inspected and/or copied by any member of the public who so requests. However, the Right-to-Know law contains a provision, RSA 91-A:5, that allows the Commission to treat certain documents as confidential – i.e., NOT available for public inspection and/or copying.

Any person submitting a document to the Commission that the person believes should be treated as confidential must submit a Motion for Confidentiality. Rule Puc 203.08 contains a detailed set of requirements for the contents of a Motion for Confidentiality, designed to permit the Commission to weigh the potential harms and benefits of confidential treatment as required by the Right-to-Know Law. The document will be treated as confidential until such time as the Commission rules on the Motion.

It is the Commission’s policy to encourage parties to settle any and all contested issues arising in proceedings before the Commission. As a result, the schedule in most cases will include at least one Settlement Conference. A Settlement Conference is an informal, non-public meeting of the parties to a particular case. Settlement Conferences are not open to the public; only the parties may attend.

Any settlement, if reached, may include some or all issues in a case, and may involve some or all of the parties to the case. Settlements should be filed at least 5 days before the scheduled hearing. Puc 203.20.

A hearing, when scheduled, is an opportunity for each party to a case to submit evidence and argument in support of that party’s desired outcome. A hearing is similar to a trial before a judge, except that the Rules of Evidence generally do not apply in Commission proceedings.

A court reporter is present at all hearings and a verbatim transcript of the proceedings is prepared. A party desiring a hard copy of the transcript may purchase one from the court reporter pursuant to the court reporter’s contractual agreement with the Commission, or download the transcript on the Commission’s website in the virtual file room for the relevant docket.

It is the Commission’s practice to focus at hearing on the cross-examination of witnesses based on the witnesses’ pre-filed testimony. The Commission generally finds it helpful if each witness provides a brief oral summary of his or her pre-filed testimony at the hearing. Each witness is also given an opportunity to make any corrections or updates to his or her pre-filed submission.

Unless the Commission orders otherwise, the petitioner is the first party to present its witnesses at hearing, followed by the other parties. The petitioner also receives a final opportunity to present any rebuttal testimony.

The Commission has the authority to limit the number of witnesses or the time allotted to any witness or party at hearing. A party requesting the postponement of a hearing must do so by filing a written request with the Clerk’s Office at least 7 days in advance of the scheduled hearing. See Puc 203.13.

When a party seeks to introduce at hearing an exhibit that has not been previously submitted to the Commission, the party must provide every other party present with a copy of the exhibit. See Puc 203.22. In such case, the party must also provide a copy of the exhibit to the the court reporter and each member of the Commission. All testimony and exhibits pre-filed with the Commission must be sequentially paginated in advance to facilitate review by all parties. The pre-filed testimony of each witness is generally treated as an exhibit. Each exhibit, including pre-filed testimony, should be clearly and consecutively paginated from the beginning of the exhibit through the end of any attachments to the exhibit. Whenever possible, to minimize delays at hearing, each party should pre-mark the exhibits the party intends to introduce at hearings.

An exhibit, when offered at hearing for inclusion in the record, is marked by the hearing clerk for identification purposes only. At the conclusion of each hearing, the Commission typically entertains a request to “strike the identifications.” This is shorthand for admitting the exhibits as evidence that may be considered by the Commission, as opposed to designating the exhibits purely for purposes of identifying them. Because the Rules of Evidence do not apply in hearings before the Commission, pursuant to RSA 541-A:33, II, only in rare cases does the Commission not admit all exhibits as evidence. The Commission will not consider any exhibit that has not been admitted as evidence.

In appropriate cases, the Commission will authorize the parties to submit written briefs, summarizing their positions, following a hearing. Parties are free to request the opportunity to submit briefs when they believe such filings would be helpful to the Commission.

The Commission will sometimes take official notice (also called “administrative notice”) of facts that are not contained in the testimony of any witness or in the exhibits introduced by any party. See Puc 203.27 and RSA 541-A:33. This usually occurs when the facts in question were fully developed in another case or when the Commission believes such facts to be generally known and accepted. When it takes such action, the Commission must give all parties adequate notice that it is doing so. It must then provide each party an opportunity to challenge and rebut the matters to be officially noticed.

Following the hearing, and after any briefing or additional filings required by the Commission, the Commission will make its decision. Following deliberations, the Commission will issue a formal, written order setting forth the positions of the parties, any factual findings, the Commission’s legal analysis and its ultimate decision in the case. See RSA 541-A:35.

Pursuant to RSA 541:3, within 30 days of the Commission’s decision, any person directly affected by the decision may file a motion for rehearing (see “Motions,” above). The 30-day period runs from the date of the written order. The Commission will grant rehearing and issue a new order when the party seeking rehearing has shown good cause for rehearing. In some cases, the Commission may schedule oral argument or permit the submission of additional evidence prior to ruling on a rehearing motion.

Once the Commission has ruled on a motion for rehearing, if the movant remains dissatisfied with the Commission’s decision the movant may petition the New Hampshire Supreme Court to hear an appeal of the Commission’s decision. Note that a rehearing motion is a pre-requisite to such an appeal, pursuant RSA 541:3-6. Petitions to appeal a Commission decision must be submitted to the Court within 30 days of the Commission’s written order on the motion for rehearing. Petitions for appeal of Commission decisions are governed by the rules and procedures of the New Hampshire Supreme Court and, accordingly, are not covered here. Questions about the appeal process should be directed to the Court.

The three members of the Public Utilities Commission must conduct themselves as a judge would in connection with all open cases. Thus, the individual Commissioners may not communicate in connection with any case pending before the Commission with a party to that case or any of such party’s representatives unless all other parties have been notified in advance and have been given an opportunity to be present. In other words, the Commissioners will communicate in connection with any case pending before the Commission with parties only during duly noticed hearings, pre-hearing conferences, or other formal proceedings of which all parties have been notified. Any other communication in connection with any case pending before the Commission between any Commissioner and a representative of a party is known as ex parte communication and is strictly prohibited. Parties and their representatives should never attempt to contact the Commissioners directly, whether by telephone, by e-mail, or in writing.

These restrictions on ex parte communications apply to all Commission employees, as well. Parties or their representatives should not contact Commission Staff members directly in connection with any case pending before the Commission. However, parties may contact the Commission’s Clerk’s Office for questions related to Commission practice and procedure. Attorneys appearing before the Commission should be aware that the Commission and its Staff are represented by counsel for purposes of Rule 4.2 (“Communications with Person Represented by Counsel”) of the New Hampshire Rules of Professional Conduct.

The Office of the Consumer Advocate is an independent agency authorized by RSA 363:28 to represent the interests of residential utility customers in proceedings before the Commission and other decision-making bodies. The Office of the Consumer Advocate is attached to the Department of Energy for administrative purposes, but operates independently of both the Department of Energy and the Commission. The Commission treats the Office of the Consumer Advocate as a full party to any Commission proceeding when notified by the Office of the Consumer Advocate that it intends to participate. Questions about the Office of the Consumer Advocate or its position in any case, should be directed to that office. The Consumer Advocate office staff can be reached at (603) 271-1172 or at 21 South Fruit Street, Suite 18, Concord, New Hampshire 03301-2429.