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February 12, 2018

Honorable Philip Gunn, Speaker of the House


Honorable Greg Snowden, Speaker Pro Tempore
Mississippi House of Representatives
Post Office Box 1018
Jackson, MS 39215

Gentlemen:
It has come to our attention that Attorney General Jim Hood’s February 7, 2018, letter to
you concerning Senate Bill 2295 specifically mentions Entergy Mississippi and the lawsuit filed
against our company and its more than 2,200 Mississippi employees. Entergy Mississippi openly
supports Senate Bill 2295 and believes that much of the information provided in the letter by the
Attorney General is both incorrect and misleading.
The issue that this senate bill will resolve is simple: we join those who believe the law
provides that the Attorney General should go before the Mississippi Public Service Commission
(MPSC) first before filing a suit against an electric utility the MPSC regulates, and the Attorney
General believes he can bypass the MPSC altogether. We believe SB 2295 settles this issue by
clarifying the MPSC’s statutory authority.
This lawsuit highlights the need for providing clarity regarding the critical role of the MPSC
in regulating utilities. The power purchases made by Entergy Mississippi that form the basis of
the lawsuit, already have been found by the MPSC to have been fair to customers based on
extensive annual audits of our company – this includes 18 clean audits since the lawsuit was filed.
Yet, the Attorney General is suing our company over the same power purchases that have been
deemed fair and correct by the Commission created by the Legislature to regulate us. And on top
of the fundamental unfairness of having to defend what the MPSC has already approved, is the
cost to customers. Entergy customers already pay for auditing our company and now the Attorney
General has exposed them to potentially paying millions in legal costs on the same issue.
The language in SB 2295 does not take away the Attorney General’s ability to sue an
electric utility, it merely clarifies an important first step before he can initiate such a lawsuit. Our
question is this: why is the Attorney General so opposed to going before the MPSC for a finding
of fact? If the Attorney General’s case is as strong as he has claimed publicly, this should be no
obstacle. Entergy Mississippi is confident in the integrity of our employees and the fairness of our
operations and we welcome such a hearing.
Our company has great respect for the Office of the Attorney General and believes it
provides important services to the people of Mississippi, including on occasion, lawsuits brought
on their behalf. However, in this case, the Attorney General has been misled by out-of-state
attorneys and in the process is denying fairness and due process to our Mississippi customers
and employees.
Sincerely,

Haley Fisackerly
President and CEO
Entergy Mississippi

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SPECIFIC RESPONSES TO GENERAL HOOD’S MISUNDERSTANDINGS

Contrary to General Hood’s assertion, the amendments to Miss. Code Ann. §§ 77-1-43
and 77-3-5 (contained in sections 19 and 24 of Senate Bill 2295) remove no existing legal
protections for utility customers and the State of Mississippi. First, the amendment to § 77-3-5
merely clarifies the scope of the Public Service Commission’s existing “exclusive original
jurisdiction”, eliminating the need for and expense of litigation over what is or is not included in
seemingly unambiguous terms such as “rate” and “rate structure.” See, e.g., Mississippi Rural
Water Association, Inc. v. Mississippi Public Service Commission, 222 So.3d 288 (Miss. 2017),
in which the Mississippi Supreme Court reaffirmed that the term “rate” as used in the Mississippi
Public Utilities Act is to be interpreted very broadly so as to encompass a wide and expansive
array of utility practices, activities, and billing procedures. All of those matters, the Court confirms,
are under the Commission’s original jurisdiction. Litigation of the nature the Attorney General is
presently pursuing is needless and expensive for both utilities and customers alike and is contrary
and damaging to the public interest.
Second, the amendment to § 77-1-43 simply carries forward, procedurally, that “exclusive
original jurisdiction” is vested in the Public Service Commission. That amendment does not
prevent the Attorney General from litigating matters involving public utilities. Consistent with the
Commission’s primary jurisdiction, the amendment does vest in the Commission the paramount
right to consider the matter first, as was the Legislature’s intent and directive in enacting the Public
Utilities Act in 1956. Then, if the Commission determines that the matter is one that should be
referred to the Attorney General for the courts to enforce Commission actions, the amendment
provides that the Commission may make that referral. That primary Commission jurisdiction over
the intrastate business of public utilities is entirely consistent not just with existing statutes but
also with decisions from the Supreme Court of Mississippi and from official opinions from the
Attorney General himself. See Singing River Mall Co. v. Mark Fields, Inc., 559 So. 2d 938, 942
(Miss. 1992) (“(O)nly the Mississippi Public Service Commission may initially decide a matter
relating to the regulation of intrastate public utility activity.”); Arnold Line Water Ass’n, Inc. v.
Mississippi Public Service Com’n, 744 So. 2d 246, 252 (Miss. 1999) (Commission had jurisdiction
to resolve contractual matter involving business of utility); see also Calculation and Collection of
Fees from an Electric Cooperative under Miss. Code Ann. Section 77-3-17, Op. Att’y Gen. No.
2012-00465, 2012 WL 6561332 (Nov. 9, 2012).
Third, as the Attorney General said himself, the “process (of rate-making) can be
complicated and controversial.” Precisely because of the complex issues raised and litigated in
those matters, the Public Service Commission is ideally suited to investigate (with the assistance
of the Public Utilities Staff), understand and resolve those matters fairly and efficiently. If after
such investigation the Commission determines it does not possess adequate remedies, it can,
supported by its evidenced-based findings, authorize the Attorney General to file suit to enforce
Commission actions. As an illustration of the vastly superior efficiencies of the Commission to
handle utility rate matters, during the time period in which the Attorney General’s suit against
Entergy Mississippi has been pending (to recover damages for customers’ bills based on rates
approved by the Commission), the Public Service Commission has ordered more than 90 rate
revisions, both increases AND decreases, for Entergy Mississippi. With exclusive original
jurisdiction over those retail rates, the Commission, not the Attorney General, has the first say on
the validity of challenges to utility rates. General Hood’s lawsuit is proof enough of why the
clarifications provided by S.B. 2295 are appropriate and why the Commission is best suited to
regulate utility rates and operations and the provision of utility service.
Fourth, contrary to the picture painted by the Attorney General of a toothless Public
Service Commission as a result of the amendments, nothing in the amendments removes the
statutory power of the Commission to order rebates or adjust rates when justified. And certainly

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the Commission always retains the right to revoke a utility’s certificate if its conduct is egregious.
See Miss. Code Ann. § 77-3-21, which authorizes the Commission to revoke utility certificates.
Fifth, the specter of the amendments as unconstitutional violations of the separation of
powers clause, or as ex post facto laws, is baseless. As “an arm of the Legislature,” the Public
Service Commission has plenary regulatory powers over utilities. See Southeast Miss. Legal
Services Corp. v. Miss. Power Co., 605 So. 2d 796, 798 (Miss. 1992). The Commission’s
jurisdiction over public utilities preempts any purported jurisdiction by the courts, except as
expressly delegated. The amendments simply clarify and protect those plenary powers of the
Commission. And the amendment to § 77-1-43 vests in the Commission the authority to delegate
to the Attorney General the right to file suit. The amendments make no change in Miss. Code
Ann. § 77-3-75, which vests in the Commission the ability to enforce its orders through the Courts.
Sixth, in his letter the Attorney General suggests that the proposed amendments will
eviscerate existing statutory protection against fraud. But the principle tool there is the right to
seek an injunction. That is the power to stop perceived misconduct immediately. Injunctive
remedies are not dependent for their existence on statutes; they are remedies available in any
court of equity, with or without specific statutory authority, and nowhere in the proposed
amendments is the right to an injunction removed. Beyond that, it is noteworthy that during the
approximately ten years the Attorney General has been litigating with Entergy Mississippi, Inc.,
he has never obtained, or even moved for, a preliminary injunction.
The current Public Service Commission Authorization Act sunsets in 2018. One purpose
of a sunset provision is to allow the Legislature to review and clarify existing legislation as needed.
Contrary to the Attorney General’s assertion, clarifying existing law in a “repealer” year is not
unusual. The proposed amendments are not just sound public policy; they are consistent with
longstanding Mississippi law providing that when the Legislature has delegated to a state agency
the authority to regulate a specific activity (here, utility rates), the proper forum for initiating a
challenge to the activity is the agency itself--not an end run to the courts. These amendments do
not prevent the Attorney General from contesting a utility’s conduct if he has a concern. They just
clarify that the proper venue to initiate that contest is the Public Service Commission. And it should
be noted that the Mississippi Public Service Commission has done an effective job of regulating
Entergy Mississippi. Entergy Mississippi’s rates are among the lowest in the state and US.

Cc: Mississippi House of Representatives

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