The Public Utilities Commission (PUC), has issued orders barring the Guyana Power and Light Inc (GPL), from claiming retroactively against customers, unless it can prove that electricity was consumed without being properly metered.

GPL has also been barred from unilaterally enforcing payment unless it serves notice of intent. Further the regulatory body has ordered the power company to pay costs of $100,000 to the commission as a penalty.

The PUC order came after a deliberative period where complaints were filed on November 24, 2000, February 9, 2001 and March 9, 2001 by Texaco West Indies Ltd, the Guyana National Co-operative Bank (GNCB) and the Guyana Bank for Trade and Industry (GBTI) respectively. In each of the complaints the firms claimed that GPL was either levying charges upon them for retroactive recovery of losses for electricity supply, seeking to recover charges on claims of under-billing and retroactively increasing electricity charges.

GPL, in its defence, said that the accounts of the above-mentioned firms had been under-billed by factors of 10, 54 and 240 as the correct multiplier had not been applied in the respective computer calculations. The company claimed as a result of this that amounts of $2,947,587 in respect of Texaco, $31,630,988.70 from GNCB and $13,204,749 from GBTI were outstanding and had to be recovered.

The PUC subsequently scheduled public hearings at which representatives of the aggrieved parties made submissions on their behalf.

Among the issues the PUC had to determine were whether the multiplier factor in each case was correct, whether the under-billings were due to the application of the wrong multiplier factor and whether GPL was entitled to retroactive recovery of alleged losses for two years or for any period.

GPL, in its submissions to the commission, stated that the initial bills had been sent out in accordance with Standard Terms and Conditions pursuant to paragraph 6:3. According to that paragraph: "In the event of unauthorised interference, whether by the customer or otherwise, whereby electricity could have been consumed without being properly metered, the company shall have the right to estimate the unrecorded consumption for a retrospective period not to exceed 24 months and to indicate the resultant charges in the customer's account."

Conceding later that there was no unauthorised interference in any of the cases, GPL proposed that the bills be retroactive for six months in accordance with the provision of the Electricity Sector Reform Act 1999 (ESRA). It honed in on paragraph 7:2 of the third schedule of ESRA which states: "Nothing in this act shall be construed as preventing a public supplier for billing a customer retroactively for electricity consumption for a maximum period of six months prior to the issuance of such a bill, upon the presentation of reasonable evidence that the consumer was not previously billed for such consumption, and the rates reflected in such a bill should be those in effect at the time the consumption of electricity occurred."

Answering these charges, Senior Counsel Edward Luckhoo, on behalf of Texaco, claimed among other things that the section did not apply to the present circumstances as what it effectively did was limit GPL's powers to retroactively bill a customer for six months, while establishing a limitation period.

Further, according to Luckhoo, legislation, generally speaking, is not designed to have retroactive effect and this only occurred in exceptional circumstances where it is strictly construed.

Luckhoo also submitted that on clear interpretation of the section, once a customer was billed GPL could not contend that it was not previously billed in which case the question of retroactivity did not arise.

The section, he stated made no reference to any additional amount being levied during the six-month period as the section referred to customers not being previously billed for consumption. The section, he added, was not intended to relate to a situation where the intrinsic negligence and callousness of GPL's systems resulted in a bill not being sent in due time.

In deliberating on the matter, the PUC considered various statutory provisions to determine whether GPL could bill a customer retroactively for six months.

It looked at section 16(1) and (2) of the third schedule of ESRA and subparagraphs (2) and (3) and paragraph 17 which cover sums billed to and payments by customers for actual electricity supplied to be determined by reading the customer's meter. It subsequently found that the act contemplated that retroactive billing could be permitted for two reasons -- unauthorised interference whether by the consumer or otherwise, whereby electricity could have been consumed without being properly metered, and where the power company is unable to read the meter or is satisfied that it has not accurately registered the amount of electricity consumed.

In finding for the complainants, the PUC said there was evidence that GNCB was not indebted to GPL as the correct multiplier was used, the issue with GBTI was by consent resolved between the parties and with Texaco, the power company not entitled to recovery of the amount for any retroactive period.

The order dated March 20, was signed by regulatory body's Chairman Prem Persaud, and members John Willems, Hugh George and Badrie Persaud.