PSC hearings take new path in pandemic

Move to written testimony instead of live progressing

The Arkansas Public Service Commission appears to be making a successful transition from live in-person public hearings to written testimony as regulators adjust to the covid-19 pandemic.

The new process was put in place to comply with city and state health and safety protocols related to the coronavirus, and the commission has held several hearings in the new format.

Valerie Boyce, chief administrative law judge who has been at the commission 25 years, said the new format has been a seamless adjustment.

“There may be a few more hoops to jump through,” she said, ”but so far we’re getting the evidence we seem to need, and we’re finding a way to work around this.”

Commission Chairman Ted Thomas is confident the process is working.

“All the parties are aware there’s a public health crisis and have been very cooperative,” Thomas said. “This is part of the covid world — we can’t pack a hearing room like we have in the past.”

In-person commission hearings are conducted similar to a court proceeding: there is direct examination, cross-examination and opportunities for commissioners to jump in with questions much like a judge would from the bench.

Rarely does a commission hearing turn into an adversarial process that creates controversy.

As such, moving from an in-person hearing to an alternative process that relies, so far, exclusively on written testimony and responses has been fairly smooth.

David Palmer, Entergy Arkansas’ director of regulatory affairs who has testified in a dozen live hearings, said the utility was pleased with the process when it participated in one of the alternate hearings in May.

“It was a little awkward at first trying to figure this out but, looking back, it’s really been effective and everybody has cooperated to make this work out,” Palmer said.

Live hearings, however, are more spontaneous and give the general public an opportunity to speak out on regulatory proceedings.

Thomas likes the public participation and has some concern that a little may be lost with the change, though he points out there is still ample opportunity for Arkansans to make their views known.

“There is value to the in-person gathering,” the chairman said. “The preference in my view will always be to have public participation like we did pre-covid, but we have to adjust to the environment.”

Thomas and the commission staff point to the agency’s website, which they say is user-friendly and makes it simple and easy for the public to file comments or

attach letters.

“There is an opportunity for anyone to get on our website and file a public comment on any docket,” Boyce said.

“The public comment process is still pretty robust.”

Boyce participated with peers nationwide on a subcommittee of the National Association of Regulatory Commissioners to talk about alternative proceedings to compensate for the loss of live testimony.

“When the pandemic hit, we started having regular calls to compare notes and see what was happening in other jurisdictions so we could all learn from best practices,” Boyce said.

That input helped the commission establish its current process.

Another challenge presented by the loss of in-person hearings is the absence of cross-examination of witnesses.

To ensure due process, Thomas said parties participating in the new format must waive that right.

“The only thing that could raise a concern for me as a lawyer is the lack of crossexamination,” said Lori Burrows, vice president and general counsel for Arkansas Electric Cooperative Corp. “There could be something lost there, particularly when you have different viewpoints on an issue.”

Yet the commission is granting the parties, when they find the need for crossexamination, the opportunity to file additional testimony. In addition, direct questions from the commissioners also are submitted in writing with a limited and concise response required.

At Entergy, Palmer said he found it a little more comfortable and effective to file written testimony in lieu of live cross-examination and to respond to commissioners’ questions in writing, as well.

“It actually allowed us to give a more thorough answer because you’re not on the spot responding and trying to recall exact details of what you filed in written testimony,” Palmer said. “That helps everybody.”

The spontaneity of live questioning has been adequately replaced with the opportunity to review filed testimony and provide accurate responses to questions, according to Palmer.

“This process has been just as efficient, if not more, for that reason,” Palmer added.

“The commission is probably getting more thorough responses than they were getting before.”

Should anyone insist on in-person cross-examination, or find the need for a live hearing, the commission is prepared to hold an interactive meeting, according to Boyce.

“We have tested the technology, and we have the capability to do a remote hearing,” she said.

Burrows said the commission’s continued commitment to upholding a public process for input is vital.

“The commission and all the parties are working together to make sure the important work they do continues in the pandemic,” she said.

“Everybody is doing the best they can right now in these unprecedented times.”