Members of the New Mexico Public Regulatory Commission say a joint public relations campaign by the Public Service Company of New Mexico and energy giant Avangrid created confusion, but the state regulatory body does not have jurisdiction to stop them.
Last year, the PRC blocked a merger between PNM and Avangrid, though that decision has since been appealed to the state Supreme Court. The utilities are still hoping that the merger will occur and, in documents filed with the PRC, they said that the joint advertisements, sponsorships and public service announcements are “in keeping with their continued goal to ultimately secure approval of their proposed merger.”
Despite the fact that the merger application was rejected, PNM and Avangrid have engaged in joint advertising campaigns that PRC commissioners say led some customers to wonder if the merger had actually happened.
New Energy Economy, a frequent PNM critic and consumer advocacy group, asked the state regulators to step in and to file an injunction against the utilities.
Related: Group accuses PNM, AVANGRID of misleading the public
On Wednesday, the PRC found that NEE did not identify “any existing rule, regulation or order subject to the Commission’s jurisdiction” that PNM and Avangrid have violated.
NEE argued that PNM and Avangrid are trying to convince consumers that the merger has occurred regardless of what the court decides.
Some of this has been done through joint sponsorship of events or through advertisements.
But, the utilities pointed out, in some of those instances their logos appear alongside logos of other entities as well, including New Mexico Gas Company, Sandia National Laboratories and others.
Further, PNM and Avangrid say that co-sponsoring of events as well as joint advertisements and public service announcements are protected under the U.S. Constitution’s First Amendment. NEE contended that commercial speech has lesser protections under the Constitution and that “a knowing and reckless falsehood” would not be protected under the First Amendment.
NEE has also alleged that Avangrid logos have been seen on PNM service vehicles, however the PRC found that the advocacy group did not provide evidence to substantiate this claim.
The PRC found that the courts would be the proper jurisdiction to determine if PNM and Avangrid’s actions constitute violated laws intended to protect consumers from misleading branding or advertising.
Should NEE choose to pursue that route, the group will need to file a case in district court arguing that PNM and Avangrid have violated the state’s Unfair Practices Act.
Commissioner Joseph Maestas said the co-branding and joint advertising has had consequences, including confusing customers.
“I’ve received many, many emails, I’ve even received some postcards, wondering what’s going on,” he said.
He said that while the commission does not have jurisdiction over the matter, the campaign is “disingenuous and confusing the public.”
“I’m not sure what more we can do other than say it now: the merger is still denied,” Maestas said.
The current commission consisting of five elected commissioners will be replaced starting in January by a commission consisting of three appointed members. The future commission is expected to once again consider the merger, as many of the commissioners alluded to during their comments.
Commissioner Jeff Byrd, the only Republican on the commission, also had harsh words about the two utilities.
“This joint effort to make the appearance that they are already one company just doesn’t pass the smell test and it’s inappropriate,” he said.
Commissioner Theresa Becenti-Aguilar said that once the current commissioners leave at the end of this month, “we aren’t going away.”
“We will not be silent,” she said.
