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The Indiana Utility Regulatory Commission has initiated an investigation to determine whether distributed energy resource (“DER”) aggregators are “public utilities” under Indiana law.[1]

FERC Order 2222 gave DERs the right to participate in wholesale energy markets through aggregators and required regional transmission organizations such as MISO and PJM to file tariff changes to facilitate participation by DER aggregators.

Over the past 18 months, the Commission has conducted stakeholder workshops relating to the implementation of in Indiana.[2]  The workshops have discussed interconnection of DERs to local distribution facilities, technical and operational concerns, cost allocation issues, and the extent to which DERs and Aggregators of DERs should be regulated or monitored.  After numerous workshops the Commission initiated the investigation to review the public utility status of DER aggregators in order to “facilitate rule development”.

Attorneys practicing in Indiana are well aware that Indiana courts and administrative agencies are moving to “mandatory” electronic filing.  The Indiana Supreme Court’s e-filing project is rolling along, with e-filing now mandatory (except upon a petition showing good cause) for the Supreme Court and Appellate Courts and over twenty counties.  More county courts are going “E” every month.  By 2018, e-filing will be mandatory in all circuit courts in Indiana.  The specific schedule is available at  In addition, some administrative agencies such as the Indiana Utility Regulatory Commission (“IURC”) are also moving to mandatory e-filing.  See IURC RM-15-02.

As an attorney practicing in a major metropolitan area with ample access to high-speed internet, I welcome this transition.  Many (probably most) attorneys have been exchanging documents and information electronically for many years.  The world is going digital, and the ability to e-file court and agency documents is, to be frank, rather 2001.  But would I welcome mandatory e-filing with such open arms if I practiced in a small town or rural area in Indiana, as many of our distinguished colleagues do?

Rural broadband access is a hot topic these days.  At the national level, the Federal Communications Commission (“FCC”) has made broadband access a priority.   The FCC’s 2016 Broadband Progress Report notes “there continues to be a significant disparity of access to advanced telecommunications capability across America with more than 39 percent of Americans living in rural areas lacking access to advanced telecommunications capability, as compared to 4 percent of Americans living in urban areas….”   2016 Broadband Progress Report at 3, GN Docket No. 15-191, Jan. 29, 2016.  I represent a number of rural electric cooperatives who serve much of the rural territory in Indiana.  The cooperatives and their members are acutely aware that significant portions of rural Indiana lack access to high-speed internet.  For attorneys that live or practice in these areas, “mandatory” e-filing could present a challenge.

Avon attempted to argue that Indiana Code §36-1-2-23 permits it to regulate the water in the Park because groundwater is a watercourse or body of water within the meaning of the statute. Indiana Code §36-9-1-10 states that a watercourse “includes, lakes, rivers, streams, and any other body of water.” Further, Avon argued that the Township and WCCD’s plan to sell the groundwater constituted a “business use” under Indiana Code §36-8-2-7, which authorizes “a unit [to]…regulate any business use of a water course.”
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In Time Warner, a television cable company assessed late fees against its customers when their payments were not received by the due date. Time Warner’s customers filed lawsuits in order to recover the late fees paid in excess of the company’s actual damages caused by the late payments. 802 N.E.2d at 887-889. The Indiana Supreme Court held in Time Warner that the voluntary payment doctrine did not apply to Time Warner’s customers and discussed three main factors to consider when deciding whether to apply the voluntary payment doctrine. Id. at 891. First, that court observed that Time Warner’s customers had to pay the late fees in order to continue to receive cable service. Id. Next, the Time Warner court approved of the comments in the Restatement (Third) of Restitution and Unjust Enrichment which “limits application of the voluntary payment doctrine to situations where a party has voluntary paid a disputed amount.” Id. (emphasis added). The Time Warner court also stated that “customers in a government created monopoly deserve special protection because they have no where else to go for cable services.” Id. at 892. Finally, the Time Warner court reformulated Indiana’s definition of the voluntary payment doctrine by citing the comments of Restatement (Third) of Restitution and Unjust Enrichment § 6 cmt. e (Tentative Draft No. 1, 2001) as follows:

     &nbsp[a] more appropriate statement of the voluntary-payment rule, therefore, is that money voluntarily paid in the face of a recognized uncertainty as to the existence or extent of the payor’s obligation to the recipient may not be recovered, on the ground of “mistake,” merely because the payment is subsequently revealed to have exceeded the true amount of the underlying obligation.
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