6. The inclusion of NITS costs in default supply auction products and retail supply contracts artificially drives up default service bids and competitive retail offers. FES St. 1, 5:11-15. 7. EGSs seek to maintain a relationship with all customers, including large industrial customers. Exelon St. 1R, 6:19-22. 8. Without assurance that they can pass through NITS costs, EGSs who wish to continue to market retail products labeled "fixed price" must take the risk of absorbing the costs entirely, attempt to obtain customer consent to a price increase reflecting these new charges at the risk of losing customers, or price any such costs attributable to those customer classes into the fixed price at the outset of the contract. FES St. 1, 7:10-8:6; RESA St. 1, 23:14-24:17. 9. EGS have experienced swings in NITS costs in the PJM territory due to increased transmission investment. FES St. 1, 8:8-18. III. DISCUSSION A. LEGAL STANDARDS 1. Burden of Proof Section 332(a) of the Public Utility Code, 66 Pa.C.S. § 332(a), provides that the party seeking a rule or order from the Commission has the burden of proof in that proceeding. It is well-established that burden of proof before administrative tribunals as well as “[a] litigant’s before most civil proceedings is satisfied by establishing a preponderance of evidence which is substantial and 578 Samuel J. Lansberry, Inc. v. Pa. Pub. Util. Comm'n, legally credible.” A.2d 600, 602 (Pa.Cmwlth. 1990). FirstEnergy has the burden of proving it has met the requirements for approval of its proposed default service plan.
6. The inclusion of NITS costs in default supply auction products and retail supply contracts artificially drives up default service bids and competitive retail offers. FES St. 1, 5:11-15. 7. EGSs seek to maintain a relationship with all customers, including large industrial customers. Exelon St. 1R, 6:19-22. 8. Without assurance that they can pass through NITS costs, EGSs who wish to continue to market retail products labeled "fixed price" must take the risk of absorbing the costs entirely, attempt to obtain customer consent to a price increase reflecting these new charges at the risk of losing customers, or price any such costs attributable to those customer classes into the fixed price at the outset of the contract. FES St. 1, 7:10-8:6; RESA St. 1, 23:14-24:17. 9. EGS have experienced swings in NITS costs in the PJM territory due to increased transmission investment. FES St. 1, 8:8-18. III. DISCUSSION A. LEGAL STANDARDS 1. Burden of Proof Section 332(a) of the Public Utility Code, 66 Pa.C.S. § 332(a), provides that the party seeking a rule or order from the Commission has the burden of proof in that proceeding. It is well-established that “[a] litigant’s burden of proof before administrative tribunals as well as before most civil proceedings is satisfied by establishing a preponderance of evidence which is substantial and legally credible.” Samuel J. Lansberry, Inc. v. Pa. Pub. Util. Comm'n, 578 A.2d 600, 602 (Pa.Cmwlth. 1990). FirstEnergy has the burden of proving it has met the requirements for approval of its proposed default service plan.
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