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December 19, 2019


Additional Retail Electric Choice Shopping Comments Filed

In Docket RE00000A-18-0405, several parties file comments in the Arizona Corporation Commission’s review of retail electric choice including retail electric suppliers.

Many suppliers’ comments opposed using the utility to serve as the default supplier or provider of last resort (POLR). One supplier took it even further recommending "[t]o facilitate this, ACC should establish a 90-day period prior to the opening of the market during which consumers are allowed and encouraged to select a competitive supplier. With sufficient consumer education prior to the market open date, consumers should be prepared to make these choices within a 90-day period, so they can be with their preferred supplier on day one. While a longer transition period could be chosen, such a path would merely permit consumers to procrastinate malting decisions when no valid basis exists for any further delay," NRG comments recommended.

On the utility side, APS argued that due to the commission’s lack of jurisdiction over wholesale generation (from which retail suppliers will source their supply and set rates), APS said that, "Importantly, the Commission will also lose its ability to ensure that electricity prices remain just and reasonable."

Regarding costs of creating a new RTO for Arizona, APS said, "In 2013, an analysis estimated that start-up costs for a stand-alone Arizona RTO would be at least $100 to $300 million, the implementation would take 4 to 5 years and it would have an annual operating cost near $100 million."

Tucson Electric Power Company (TEP) and UNS Electric, Inc. said the ACC would be required, under its constitutional charge, to set the return on equity for competitive suppliers
TEP said that under Arizona law, "service must be provided at just and reasonable rates that reflect fair value." "Establishing a fair rate of return on equity is necessary to this determination, lest competitive providers be given free rein to earn unjust, unreasonable returns," TEP went on to argue.

"Even though no other state with a restructured market limits return on equity for competitive providers, the Commission would be required to do so here in the process of establishing the maximum rates those suppliers could charge Arizona customers. If a provider's costs subsequently increase, that provider would need to file a rate case requesting Commission approval of a new, higher maximum rate. The Phelps Dodge ruling prohibits the Commission from simply deferring these rate making decisions to the market. This limitation is one of many reasons why electric 'competition' in Arizona would bear little resemblance to the free markets that drive growth and generate wealth in other sectors of our economy," TEP said
More broadly, TEP said regarding retail electric choice, "The evidence is clear that restructuring Arizona's regulatory system to allow retail electric competition would not serve the public interest. The steep cost of transitioning to such a system would drive fixed service costs higher, eliminating savings opportunities for all but the largest energy users. That situation would only get worse after out-of-state energy marketers cherry-pick large industrial customers. Residential customers and small businesses would bear a larger share of system costs in a complex, confusing marketplace that, in other states, has all too frequently resulted in overcharging and consumer fraud.


AAPS Floats AG-Y “Buy-Through” Program

In the Arizona Public Service (APS) filed a proposed AG-Y "buy-through" program for medium-sized customers per prior direction from the Commission that the company “shall either expand and modify its current AG-X competitive supply program to allow medium size commercial customers to participate or, "propose a new AG-Y alternative generation/buy-through program that would be for medium size commercial customers in its next rate case."

The existing program is capped for customers with an Aggregated Peak Load of 10 MW or more, which allows them to select a Generation Service Provider.

Under APS most recent proposal, the customer would not be allowed to its Generation Service Provider but rather would only be offered market index pricing that is currently available to the medium to larger customers.

In its proposed filing APS argues that it “has developed an experimental AG-Y proposal that provides access to market energy prices for eligible commercial customers without creating issues of resource adequacy, preferential transmission access or increased ancillary service costs bore by non-AG-Y customers. Under AG-Y, APS's proposal is to replace the base fuel related kWh and PSA charges with an hourly market index price and an administrative charge. Further, the hourly index price will be available the day prior to allow customers that can adjust their load to respond to the hourly price signal."

"Essentially, for AG-Y customers, APS will continue to provide resource adequacy," APS said.


Staff of the Arizona Commission Issues Initial Retail Electric Choice Report

On October 29, 2019 in Docket RE-00000A-18-0405 the Staff filed its initial retail electric competition research report with summary of findings regarding retail competition in other jurisdictions. Staff notes that its research project is ongoing and therefore should be viewed as a work-in-progress. "[T]he report is not intended to be read as a single narrative, but to be used as a reference representing a recapitulation of information available," Staff said.

"The report makes no determination on the value of retail competition, nor does it make any recommendations for or against restructuring the electric market in Arizona," Staff said.

"In recent years, there has been a convergence in prices between full-service providers and competitive service providers. This convergence has not been uniform, however, as some consumer sectors have seen greater benefits, in terms of pricing, than others. This is unsurprising, given the difference in the costs of serving the three types of end users. Consumers may receive other benefits beyond lower prices (e.g. budget certainty), which could not be illustrated here." - View the Staff Report Here

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Enforcement Action for Failure to File Compliant RPS Procurement Plans

In Rulemaking 18-07-003 the ALJ proposed decision warns electric service providers to file required RPS cost data or risk enforcement action. The ALJ notes that under existing rules Section 399.13(a)(5) suppliers are required to file RPS Procurement Plans with accompanying cost information. The proposed decision states, "[o]f the twenty-three ESPs, six currently do not serve any retail load. Pursuant to D.13-11-024, it is reasonable not to require an ESP to file a procurement plan if they do not serve any retail load. The exemption will expire if and when a non-load serving ESP begins or resumes serving load in California and thereby incurs RPS procurement obligations. This exception does not exempt the non-load serving ESPs from filing RPS Compliance Reports or making submissions other than the RPS Procurement Plan itself, in order to ensure accurate record-keeping and account for the potential of serving load during a portion of the compliance period."

"Parties that continue to disregard the clear order of this Commission that they provide RPS procurement cost information are at risk of enforcement action by this Commission. Any LSE that has not provided the information required in the 2019 ACR shall furnish such information with its final 2019 RPS Procurement Plan or risk such enforcement," the proposed decision warns.

The order said that ESPs submitted Plans lacking required information. The Commission made clear in its decision approving the 2018 Plans that ESPs would be required to provide greater detail in their 2019 Plans, including information explaining how each ESP plans to reach their Net RPS Procurement Need. Affected EPSs shall provide the missing detail (See Table 9) with their Final Plans no later than 30 days following Commission issuance of this decision. Parties that continue to disregard the clear order of this Commission to provide RPS procurement cost information are at risk of enforcement action," the proposed decision concludes.


Final Order Issued Regarding LSE and ESP Procurement Requirements

In Rulemaking 16-02-007 the California PUC issued a final order concerning the obligation of the load serving entity (LSE) and electric service providers to procure required incremental reliability and renewable integration resources.

The final order establishes the total capacity to be procured by all LSEs to be 3,300 MW. The final order states, "We have revised the total capacity procurement requirement downward, as suggested by CalCCA in comments on the revised proposed decision, to account for the changes to the baseline articulated in this decision and because we are prioritizing early procurement action over conducting additional analysis of the exact number that needs to be procured. We intend to further assess the need for additional capacity procurement almost immediately in this proceeding with the analysis of the next Reference System Portfolio and expect that additional procurement requirements may be necessary. But given the impending retirement of additional resources, including Diablo Canyon, we still assess that at least 3,300 MW of system resource adequacy capacity will be needed in the timeframe as a least regrets strategy."

Note that the ESP obligations are presented in aggregate due to the confidential nature of their load forecasts, but Commission staff will inform each ESP individually of its obligation within 10 business days of the adoption of the revised proposed decision.

The final order concludes that, “we will implement a preference that each LSE, regardless of whether it is an IOU or an ESP or CCA, is responsible for its own share of the incremental reliability and renewable integration resources identified herein as needed."

The final order also states, "We also clarify that the capacity procured by the IOUs in response to this decision will be allocated on a non-bypassable basis through a modified CAM mechanism and not PCIA. In other words, we will not reduce the cost allocation amounts to be recovered by the IOUs after load migrates. Thus, we do not make the modifications suggested by SDG&E, in its comments, to account for load migration before or after the CCA or ESP elects whether it will self-provide, or for PCIA vintaging."

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Two Separate Supplier Investigations Launched

PURA launched two separate investigations (Docket No. 07-06-13 and Docket No. 11-10-14)
for alleged noncompliance with the commission’s rules against Public Power, LLC and GDF Suez Retail Energy Solutions, LLC d/b/a Think Energy.

"Based on complaints from Connecticut residents, the Authority initiates this investigation pursuant to Conn. Gen. Stat. § 16-245u to determine if the licensed electric suppliers Public Power, LLC and Think Energy have complied with: Conn. Gen. Stat. § 16-245d regarding properly conveying supply summary information to the electric distribution companies for display on customer bills; Conn. Gen. Stat. § 16-245o regarding marketing to residential customers; Conn. Gen. Stat. § 16-245s regarding proper third-party verifications, Conn. Gen. Stat. § 16-245 regarding compliance with continuing licensing requirements; and Conn. Gen. Stat. § 42-110b regarding violations of the Connecticut Unfair Trade Practices Act," PURA said.

The order went on to state, "In lieu of issuing an immediate Notice of Violation against these licensed electric suppliers, the Authority refers this matter to the Prosecutorial Unit for further investigation and, if appropriate, subsequent settlement negotiations for the purpose of achieving a settlement that contains an appropriate civil penalty, extensive retraining of the suppliers’ third-party agents, and retention of all sales calls with continued auditing."


Hardship Customers to Be Moved To Default Service?

In Docket No. 18-06-02 the Connecticut PURA proposed order would require all hardship customers be dropped to Standard Service (default service) by March 1, 2020.

"The Public Utilities Regulatory Authority finds that customers defined as hardship pursuant to Sections 16-245o(m) and 16-262c of the General Statutes of Connecticut receiving electric supply from third-party suppliers have paid more for electric service than they would have receiving standard service supply from the electric distribution companies and they have not received commensurate value for this overpayment. This overpayment affects not only the hardship customers, but all Connecticut ratepayers contributing to the hardship payments. As a result, all hardship customers shall be transferred to standard service immediately upon the electric distribution companies’ completion of system programming necessary to prevent hardship customers from contracting with third-party electric suppliers" the proposed order finds.

Moreover, under the proposal, no later than March 1, 2020, Eversource Energy and The United Illuminating Company shall modify their systems to return all hardship customers to standard service, prevent future hardship customers from contracting with electric suppliers, and educating social service agency staff and customer service representatives of the change. In addition, by that same date the utilities are directed by the proposed order to return all hardship customers to default service and prevent future hardship customers from enrolling with retail electric suppliers.


Supplier Agrees to $750,000 Settlement

The Connecticut PURA has approved a final settlement agreement with Liberty Power Holdings, LLC ("Liberty"), under which Liberty would pay $750,000. The settlement provides that, "In full and final settlement of all allegations and claims set forth in the Liberty Power Superior Court Action and as full compliance with the civil penalty imposed in Order No. 1 of PURA's final decision dated July 31, 2019 in Docket No. 06-12-07RE07, Liberty Power agrees to pay the amount of seven hundred fifty thousand dollars ($750,000) to the General Fund of the State of Connecticut."

The settlement provides that such payment, "shall be in lieu of, and in full satisfaction of, the civil penalty assessed in Order No. 1 in the final decision in Docket No. 06-12-07RE07."

The settlement provides that, "Liberty Power shall fulfill Order No. 3, the Monitoring Provision, of the July 31, 2019 decision in Docket No. 06-12-07RE07. PURA will provide Liberty Power thirty (30) days from the date of the settlement to provide it with sufficient time to implement changes required by the decision and the monitoring will not start until after that date. Due to technical limitations, the monitoring does not obligate Liberty Power to change its current practice of beginning the recording for door-to-door sales once the customer has retrieved his/her bill.) PURA will not impose any sanctions against Liberty Power for its failure to comply with the requirements of the decision in 06-12-07RE07 until the date that Liberty Power has implemented changes required by the decision (i.e., 30 days after settlement)."

Except for the provisions noted above, the settlement provides that, "PURA's final decision in Docket No. 06-12-07RE07 remains in full effect as to Liberty Power, including compliance with Order No. 3 of the decision."


Supplier Directed to Cease Marketing

Via a letter in Docket No. 17-11-25 the Connecticut PURA "instructs Wattifi to cease enrolling new customers," until Wattifi addresses several concerns raised by the agency. In particular, PURA’s November 18, 2019 letter stated, “the Public Utilities Regulatory Authority (Authority) contacted Wattifi, Inc. (Wattifi) regarding a complaint received by the Authority’s Consumer Affairs Unit (CAU). In response to the CAU complaint, Wattifi indicated that the complainant became a customer as part of the Wattifi 'Friends and Family' plan and therefore did not have a contract with Wattifi."

The company explained that "[t]o fully test the Wattifi Customer Engagement process, customers that have enrolled, in particular residential customers as 'Friends and Family', have done so not as part of a marketing effort, but as part of a beta or development stage. However, notwithstanding where we are in our development, Wattifi will immediately address any issues raised by PURA to ensure that we are in full compliance with all policies and procedures and are maintaining the confidence of the Authority that we are fulfilling our mission: to provide Connecticut electricity consumers with access to the lowest electricity prices available."
PURA also directed Wattifi to modify its website to reflect that its real-time rate model is not currently in place and customers cannot gain direct access to wholesale market prices at this time. Wattifi was instructed “to demonstrate to the Authority by noon on Friday, December 6, 2019 that its website has been modified accordingly."

PURA also directed, Wattifi “to remove the vanity identification 'pura' from the following Universal Resource Locator (URL), and from the label on the tab at the top of the browser ... Inclusion of the Authority’s name within any supplier’s URL implies that the supplier is affiliated with a government agency, in direct contravention of Conn. Gen. Stat. § 16-245o(h)(4). Wattifi must also demonstrate to the Authority by noon on Friday, December 6, 2019 that its website has been modified accordingly."


Connecticut Proposed Order Would Prohibit Bundled Renewable Products Using UCB

In Docket 16-12-29, PURA issued a proposal that (among other things) would prohibit retail electric suppliers from providing electricity plans that exceeds the state's RPS if such plan is billed through utility consolidated billing (UCB). If adopted, any supplier offering renewable energy plans that do not meet the proposed requirements would need to bill for such services using dual billing. More specifically, under the proposed order all electric products billed via UCB would have to be REC-only plans, at prescribed percentage state levels including local sourcing requirements. levels and which meet state requirements (including local sourcing).

Specifically, PURA proposes that voluntary renewable offers (VRO) may not be combined or bundled with a generation supply offer that is billed under utility consolidated billing. PURA’s apparent rationale for the proposed change appears to be that customers are not able to readily identify the cost or source of the renewable component that is associated with the voluntary renewable component.

Under the proposal, "[a]ny generation supply offer billed through consolidated billing would not be allowed to exceed the then-current minimum RPS."

"The VRO would be separately marketed, and as noted above, separately billed as a line item on customer bills. Furthermore, any VRO billed as a separate line item through consolidated billing could include only RECs that satisfy the above requirements so as to comply with Connecticut laws and policies," PURA's proposal states.

"All supplier generation offers under consolidated billing would be identical to EDC Standard Service supply as it relates to their renewable content in that all offers would be at the then current minimum RPS," PURA's proposal states. "This would allow consumers to accurately compare their generation supply options. Separately identifying unbundled VROs would provide greater transparency regarding the RECs used to support renewable energy and allow consumers to choose among clearly identified and priced renewable options," according to PURA's proposal.

"Suppliers would be free to market non-local RECs, e.g., Green-e certified, Texas wind, or those supported from other nationally sourced generation resources; however, the supplier would need to directly bill the customer for the VRO supported through these types of RECs and inform the customer that the RECs do not meet Connecticut standards," the proposed order states.

"Because all VROs would be unbundled and separately identified as a line item on the electric bill, the cost of the unbundled VRO would be identified and recovered through the customer’s bill. The EDC would collect the funds associated with the VRO and remit said funds only after the supplier demonstrated that it retired the appropriate number of RECs for the associated load. The number of RECs would be based on billed sales, and therefore readily tracked. The Authority understands that this structure is similar to the manner in which CEOP [clean energy options] currently is administered," the proposed order states.


Proposed New Supplier Licensing, Security and Website Rate Posting Requirements

In Docket 19-10-41 he Connecticut PURA issued proposed revisions to the electric supplier licensing rules including modifications to supplier security requirements.

Under the PURA’s proposal, a supplier would be required to maintain a security bond based on its load served in the previous calendar year according to the following schedule:

    • Annual load up to 100,000 MWh - $250,000
    • Annual load 100,001 to 499,999 MWh - $500,000
    • Annual load 500,000 to 1,000,000 MWh - $1 million
    • Annual load > 1,000,000 MWh - $2 million

The draft rules contain the following proposed changes for the electricity shopping rate board:

    • All electric suppliers must honor all generation rates the supplier has posted to the Rate Board.
    • Licensed electric suppliers shall self-report all generally available generation offers to the Connecticut Rate Board following a process established by the Public Utilities Regulatory Authorit
    • All generally available rates must be all-inclusive.
    • All electric suppliers must follow standardized language issue by the Authority when self-reporting.
    • Rates that appear on a supplier’s internet website must be posted to the Rate Board, thereby aligning these resources.
    • Rates entered into the Rate Board database cannot exceed five decimal places, e.g., $0.00000, but will be displayed on the rate board in cents per kWh, rounded to two decimal places.
    • Each offer that is self-reported to the Rate Board database is considered a regulatory compliance filing.

The proposed order also adds the following new requirements relates to the rates or offers posted to supplier’s website:

    • All electric suppliers must honor all rates or offers posted to their websites.
    • All rates or offers posted to an electric supplier’s website including a claim of savings must include a clear and conspicuous disclosure of how the savings will be calculated and what the supplier will do if the savings are not realized, together with any time or other limitations the supplier may impose.

The draft rules provide that an electric supplier shall maintain its company website to include the following:

    • The supplier’s official name and trade name(s), if any;
    • PURA docket numbers and titles pertaining specifically to the supplier to show its regulatory history in Connecticut, including all licensing and relicensing dockets and history of dockets of companies acquired through mergers or license transfers, and all PURA investigation dockets that have been concluded;
    • Customer service contact information, including a phone number at which a live company representative(s) (not an answering service) must be available during normal business hours;
    • PURA contact information;
    • The website must also list and provide information concerning all generally available offers, renewable products and information about the source of renewable energy (e.g., RECs), standard contracts, and enrollment forms; and
    • Any other information deemed necessary by the Authority.

Note also that the draft rules would also require suppliers to annually report to PURA a list of third-party agents.


$60,000 Settlement Reached Agreement to Cease Serving Customers

In Docket No. 17-06-23, the Prosecutorial Staff (PRO) of the Connecticut PURA ("Authority") and Abest Power & Gas, LLC (Abest) reached a settlement agreement to resolve Abest's renewable portfolio standard (RPS) alternative compliance payments owing from the 2014, 2015, 2016 and 2017 compliance years.

Per the settlement Abest shall pay sixty thousand dollars ($60,000). "These payments are voluntary and do not constitute restitution, civil penalty or disgorgement," the settlement reads. Moreover, the settlement provides that, "Abest agrees that it will not seek to serve Connecticut customers now, or at any time in the future."

The settlement provides that the payments specified above shall be in lieu of, and in full satisfaction of, the alleged violation and any civil penalties listed in the NOVs and any ACP due or any penalties that were or otherwise could have been assessed under a notice of violation for the 2014, 2015, 2016, and 2017 RPS compliance years.


PURA Proposes Modification to Renewable Portfolio Standards (RPS) Obligations

In Docket 19-10-26, Connecticut PURA proposes revised RPS obligations. "In recent years, the Authority has encountered situations where electric suppliers have amassed large RPS obligations and filed for bankruptcy or left the market without meeting those RPS obligations. Current bonding requirements are insufficient to cover the shortfalls, and the timing of the current annual review process does not allow the Authority to quickly address, or prevent the accrual of large, unmet RPS obligations," the proposed order states.

"As a result, the Authority plans to transition to a more real-time system of allocating and settling renewable energy credits (REC). The Authority believes that a more real-time system will prevent significant RPS shortages, better facilitate the General Assembly’s clean energy goals, and reduce the administrative burden associated with tracking, reporting, and approving annual REC obligations," PURA said.

Under the proposal suppliers would be required to settle a pre-specified minimum percentage of their quarterly RPS requirement in the trading period associated with the months the load was served using monthly billing or load settlement data obtained from the utility adjusted for line losses. Suppliers would be allowed a true-up during the fourth quarter settlement period for any remaining, unsettled RPS requirements for the annual period.

Under the proposal, suppliers would also be required to submit quarterly reports each year demonstrating compliance with a minimum amount set by PURA requirements set forth in sections 16-245a and 16-243q of the Connecticut General Statutes for each of their respective quarters.

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District of Columbia

PSC Adopts Rule Changes Clarifying Rescission Period

In Docket RM3-2019-01-G the District of Columbia PSC has adopted final rules clarifying the start of the rescission period for electric and natural gas contracts.

Currently, Subsection 327.15 provides a customer with three (3) business days to rescind a contract regardless of the solicitation method, and reads as follows:

An Energy Supplier shall advise a Customer that he/she has the right to rescind the Contract agreement within the three (3) business day Rescission Period that begins on one of the following dates:

    • When the Customer signs the Contract;
    • When a positive Third-Party Verification or electronic recording has been made;
    • When the Customer transmits the electronic acceptance of the Contract electronically; or
    • When the Completed Written Contract is deposited in the U.S. Mail.

"The Commission said that it concurs with comments filed by OCC that consumers should have an opportunity to receive the completed written contract before the rescission period begins even though it could result in a slight delay in the customer receiving the new service from the energy supplier," the PSC said.

As such the Subsection 327.15 (d) was modified such that the rescission period begins when a mailed contract is received by the customer rather than at the time the contract is deposited in the mail. Specifically, Subsection 327.15 (d), "shall read as follows: 'When the Completed Written Contract is received in the U.S. Mail, there is a rebuttable presumption that a Contract correctly addressed to a Customer, with sufficient first-class postage attached, shall be received by the Customer three (3) days after depositing in the U.S. Mail.”


Proposed Rules Require Suppliers to Notify Customers of Billing Errors

In RM3-2019-01 et al the DC PSC proposed revisions to consolidate the current billing error reporting rules, by adding a new requirement that retail electric and natural gas suppliers would have to provide billing error notifications to customers.

The proposed billing error rule changes require that no later than sixty (60) days after the date the Electric Utility, Natural Gas Utility or Energy Supplier discovers or is notified of the billing error(s), it shall notify each affected customer of the following:

    • The nature of the error;
    • The amount by which the customer's previous bill(s) was inaccurate;
    • If appropriate, the steps the Electric Utility, Natural Gas Utility or Energy Supplier will take to ensure that the customer receives a full refund if overbilled, or when customers will be required to make payment if underbilled, no later than sixty (60) days; and
    • The Electric Utility, Natural Gas Utility or Energy Supplier shall by letter, bill insert, or any other means by which the Electric Utility, Natural Gas Utility or Energy Supplier and the customer have agreed to communicate, describe to customers the nature of the billing error and the corrective action that the company intends to implement. If a refund or outstanding balance appears on a customer's billing statement, the Electric Utility Natural Gas Utility or Energy Supplier shall provide a clear description and explanation of the reason(s) for the error.

The proposed change would also extend the deadline by which suppliers must report to the PSC an initial billing error notification, with the initial report now due within three business days of the supplier discovering or being notified of the error.


DC PSC Proposes Revised Rules to Implement Recent RPS Legislation

In RM29-2019-01 the most recent revised rules state, "Energy supply contracts executed prior to March 22, 2019, the effective date of the CleanEnergy Act, shall not be subject to the increased Tier One and Solar Energy requirements required by the CleanEnergy Act through January 1, 2022; but any extension or renewal of such contracts, executed on or after March 22, 2019, shall be subject to the increased Tier One and Solar Energy requirements as required by the CleanEnergy Act."

The latest draft adds clarification that, "RECs shall be valid for a three-year period from the date of generation, except that Solar RECs produced by Solar Energy systems which meet the requirements of D.C. Official Code § 34-1432(e)(1) and which may, therefore, be used to meet the Solar Energy portion of the Tier One requirement shall be valid for a five (5)-year period from the date of generation. These Solar RECs shall be valid for a five (5)-year period from the date of generation provided they were generated as of or after March 22, 2019, the effective date of the CleanEnergy DC Omnibus Amendment Act of 2018 (CleanEnergy Act) (D.C. Law 22-257). A newly certified Renewable Generator can produce RECs starting from January 1st of the year in which it was certified, except that any Renewable Generator certified in January of any year can produce RECs starting January 1st of the year before that certification."

The revised language also adds that "After December 31, 2028, the RECs that had been produced by generating facilities, on or before that date, that were certified as a Tier One source located within an Adjacent PJM State on or before March 22, 2019, the effective date of the CleanEnergy Act, shall be valid for the remainder of the three (3)-year period from the date of generation. The Solar RECs produced by such facilities, on or before December 31, 2028, shall be valid for the remainder of the five (5)-year period from the date of generation."


Accelerated Switching and Elimination of Minimum Stay Tariff Approved

The District of Columbia PSC has adopted compliance tariffs from Pepco to implement the previously ordered implementation of accelerated switching. Under the prior PSC order, "[t]he Electric Utility shall transfer a Customer to a competitive electricity supplier in no later than three (3) business days after receiving the notice of an enrollment transaction from the competitive electricity supplier." Furthermore, "[t]he Electric Company shall transfer a Customer to SOS in no later than three (3) business days after receiving the customer's request." (See: FC712 - 2019 - M - 1682; FC1017 - 2019 - E - 853; RM3-2014-01 - 75; RM41-2017-01-M - 2019 – 31)

The order also approves tariff elimination of the 12-month minimum stay on SOS for commercial customers who return to SOS after taking competitive supply.

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ICC Staff Recommends Range of $350,000 to $1 Million Penalty Against RES

In Docket No. 18-1540 Staff of the Illinois Commerce Commission recommends a $350,000 to $1,000,000 financial penalty against LifeEnergy, LLC for alleged violations of certain 412 enrollment and compliance rules. Staff alleged that, “LifeEnergy did not fail to comply out of mere inadvertence, it failed to comply with multiple sections of Part 412 and failed to address some of the violations Staff identified. Staff argues that LifeEnergy knew or should have known the date upon which compliance with Part 412 was required, given multiple communications from Staff, as well as the provisions of the rule itself."

Among other compliance issues, Staff alleged that, "it identified multiple instances of the Company’s sales agents approaching customers and attempting a second TPV during the 24-hour waiting period prescribed by Section 412.120(g)." Staff said that it reads Section 412.120(g) to require that, "[i]n-person solicitations that lead to an enrollment require a Letter of Agency or a third-party verification." 83 III. Adm. Code 412.120(g). In addition, Staff notes that Section 412.120(g) states, "[t]he RES shall not approach the customer after the TPV [third party verification] for a period of 24 hours unless contacted by the customer." 83 III. Adm. Code 412.120(g).

In addition, Staff alleged that LifeEnergy, "not only failed to certify to the Commission the training of its sales agents, but it also failed to train them on the amended rule prior to allowing them to market or sell to customers in Illinois." Specifically, Staff points out that Part 412 requires that an ARES ensure that its sales agents are "fully knowledgeable" of Part 412 and provide certification to the Commission of their training prior to an agent soliciting consumers on its behalf. 83111. Adm. Code 412.170(a) and (e).

Staff recommended the Commission impose a "financial penalty" ranging from $350,000 to $1,000,000, in addition to requiring that LifeEnergy provide refunds to all customers enrolled by untrained agents based upon the difference between what the customer paid to LifeEnergy and what the customer would have paid to their default electric supplier.


Mark Your Calendar - ICC ORMD To Hold New HEAT Act WebEx

ORMD will be hosting a WebEx with the utilities and suppliers that will focus specifically on the “utility assistance recipient” provision of the Act. Staff has heard concerns from suppliers about enrolling customers receiving financial assistance and the utilities being prepared to reject those enrollments as required by the SB 651 (HEAT Act) that becomes effective 1/1/2019. Prior to the WebEx Staff’s goal is to collect questions from the ARES/AGS community and supply them to the utilities ahead of time to be answered during the WebEx.

The WebEx is scheduled for Thursday, December 19th at 10 am Central. Please email any questions you may have for the utilities regarding this topic to Due to the number of participants on the call, we will be muting the participants who are not speaking to minimize any background noise.

To Join the WebEx Meeting:

Meeting number (access code): 287 511 684
Meeting password: cAqUz8pJ
Join by Phone: 1-312-535-8110

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Maine PUC Establishes Alternative Compliance Payment (ACP) Mechanism

In Docket No. 2019-00177, the Maine PUC has adopted final rules to implement the recently enacted L.D. 1494 including the ACP as well as established a new Class IA RPS for suppliers and SOS suppliers.

Under the new law, "[t]he commission shall set the alternative compliance payment rate by rule, which may not be greater than $50, and shall publish the alternative compliance payment rate by January 31st of each year." The PUC ordered that the ACP be set at $50 per MWh.

The PUC adopted ACP mechanism language stating that: “The Class I and Class IA requirements of this section may be satisfied by an alternative compliance payment according to this subsection. The payment for an applicable year shall be made to the Commission by July 1 of the following year." "For RPS requirements on or after January 1, 2020, the alternative compliance payment rate shall be $50.00 per megawatt-hour," the adopted rule states. The PUC said, "Because the market prices of Class IA RECs cannot be known in advance with any certainty and, historically, a high ACP has not affected the market rate Class I RECs, the ACP in the amended rule is $50 per megawatt-hour for both the Class I and Class IA portfolio requirements."

The final rule also adopted exemption language, stating that “electricity sales pursuant to a supply contract or standard-offer service arrangement that is in effect on or before September 19, 2019, is exempt from the requirements of this section until the end date of the current term of the supply contract or standard-offer service arrangement." The PUC further explained, "The Commission agrees with the majority of commenters that the exemption applies to retail electricity sales pursuant to a supply contract or standard offer service arrangement that was in effect on or before the effective date of the Act, September 19, 2019, regardless of whether it was originally executed, renewed or extended prior to or on that date. However, for simplicity, the amended rule refers to contracts that are in effect as of September 19, 2019."


PUC Issues Show Cause To Cease Enrolling New & Renewed Customers

In Docket No. 2010-00376, the Maine PUC issued an order to show cause to Clearview Electric, Inc, (Clearview) under which the retail supplier was directed to, "show cause why it should not be found to have violated Maine statutes and Commission rules regarding its operations as a licensed competitive electricity provider (CEP) in Maine and be subject to appropriate sanctions." Clearview was directed to respond to this Order in writing by November 29, 2019.

Among other things, the PUC stated that, "Beginning in May 2019, CMP and the Commission's Consumer Assistance and Safety Division (CASD) began receiving complaints regarding Clearview's door-to-door marketing activities. The nature of the complaints included: the marketer claims to be an employee or representative of CMP; need to check the meter for accuracy; and marketing to a customer that did not speak English."

The PUC further stated that, "the Commission hereby directs Clearview to show cause why its marketing practices should not be found to have violated Maine statute and Commission rules regarding its operations as a licensed CEP in Maine. Specifically, the Commission directs Clearview to show cause why its license as a CEP in Maine should not be revoked or suspended with respect to marketing to and enrolling new customers or from re-enrolling existing customers at the end of the customer's term of service."


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Utilities Modify Proposal to Transfer PJM Price Responsive Demand Credits To Utilities

The utilities filed revisions to their previously proposed Maryland tariffs to establish a process by which retail electric suppliers must transfer, to the utility, credits, which the suppliers receive from the PJM Interconnection, LLC (PJM), that are associated with each utility's participation in the PJM capacity market as a price responsive demand (PRD) resource.

The Maryland utilities have argued that the current PJM process does not account for the utilities bidding PRD on behalf of their delivery customers, including competitive supply customers for which the utility is not the LSE. As such, the EDCs argue that, for shopping customers, PRD credits resulting from actions undertaken by customers through utility PRD programs will inappropriately be provided by PJM to the customer's retail supplier (LSE) rather than to the respective utility.

The utilities argue that the retail suppliers should be required to execute a Billing Line Item Transfer (BLIT) with PJM thereby transferring the financial credits associated with the EDC's PRD resource from the third-party supplier’s PJM bill to the EDC's PJM bill.

Suppliers had objected to the initial Billing Line Item Transfer (BLIT) mechanism proposed by the utilities "because it would foreclose suppliers from offering PRD programs to their customers."

As a result of follow-up discussions with RESA and WGL Energy, the utilities are proposing to include additional language in the tariff to address the possibility that retail electricity suppliers offer a PRD program in Pepco's territory. Absent changes by PJM whereby it would credit a PRD provider for its own PRD customers, retail electricity suppliers will continue to be subject to a Billing Line Item Transfer but would submit a bill to the EDC for the financial credits and costs associated with the retail electricity supplier's PRD customers. "This would ensure that PRD credits and costs are correctly allocated between Pepco and the retail electricity supplier," the EDCs said.

Note that BGE already indicates at the time of customer enrollment, via an EDI transaction, whether a customer is participating in a BGE demand response program. However, the other utilities do not currently have an EDI data identifier in place that informs suppliers whether a customer is participating in an EDC load management program. Pepco and Delmarva have indicated that they are updating its enrollment response transaction to include these indicators and expect to implement this function during the first quarter of 2020.

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Supplier Accepts 150,000 Settlement and Agrees to Cease Marketing For One Year

As part of the settlement agreement with the Massachusetts Attorney General (AG) Platinum Advertising has agreed to pay $150,000 to settle allegations of deceptive retail electric and gas marketing and sales practices and has agreed to cease operating as a retail supplier in in the state for one year.

The AG’s Office alleged, “Platinum Advertising, through its door-to-door marketing on behalf of competitive electric suppliers, falsely promised energy savings, falsely represented an affiliation with the customer’s utility company, switched customers to a competitive electric supplier without authorization, entered customers’ homes without permission, and berated customers who refused to sign a contract with one of the suppliers for whom Platinum marketed electricity supply."

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Michigan PSC Reminds Customers of Natural Gas Shopping Website and Rate Board

The Michigan Public Service Commission reminded Michigan businesses and residents that, "Michigan’s natural gas price comparison website [CompareMIGas] is a valuable resource to help them make informed decisions when choosing a natural gas provider or evaluating their current rates."

"The MPSC is encouraged that hundreds of thousands of people have visited the CompareMIGas website since it was launched in October 2015," the PSC said.

"The website features the rates currently offered by all alternative gas suppliers actively marketing or enrolling customers in Michigan, as well as the basic terms and conditions of offers. The website also features the current MPSC-regulated gas cost recovery rates charged by the four natural gas utilities that offer natural gas choice in their service territories: DTE Gas Company, Consumers Energy Company, SEMCO Energy Gas Company and Michigan Gas Utilities Corporation," the PSC said.

The commission notes that as of September, 363,690 customers statewide participated in the Gas Customer Choice Program and goes on to add that about 76 percent of Michigan households heat with natural gas.

"If you’re considering purchasing your natural gas through an alternative gas supplier, be sure to shop around. Browse CompareMIGas website? to compare rates but be sure you understand the terms and conditions before signing a contract, and always be mindful of who is supplying your natural gas and the rate you are paying. The MPSC encourages customers to regularly monitor their energy bills," the PSC advised customers.

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New York

NY PSC Order Limits ESCO Mass Market Product Offerings and So Much More!

On December 13, 2019 the New York PSC has issued an order that drastically limits ESCO products and far stricter solicitation restrictions on mass marketing. Note, unless otherwise stated, the PSC's order applies for residential or small non-residential customers. See Order: NY PSC December 12, 2019 Order

The PSC's order applies for residential or small non-residential customers (mass-market customers). Except where specifically noted otherwise, all provisions apply to only mass market customers, which includes small non-residential electric customers defined by the PSC as non-demand metered customers and small non-residential gas customers are defined as those using less than or equal to 750 dekatherms (dth) per year.

Among several other requirements, the PSC ordered that, "effective 60 calendar days from the date of this Order, energy service companies (ESCOs) shall enroll new residential or small non-residential customers (mass-market customers) or renew existing mass-market customer contracts for gas and/or electric service only if at least one of the following conditions is met:

    • enrollment includes a guaranteed savings over the utility price, as reconciled on an annual basis;
    • enrollment is for a fixed-rate commodity product that is priced at no more than 5% greater than the trailing 12-month average utility supply rate;
    • enrollment is for a renewably sourced electric commodity product that
      • has a renewable mix that is at least 50% greater than the ESCO’s current Renewable Energy Standard (RES) obligation,
      • the ESCO complies with the RES locational and delivery requirements when procuring Renewable Energy Credits (RECs) or entering into bilateral contracts for renewable commodity supply, and\
      • there is transparency of information and disclosures provided to the customer with respect to pricing and commodity sourcing."
        [emphasis added].

Permissible Fixed Rate Products
In terms of permissible fixed rate products, the order states that "as an interim measure, fixed-rate products will be limited to a price no greater than the trailing 12-month average utility supply rate plus a premium of no more than 5%." To effectuate this new requirement, the utilities were directed to ensure that this 12-month average utility supply rate data is provided on their websites for each mass-market service class and for each mass-market customer grouping that receives different supply rates based on the applicable tariff. The utilities were also directed to establish a standard quarterly schedule for updating this data. Specifically, utilities shall publish on their websites 12-month average utility supply rates within 15 days of March 31, June 30, September 30, and December 31.

The order further directs the ESCOs to implement any necessary modifications to any new fixed-rate contracts based on a change in the referenced average utility supply rate within five days of the deadline of utility publication.

The PSC further said, "While the Commission is allowing fixed-rate products to continue so long as the ESCOs comply with the pricing requirements, we leave open the possibility that, upon future consideration, fixed-rate products sold at prices higher than utility rates will be disallowed entirely."

The order also directed staff to “monitor the initial results of the instant reform - imposing a premium cap - and then evaluate the need for future additional customer-protection proposals regarding fixed-rate products, including prohibition of the product, in light of customers’ rights to reasonably and transparently priced energy services."

New Fixed Rate Automatic Contract Renewal Requirements
The order states that “any ESCO that automatically renews a fixed-price customer shall be required to place that customer on a variable-price commodity-only contract [will be required to be offered at a guaranteed savings], unless the ESCO obtains affirmative customer consent to continue with a fixed-rate plan, even if the contract otherwise provides for the renewal of the existing fixed-rate plan." [Emphasis added]

"Any mass-market customer contract for a fixed-rate commodity service that is subject to automatic renewal shall be renewed by the ESCO only as a contract for variable-rate, commodity-only service that includes a guaranteed savings over the utility price, unless the ESCO obtains affirmative customer consent to renew the contract as a fixed-rate contract that is priced at no more than 5% greater than the trailing 12-month average utility supply rate."

"Considering that all future variable-price commodity-only ESCO contracts will be required to be offered at a guaranteed savings, a fixed-rate ESCO customer that is rolled over to a variable-price commodity-only contract will be protected from unreasonably high prices and/or rate shock associated with the change in contract terms," the order read.

Permissible Variable Rate Products
In terms of variable rate products, the order states that, "rather than prohibit variable-rate, commodity-only offerings, such offerings will be permitted only if the ESCO guarantees to serve the customer at a price below the price charged by the utility on an annually reconciled basis." Moreover, any variable rate product “must guarantee savings on an annual basis, or with greater frequency; to achieve this, the ESCO must perform a reconciliation on an annual basis, or with greater frequency, and provide a credit or refund to any customers who were billed more over the relevant period than they would have been billed had they remained on the utility default supply rate. ESCOs providing a guaranteed savings product must also perform such a reconciliation when customers taking such products cancel their ESCO service and must provide a credit or refund to any customers who were billed more over the relevant period, either since the end of the previous reconciliation period or since the customer was enrolled if no reconciliation period had yet ended, than they would have been billed had they remained on the utility default supply rate." The order went on to state that “[i]n either case, the credit or refund must be at least as large as the difference between what the customer was billed during the relevant period and what the customer would have been billed had the customer remained on the utility default supply rate." [emphasis added]

Permissible Renewable Electric Products
The order states that, "ESCOs will be permitted to offer a renewable product that is less than 100% renewable, so long as: (1) the renewable percentage mix is at least 50% greater than is required by the RES LSE obligation for the year; (2) the ESCO complies with the RES locational and delivery requirements when procuring RECs or entering into bilateral contracts; and (3) there is transparency of information and disclosures provided to the customers." It is important to emphasize that these three permissible products may only be offered to customers who are not assistance program participant (APP) customers. The existing prohibition on service to APP (low-income customers), absent a future PSC-approved guaranteed savings plan, remains in place.

In order “[t]o address concerns regarding the current availability of renewably sourced electricity and RECs, ESCOs will not be limited to procuring electricity or RECs from RES Tier 1 eligible generation facilities, however. Rather, any generation facility satisfying the Climate Leadership and Community Protection Act (CLCPA) definition of 'renewable' - and whose electrical output satisfies the locational and delivery requirements – will be eligible, regardless of the facility’s vintage."

The PSC order further states that, "ESCOs will be required to satisfy their minimum renewable requirement in the same ways they satisfy their annual CES requirements and by entering into purchase agreements with any generator of any vintage that satisfies the CLCPA definition of 'renewable.' In other words, ESCOs will be permitted to satisfy their minimum renewable requirement by: (1) by purchasing RECs from eligible renewable generators through NYGATS; (2) by purchasing Tier 1 RECs from NYSERDA; (3) by procuring RECs from eligible renewable generators through bilateral contracts; (4) by making Alternative Compliance Payments (ACP) to NYSERDA; or (5) by entering into bundled energy and REC purchase agreements with eligible renewable generators."

"[A]ll voluntary renewable electricity purchases made by ESCOs will be subject to the same locational and delivery requirements as Tier-1-eligible REC purchases," the order states.

Given the newly required on-bill price comparison, the Commission order notes that "the premium associated with the renewable product compared to the utility product will be readily apparent to a customer."

Regarding marketing renewable plans to low-income customers, the PSC said that, "[t]he Appellate Division, Third Department, recently upheld the Commission’s prohibition on ESCOs serving low-income assistance program participants unless an ESCO can guarantee that the customer will pay no more than he or she would have paid to the utility. We find that this requirement remains appropriate, and we note that ESCOs can always provide renewable commodity products to those low-income customers if the product meets the aforementioned price-guarantee requirements."

Restrictions on Value Added Product Offerings
"Value-added products and services that have no energy-related benefit and/or that are offered as a one-time promotion do not further the energy policy goals of the State and, therefore, provide no value in the context of the retail energy market. These promotional items, such as gift cards or other 'swag,' are frequently offered as promotions to induce customers to sign a contract with the ESCO. However, the market value of these items often is significantly less than the price the customer ultimately pays for the item or service over the term of the contract. Accordingly, because these promotional items typically do not provide any energy-related benefit to customers, ESCOs are prohibited from offering them to prospective customers as inducements to sign a contract," the PSC said.

In terms of potential permissible products, the PSC said, "Among the energy-related value-added products or services that ESCOs could develop are demand-management programs or tools, voluntary dynamic pricing programs or tools, and energy-efficiency measures."

"Other examples of desirable energy-related, value-added products and services include: sophisticated energy-management services and smart-grid technologies; energy storage products; and electric vehicle-related services," the PSC said.

In terms of low-income customers, the PSC noted that, "[t]he Appellate Division, Third Department, recently upheld the Commission’s prohibition on ESCOs serving low-income assistance program participants unless an ESCO can guarantee that the customer will pay no more than he or she would have paid to the utility. We find that this requirement remains appropriate, and we note that ESCOs can always provide renewable commodity products to those low-income customers if the product meets the aforementioned price-guarantee requirements."

"Value-added products and services that have no energy-related benefit and/or that are offered as a one-time promotion do not further the energy policy goals of the State and, therefore, provide no value in the context of the retail energy market. These promotional items, such as gift cards or other 'swag,' are frequently offered as promotions to induce customers to sign a contract with the ESCO. However, the market value of these items often is significantly less than the price the customer ultimately pays for the item or service over the term of the contract. Accordingly, because these promotional items typically do not provide any energy-related benefit to customers, ESCOs are prohibited from offering them to prospective customers as inducements to sign a contract," the order states.

On-Bill Price Comparison Requirements
The PSC said, "A clear price comparison would also identify the difference between those two amounts in a manner that unambiguously conveys whether the customer is saving money or paying a premium for the ESCO service." Moreover, ‘[t]he Commission also finds that customers could benefit from a bill that contains a chart showing the preceding 12-month period and a comparison of the ESCO price paid by the customer and the price the utility would have charged over that term. An ideal price comparison also would identify the difference between those two 12-month amounts in a manner that unambiguously conveys whether the customer is saving money or paying a premium for the ESCO service over that term," the PSC said.

"We recognize that achieving these goals requires a tailored approach given that each utility may face unique hurdles to ubiquitously conveying price-comparison information. As one obvious example, differences in the utilities’ information technology systems could alter the costs, or reasonable implementation timelines, between the utilities if we were to direct utilities to provide identical information in an identical manner on a unified timeline," the PSC said, as further work will be done to develop the solutions.”
"The methods for conveying price comparison information could include, but are not limited to, websites, regular mail, email, customer service representative interactions, and interactive voice recording system interactions."

Effective Date
"ESCOs currently operating in New York that intend to continue to renew contracts with customers in New York and/or enroll new customers in New York following the effective date of Ordering Clause No. 1 (i.e., 60 calendar days following the date of this Order) are directed to file an application in accordance with the body of this Order no later than 30 calendar days following the date the revisions to the Uniform Business Practices become effective (i.e., no later than 90 calendar days following the date of this Order)." [emphasis added]

"Existing ESCOs that currently are validly operating in New York will continue to be eligible to operate pending the effective date of the modified UBP adopted in this Order. However, all currently operating ESCOs that wish to continue operations by enrolling new customers or renewing contracts with existing customers following the effective date of the modified UBP."


The New York PSC Approves UCB for Community Distribution Generation Projects

In Case 19-M-0463, the New York PSC electric utilities issued and order allowing community distributed generation (CDG) providers to bill for such projects via the utility’s consolidated bill.

"The Commission adopts the net crediting model of consolidated billing proposed in the Joint Utilities’ comments and in Platform 1 in the National Grid Petition. Under the net crediting model, the CDG Sponsor would enroll a project in net crediting and would designate the CDG Savings Rate for that project, which represents the percentage of the project’s monthly value that will provided to members after the subscription charge is subtracted out. For example, if the total value of credits generated by a project in a particular month is $10,000, the CDG Savings Rate for that project is 10%, and that project is evenly divided among ten members, each member of the project would receive a Net Member Credit on his or her bill of $100, for a total of $1,000 in Net Member Credits, while the CDG Sponsor would receive a Sponsor Payment of $9,000 from the utility in the form of a direct monetary payment. Because CDG Savings Rate will always be greater than zero, the members are guaranteed to save money on their bills each month. This use of a specified percentage benefit for CDG members each month is already a common method familiar to CDG Sponsors, but the ability to effectuate it through the utility bill will substantially reduce costs and complexity," the PSC said.

The PSC said that, "As compared to the more traditional consolidated billing used for ESCOs, where the ESCO identifies a charge for the utility to put on the customer’s bill and the utility collects that charge on behalf of the ESCO,11 the net crediting model avoids putting the utility in the position of collecting a higher charge than it would have applied to the customer by guaranteeing savings to the customer. Therefore, it can be assumed that any partial payment or nonpayment would have happened even in the absence of the customer’s CDG membership and there is no risk that the amount of uncollectibles or the utility’s exposure will increase."

Concerning the required uniform savings rate for subscribers of a specific project, the PSC said,

"As contractual arrangements with large customers participating in CDG projects are likely to be different and more complex than with mass market customers, CDG Sponsors are permitted to engage in additional contractual and financial transactions with large customers receiving net crediting outside of the net crediting arrangement. However, for mass market customers billed under the net crediting arrangement, CDG Sponsors may not charge any additional fee or otherwise require additional payment outside of the net crediting arrangement."

Moreover, the PSC said, "To avoid unnecessary complication in implementing the net crediting model, for each individual project for which net crediting is used, the utility may require the CDG Sponsor to use net crediting for all customers of that project. To ensure that this does not prevent large customers from participating in CDG, net crediting should be available for all customer classes. However, to the extent that it can be done without significantly increasing the implementation timeline or costs, each utility should also consider allowing a CDG Sponsor to exclude one large, anchor customer from a net crediting arrangement in a project where all other customers are included in a net crediting arrangement. The Joint Utilities should identify whether they are able to include this option in the Implementation Plan filings."
Note that the Commission’s ordered emphasized the poit that net crediting is an optional program for CDG providers. Also note that any CDG Sponsor may choose to use net crediting for some projects but not all.


New York PSC Adopts Initial Cybersecurity and Data Privacy Requirements

On October 17, 2019, the New York Public Service Commission issued an Order on cybersecurity policy and protections stemming from the Joint Utilities Data Security Agreement (DSA), Self-Attestation, the business-to-business process and multiple related petitions. (CASE 18-M-0376 - Proceeding on Motion of the Commission Regarding Cyber Security Protocols and Protections in the Energy Market Place; CASE 15-M-0180 -Distributed Energy Resource Providers and Products; and CASE 98-M-1343 - In the Matter of Retail Access Business Rules.)

“Maintaining the security of customer utility data and the distribution utilities’ IT systems is essential to ensure that markets operate efficiently and that customers are not harmed by the unauthorized release of their data. The DSA presented by the Joint Utilities in the Petition, with the modifications discussed above, establishes the minimum cybersecurity and data protection requirements necessary to access customer data through utility IT systems. Cybersecurity is an ever-changing issue, and one the Commission expects to address in future proceedings, including the examination of a more risk-based approach to supplement the foundational protections provided for in this Order.”
In this Order the Commission declined to adopt the utilities’ cybersecurity insurance provision. Instead the Commission adopted minimum cybersecurity and data privacy requirements for entities that receive from or exchange customer data with the utilities on an electronic basis other than by email.”

The Order held that “data is the customer’s data and that customers have a right to direct or consent to the use of that data” and retitled “Confidential Utility Information” under the DSA as “Confidential Customer Utility Information (CCUI)” as a result. The Commission adopted the Self Attestation form with modification by finding that encryption of CCUI will not be required for email communication.
Regarding UBP Section 2.F., the Commission found that an entity’s failure to execute a DSA does not necessarily constitute “a significant risk that compromises system security” resulting in disconnection from the utility IT system; that the utility must assert an entity’s “action or inaction presents a specified risk to the utility’s IT systems”; an entity must be afforded due process protections prior to disconnection; and Staff will be involved in overseeing such process.

Regarding suppliers concerns about the DSA’s restriction on entities’ ability to create derivative data from customer data provided by the distribution utility, the Order found that it is a matter of customer consent and modified the language of the DSA to address that concern.
In terms of the DSA’s audit requirement the Commission held that the audit should be performed by a third party and paid for by the utility acknowledging that it is inappropriate for the utility to be acting in an oversight role of a competitor.

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PUCO Staff Seek $10.2 Million for Supplier Noncompliance

In Case 19-2153-GE-COI, Staff issued a second notice of probable non-compliance seeking forfeiture of up to $10.2 million for alleged misleading and deceptive marketing practices by PALMco Power OH, LLC, d/b/a Indra Energy and PALMco Energy OH, LLC d/b/a Indra Energy (collectively, PALMco). Citing the prior notice, Staff alleged that, "PALMco was on notice as of April 16, 2019 that Staff believed it was engaging in misleading, unfair, and unconscionable conduct. However, PALMco continued to engage in the same behavior and charge customers unconscionable rates.”

In addition to the $10.2 million forfetiture, Staff proposes that PALMco take the following corrective actions:

    1. "Staff strongly recommends that PALMco immediately cease charging customers variable rates in excess of the default service offer in Ohio. Because PALMco failed to inform its customers of how it would be calculating its variable rates and has continued to charge customers unconscionably high variable rates inconsistent with other market rates in disregard of an ongoing Commission investigation into PALMco’s provision of CRES and CRNGS in Ohio, Staff believes that PALMco cannot continue to charge customers a variable rate," Staff alleged
    2. "PALMco should immediately re-rate all customers that were charged a variable rate from August 1, 2019 to present. 'Re-rate' or 're-rated' means PALMco will calculate the difference between the rate it charged to the customer and the rate the customer would have paid to the applicable utility under the utility’s standard service offer or default rate, and refund or credit the difference to the customer," Staff said
    3. "PALMco should send a written notice to all customers on a variable rate contract that they will be re-rated and why," Staff said


PUCO Set Date to Exclude Load & Usage of Mercantile Customers for RPS Obligation

In Case 19-2031-EL-UNC the Commission established a date for baseline reductions to exclude the load and usage of mercantile customers in terms of calculating an electric service company's (ESC, retail supplier) and EDU's renewable energy portfolio obligation.

As required by Amended Substitute House Bill No. 6 of the 133rd Ohio General Assembly, January 1, 2020 was established as the effective date for baseline reductions to exclude the load and usage of mercantile customers in terms of calculating an electric service company's (ESC, retail supplier) and EDU's renewable energy portfolio obligation.

"We note EDUs and ESCs, pursuant to Ohio Adm.Code 4901:1-40-05, are required to file their annual renewable energy portfolio status reports with the Commission for each calendar year on April 15th of the following year. As such, setting January 1, 2020 as the effective date for baseline reduction provides ample time for EDUs and ESCs to calculate their new baselines for 2020 while providing expedited relief to customers from charges necessary for compliance with statutory requirements, as explained further below," PUCO said.

Pursuant to R.C. 4928.644, beginning January 1, 2020, the baselines for EDUs and ESCs will be reduced by the exclusion of mercantile customers that are registered as self-assessing purchasers such under R.C. 5727.81(C). Upon the reduction, EDUs and ESCs will be relieved from the amount of compliance with renewable energy requirements under R.C. 4928.64 that would be required but for the reduction.

Further, such self-assessing mercantile customers will also be exempt from any bypassable charge imposed for compliance with renewable energy requirements under R.C. 4928.64, PUCO ordered.


Supplier Agrees To $19,000 Settlement

In Case 19-1590-EL-UNC the Commission approved a stipulation between SmartEnergy Holdings, LLC ("SmartEnergy") and PUCO Staff SmartEnergy whereby the supplier agrees to pay $19,000 to resolve Notice of Probable Non-Compliance dated July 13, 2018. Among other things, Staff had alleged that a review of SmartEnergy sales calls, "revealed that SmartEnergy sales agents were using misleading and deceptive practices to market to and enroll customers, including referring to the enrollment as simply entering a sweepstakes."

The stipulation states that SmartEnergy has implemented all of the corrective actions proposed in the Staff's Notice Letter including the following:

    • Reviewed all complaints brought to SmartEnergy's attention by Staff and resolved the complaints to Staff's satisfaction, including re-rating customers.
    • Provided Staff with the contracts, welcome letters, standard communications, scripts, and marketing materials related to the current marketing offer and agreed with all of Staff's recommended changes to this material.
    • Ceased marketing and enrollments using the sweepstakes marketing offers that Staff believes to be out of compliance with applicable Ohio Administrative Code provisions.

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REP Files Petition Seeking Declaratory Order Regarding Prepaid Levelized Payment Plan

In Docket 50257 Pogo Energy filed with the Public Utility Commission of Texas a petition seeking a declaratory order concerning the construction of Substantive Rule 25.498(a) as it relates to a proposed offering of a levelized payment option for prepaid service.

In its filing, Pogo state that it "is in the process of developing a proposed service plan that customers could opt-into or opt-out of at any time, without restrictions, and would operate on a daily basis to level (or smooth) the impacts to a customer's prepaid account balance."
"Under this plan the customer would be billed each day for actual usage consistent with § 25.498, and a post-billing adjustment (leveling payment plan) would be applied to smooth changes to a prepaid customer's billing account. (Absent such smoothing, daily charges can vary by as much as 400%."

Pogo said that, "Pogo has had several discussions with the Staff of the Public Utility Commission ('Commission'), including the staff from Oversight and Enforcement, and Commission staff have repeatedly expressed the view that the proposed service plan is inconsistent with § 25.498(a) and the preamble to § 25.498, as adopted in 2011."
"Pogo Energy contends that this construction of the rule is incorrect, and § 25.498(a) does not prohibit a REP from offering a level or average payment plan to its prepaid service customers," Pogo argues.


$35,000 Settlement Reached Between REP and the TPUC

The Texas PUC approved settlement where Gexa Energy, LP will pay $35,000 to resolve alleged violations of 16 Texas Administrative Code (TAC) §§ 25.475, regarding compliance with retail electric provider requirements and information disclosures to residential and small commercial customers, and 25.479, regarding issuance and format of bills.


TPUC Staff Files Draft Rules Governing Licensing and Regulation of Brokers

In Project 49794, Staff of Texas Commission filed draft rules for publication governing the registration and regulation of electric brokers. Some key highlights include the following:

    • "A description of how the broker will be compensated for providing brokerage services and by whom. If the broker is compensated directly by the client, the broker must disclose the details of the compensation."
    • An agreement between a broker and a client that authorizes the broker to act as a "client agent" for the client must be, "memorialized on paper or electronically."
    • "All written, electronic, and oral communications, including advertising, websites, direct marketing materials, and billing statements produced by a broker must be clear and not misleading, fraudulent, unfair, deceptive, or anti-competitive."
    • "A person must not provide brokerage services, including brokerage services offered online, in this state for compensation or other consideration unless the person is registered with the commission as a broker. A retail electric provider (REP) is not permitted to register as a broker and must not knowingly provide bids or offers to a person who provides brokerage services in this state for compensation or other consideration and is not registered as a broker. A REP may rely on the publicly available list of registered brokers posted on the commission's website to determine whether a broker is registered with the commission."
    • "A broker that is not an agent of a REP under 25.471(d)(10) of this title (relating to General Provisions of Customer Protection Rules) may enter into an agreement with a REP to assume all or part of the REP' s responsibilities under §25.474 of this title (relating to Selection of Retail Electric Provider) for the purpose of enrolling applicants or customers for retail electric service. A broker that assumes the responsibilities of a REP under §25.474 must comply with the requirements of §25.474. A REP that enters into an agreement with a broker to assume all or part of the REP's responsibilities under §25.474 remains accountable under §25.107(a)(3) of this title (relating to Certification of Retail Electric Providers) for compliance with all applicable laws and commission rules for all activities conducted by the broker related to those responsibilities. An agreement between a REP and a broker under this subsection must be memorialized on paper or electronically and provided to the commission upon request."
    • "Each broker must ensure that clients have reasonable access to its service representatives to make inquiries and complaints, discuss charges on bills, terminate service, and transact any other pertinent business."
    • All records required by the broker registration and regulation rule must be retained by a broker for no less than two years, unless otherwise specified.
    • A broker registration expires three years after the date of the assignment of a broker registration number
      Each broker registrant must submit the information required to renew its registration with the commission not less than 90 days prior to the expiration date of the current registration. An expired registration is no longer valid, and the broker will be removed from the broker list on the commission's website.

Prohibited communications include:

    • Stating, suggesting, implying or otherwise leading a client to believe that receiving brokerage services will provide a customer with more reliable service from a transmission and distribution utility (TDU);
    • Falsely suggesting, implying or otherwise leading a client to believe that a person is a representative of a TDU, REP, aggregator, or another broker;
    • Falsely stating or suggesting that brokerage services are being provided without compensation, and
    • Falsely claiming to be the client agent of a customer.


Texas REP Agrees to $145,000 Settlement

In Docket 50102 the TPUC approves settlement between XOOM Energy Texas, LLC and PUC Staff under which XOOM. The Retail Electric Provider is to pay $145,000 to resolve alleged violations of 16 Texas Administrative Code (TAC) § 25.474, concerning XOOM Energy's door-to-door enrollment practices from January 1, 2018 to January 12, 2019.

"XOOM Energy is no longer engaged in door-to-door enrollments. To prevent future similar violations, XOOM Energy commits that if it plans to resume door-to-door enrollments in the future, it will: (1) inform Commission Staff prior to resuming door-to-door enrollments, and (2) ensure that access verification data is collected at the time of enrollment in compliance with Commission Rules," the order reads.

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Earth Etch helps unravel the complexities of regulatory and utility compliance for energy companies throughout the world.

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