Electric Retail Issues

CLARFICATION ORDER

BY THE COMMISSION:

On August 11, 2009, the Commission issued an Opinion and Order at this docket specifying a number of actions that PPL Electric Utilities Corp. (PPL or Company) must take as its generation rate cap is lifted at the end of this year. These actions are designed to minimize barriers to retail competition in PPL’s service territory pursuant to our authority under the Electricity Generation Customer Choice and Competition Act (Competition Act), 66 Pa. C.S. §§ 2801-2812. PPL now asks us to clarify one aspect of that order.

We addressed PPL because its generation rate cap will terminate at the end of this year and because its default service plan would not be effective until 2011 -- a year after the cap expires.[1] We identified eight areas in which, with just a few changes in its procedures, we believe PPL could advance competition among suppliers in its service territory. After receiving and considering comments on our Tentative Order, entered May 15, 2009, in this docket, we issued the August 11 Order. One of the areas addressed in that order was the “Customer Information Database (Customer List).” August 11 Order at 5-7.

With respect to the customer information database, we directed PPL to review its customer list for accuracy, to refresh the list if it had not done so in the last quarter, and to take certain other steps regarding the maintenance and dissemination of the list. Id. PPL had stated that some time after customer choice was phased-in, it discontinued refreshing and issuing the list because of the low level of shopping then in existence. In response to the Tentative Order, PPL stated that it made a commitment as part of a settlement of its DSP proceeding to update its customer Release of Information database in the first half of 2010, in accordance with 52 Pa. Code § 54.8. PPL stated it was willing to advance the solicitation of customers, if the settlement parties were in agreement to this change.[2]

Since PPL was willing to advance the solicitation of customers provided that it received the agreement of the parties to the settlement, we directed that it go forward if the settlement parties agreed. August 11 Order at 34. We allowed 14 days after entry of the August 11 Order for those parties to respond. OCA, RESA, Direct Energy and Constellation have responded that they either did not object or agreed with advancing the date for updating the customer information base. No other party responded to the August 11 Order. We shall, therefore, interpret their silence as nonopposition to advancing the date for updating the database.

The Petition

On September 23, 2009, PPL filed a Petition for Clarification, or in the Alternative Amendment, of the August 11 Order. PPL states that it has discovered “apparent conflicts” between: the Commission’s electric choice regulations at 52 Pa. Code §54.8 (Privacy of customer information, electric); our order in Procedures Applicable to Electric Distribution Companies and Electric Generation Suppliers During the Transition to Full Retail Choice, Docket No. M-00991230, Order entered May 18, 1999; our regulations for Natural Gas Distribution Companies (NGDCs) at 52 Pa. Code § 62.78 (Privacy of customer information, natural gas); and the Commission’s web site regarding disclosure of customer information. Petition, p. 4.

PPL states that the electric choice regulations at section 54.8 allow a customer to restrict release of the customer’s telephone number and/or historical billing data. PPL also states the 1999 Order directed electric distribution companies (EDCs) not to include customer telephone numbers on customer information provided to EGSs. Petition, p. 5. PPL argues that the Commission stated that customers should have the opportunity to restrict the release of all information to EGSs. Id. Additionally, PPL says our customer privacy regulations for natural gas customers states that customer telephone numbers will not be released to third parties. Id., citing 52 Pa. Code § 67.78. Also, natural gas customers may restrict the release of all private data. Id. Finally, PPL states that the Commission’s Customer Choice web site explains that:

EDCs are required to release all customer name, address and usage information to suppliers, unless the customer tells the utility to not release the information. (Note: phone numbers are not given to suppliers).

Petition, p. 6.

PPL concludes that the 1999 Order, the natural gas customer privacy regulations and the Commission’s web site are consistent with prohibiting utilities from disclosing customer telephone numbers and allowing customers to prevent the release of all information. PPL states that it believes it must adhere to those requirements when updating its customer information data base. Id. Therefore, PPL proposes to send each of its customers an information disclosure form which will inform them that the rate cap is to expire and that, in order to receive offers from competing suppliers, they should not opt out of disclosing their customer information to EGSs. PPL further proposes to allow customers 15 days in which to respond and, if no response is received, the customer’s information will be posted on the customer information data base. However, customers’ telephone numbers shall not be released to suppliers. Id. PPL has attached to its Petition a proposed letter which it proposes to send each of its customers explaining their choices.

PPL also asked us to afford the Petition expedited treatment. To that end, on September 25, 2009, we issued a Secretarial Letter requiring that answers to the Petition be filed not later than October 5, 2009. Timely answers were filed by the Energy Association of Pennsylvania (EAPA), OCA, PPLICA, RESA, Dominion Retail, Inc. (Dominion), and Direct Energy.

Answers of the Parties

The EAPA supports the Petition for Clarification. It states that its members, which include seven EDCs, adhere to the 1999 Order. It asks us to clarify that the rules governing release of customer information contained in the 1999 Order remain the standard for EDCs in Pennsylvania. EAPA Answer, p. 2. OCA also supports the PPL Petition. OCA Answer, p. 2. OCA argues that PPL should give customers notice and an opportunity to restrict disclosure of all private customer account information. OCA Answer, p. 5. It also asks that we prohibit the release of customer telephone numbers. Id.

PPLICA also agrees with PPL’s Petition. Moreover, PPLICA contends that customers should have the right to restrict the release of all account information including load data, consumption information and rate schedules. PPLICA Answer, p. 3. PPLICA states that the competitors of large commercial or industrial customers can use this information to predict the customers’ business trends. Id. It also urges us to more widely publicize the method for customers to opt out of disclosing their information to suppliers. PPLICA Answer, pp. 5-6.

RESA states that it supports the Petition, but only to the extent that it agrees that this matter should be resolved quickly. RESA Answer, pp. 1-2. Contrary to OCA and some others, it argues that customer telephone numbers should, in fact, be provided to EGSs. Id.

The substance of the Petition is also opposed by Dominion and Direct Energy. Dominion stresses the necessity for EGSs to receive updated data in sufficient time to sign up customers before the rate cap expires. Dominion Answer, pp. 2-4. It argues:

Presently, competitive supplies are the only real chance for customers in PPL’s service territory to avoid the financial hardship that could otherwise be cause by the projected significant rate increases that will occur in 2010. Any delay is tantamount to destroying that opportunity for customers for at least several months in the beginning of the year.

Dominion Answer, p. 5. It notes that while there may be some apparent conflict among the 1999 Order, the web site and the regulations referenced by PPL, the PUC web site is not binding on utilities and the NGDC regulations are inapplicable to an electric distribution company. Dominion Answer, pp. 8-10.

Dominion suggests a solution whereby the Commission would direct PPL to refresh its database before the end of the year and to release the following information which Dominion believes would be non-controversial:

·  Customer name;

·  Account number;

·  Rate class and sub-class;

·  Service address; and

·  Billing address.

Dominion Answer, p. 5. Once the Commission has clarified its order, PPL could release additional information, such as customer telephone numbers should the Commission determine to allow that. Id.

Direct Energy states that it believes there is no conflict between existing regulatory requirement which includes customers’ telephone numbers as information which will be released and the 1999 Order. Direct Energy Answer, p. 2. It argues that only customer telephone numbers which are unlisted are the only numbers which may be considered private information and potentially restricted. Direct Energy Answer, pp. 2, 4-6. It also stresses the need for a quick resolution of this matter so that EGSs may be provided with updated customer data.

Discussion

In its recent default service settlement, submitted March 11, 2009, the Company made a commitment with its customers and EGSs, to update its customer information and to provide it to the EGSs:

65. PPL Electric will update its customer Release of Information (“ROI”) database through a one-time mailing (either bill insert or post card) to customers in the first half of 2010 to update customer information release preferences as part of its customer education plan. PPL Electric acknowledges that it will comply with 52 Pa. Code §54.8 in undertaking the mailing.

Petition of PPL Electric Utilities Corporation for Approval of a Default Service Program and Procurement Plan for the Period January 1, 2011 Through May 31, 2013, Docket No. P20082060309, Joint Petition for Settlement, p. 19. We approved this settlement in our order regarding PPL’s default service program. Petition of PPL Electric Utilities Corporation for Approval of a Default Service Program and Procurement Plan for the Period January 1, 2011 Through May 31, 2013, Docket No. P20082060309, Opinion and Order entered June 30, 2009.

The primary change made in this proceeding to what PPL has already agreed to do was to advance the date for updating the customer information. In fact, we set forth the procedures by which customers could opt out of giving EGSs their service information in our Tentative Order where in we stated:

The process by which customers may opt out of providing their information to EGSs should be repeated prior to the removal of the generation cap and annually thereafter. PPL’s continuing education efforts should inform customers that if they wish to receive and consider competitive offers they should not opt out. Customers cannot take advantage of better offers for service, if they are unaware that they exist. We recognize that we cannot require PPL to provide phone numbers of residential and small business customers without their permission, but it should provide EGSs with the numbers for commercial and industrial accounts. Those customers should be able to restrict that information through an opt-out option, if they choose.

Tentative Order at 6. As noted above, our August 11 Order made the advancement of the date of this activity contingent upon the concurrence of the other settlement parties and that agreement was obtained. This is all rather straightforward. If there was a problem here, it certainly could have been addressed by the parties in the DSP proceedings. Nonetheless, we shall adopt Dominion’s suggested solution in order to resolve this problem and clear up any confusion as expeditiously as possible.

We will direct PPL to update its customer database immediately and to release, for each customer account, the following information not less than 30 days before the rate cap expires:

·  Customer name;

·  Account number;

·  Rate class and sub-class;

·  Service address; and

·  Billing address.

Customers may restrict the release of all historical billing data consistent with 52 Pa. Code § 54.8(a)(2). The Company may make any changes to its proposed letter to customers it believes are necessary in light of these requirements. Any other information, with the exception of customer telephone numbers which is addressed below, not restricted by customers shall be made available to EGSs not later than December 31, 2009.

Our actions here are controlled by the privacy regulation for electric customers at 52 Pa. Code § 54.8. Dominion is correct that the privacy regulation for natural gas customers is not applicable here. Also, information on customer rights and responsibilities contained on our web site is intended to reflect the state of the law, our regulations and our orders; however, it is not controlling in, and of, itself. As to the 1999 Order, it remains in effect, but it is important to remember that it was intended to govern the transition into a competitive market. That period ends December 31, 2009, for customers of PPL when the last rate cap expires.

We have a concern with respect to the release of customer telephone numbers. It would seem possible that an EGS calling a customer who has placed his or her name on the state’s “Do Not Call” list could be in violation of Pennsylvania’s Telemarketer Registration Act.[3] The Telemarketer Registration Act prohibits telemarketer calls to persons who have placed their name and telephone number on the Do Not Call list: