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OCC Asks PUCO to Issue Cease and Desist Order to IGS Regarding Columbia Retail Energy Trade Name

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September 30, 2010

The Ohio Consumers' Counsel, Northeast Ohio Public Energy Council, Border Energy, Inc, Stand Energy Corporation, and Delta Energy, LLC petitioned the Public Utilities Commission of Ohio to require Interstate Gas Supply to, "immediately cease and desist from using the trade name 'Columbia Retail Energy' and the Columbia logo until such time as there is a final determination as to whether the use of the Columbia trade name and logo is unfair, misleading, deceptive, or constitutes unconscionable acts or practices."

The joint movants also asked PUCO to, "order sanctions in the form of a forfeiture of one thousand dollars per day for each instance of IGS advertising and marketing its services under the Columbia Retail Energy trade name and the Columbia logo without a valid certificate permitting such action pursuant to Ohio Adm. Code 4901:1-34-08."

In an earlier response to several motions to intervene, IGS stated that it is not violating any law or Commission rule by marketing under the name Columbia Retail Energy, and has gone to great lengths to comply with 4901:1-29-05(C)(8)(f), regarding disclosures of utility affiliates, even though it is not affiliated with Columbia Gas of Ohio.

The joint movants essentially argued that IGS, "does not have a certificate, issued by the PUCO, authorizing IGS to market under the trade name Columbia Retail Energy."

First, despite this assertion, it is unclear whether IGS does or does not have a certificate authorizing IGS to market under the trade name Columbia Retail Energy.  Second, it is unclear whether any such certificate is even required in cases of an additional trade name.

The joint movants note that on August 6, IGS filed a notice of material change (in the form of a pleading) asking that PUCO take notice of IGS' new trade name Columbia Retail Energy.  At that time, IGS had a pending license renewal request originally filed on June 21 which did not include the Columbia Retail Energy trade name.

On August 10, 2010, PUCO issued renewal Certificate No. 02-002G(5) to Interstate Gas Supply, Inc.  The renewal Certificate is effective July 24, 2010 through July 24, 2012.  After the issuance of the renewal certificate, and at the request of Staff, IGS on August 12 filed a revised copy of the first page of its renewal application listing Columbia Retail Energy as a new trade name, which had previously been noticed but not included on any application page.

Joint movants correctly observe that, "The second page of the [renewal] Certificate states that the company name and company name d/b/a is 'Interstate Gas Supply.'"

"Nowhere in the renewal Certificate is IGS authorized to use the name Columbia Retail Energy or the Columbia Gas logo," joint movants thus conclude.

However, this is not dispositive of anything, because PUCO is apparently inconsistent in listing trade names on the actual certificate, even though there is a field for the listing of trade names.  Indeed, as joint movants note (but do not acknowledge), the only name on the Interstate Gas Supply certificate is Interstate Gas Supply, and the certificate does not list the trade name IGS Energy, a trade name previously approved by PUCO and listed as a trade name in the renewal application.  Joint movants do not assert that Interstate Gas Supply cannot market as IGS Energy because the name is not on the certificate itself.

The same trade name issue is true for at least one other retail gas supplier.  Dominion Retail's most recent certificate only lists the name "Dominion Retail" despite its renewal application listing the trade names Dominion East Ohio Energy and Dominion Energy Solutions, but it has not been suggested that Dominion Retail is not authorized to use those trade names since they do not appear on the certificate itself.

The question then becomes did the IGS renewal certificate issued on August 10 incorporate and authorize the material name change noticed on August 6, even though a revised application page was not submitted until August 12.  As joint movants focus on the parochial issue of the names listed on the certificate itself, they do not address this broader question of whether the renewal certificate incorporated the notice of the new trade name.

Notably, IGS has said that it has consulted with the Commission Staff regarding appropriate disclosures related to the use of the Columbia Retail Energy trade name and received input and recommendations as to the type of disclosures IGS should make while marketing under the service mark Columbia Retail Energy.  

Furthermore, it is not even clear that utilizing a new trade name prior to explicit PUCO approval is contrary to any code or law.  While citing requirements for suppliers to be certified before providing service, joint movants did not cite any code on precedent on point requiring that a new trade name, or any other amendment, to a supplier application shall receive additional PUCO approval prior to being used, which is the issue at hand, at least with respect to allegations that past and current use of the name is contrary to the licensing rules (apart from the policy issue of whether the trade name should be allowed to continue to be used prospectively, in which case it is clear PUCO has authority to address this matter if it so desires).

Indeed, 4901:1-27-10, Ohio Adm. Code, relating to material changes in business, suggests that the supplier may continue to operate with the material change in place (in this case, a new fictitious name) until otherwise directed by PUCO.  Specifically, 4901:1-27-10 requires after-the-fact notice of the material change, but does not mention any required notice to PUCO prior to the change.

O.A.C. 4901:1-27-10 does provide that after notice and an opportunity for a hearing, the Commission may suspend, rescind, or conditionally rescind a retail natural gas supplier's certificate if it determines that the material change will adversely affect the retail natural gas supplier's fitness or ability to provide the services for which it is certified; or to provide reasonable financial assurances sufficient to protect natural gas companies and the regulated sales service customers from default.  O.A.C. 4901:1-27-10 does not address the permitted operations, such as the use of the new trade name, from the time that the material change if filed to the time of PUCO action, if any.

Joint movants made their motion in IGS' licensing docket, Case No. 02-1683-GA-CRS.  IGS has argued that the trade name issue does not affect its fitness as a supplier, and therefore cannot be addressed in the licensing docket, stating that protestors should file a separate complaint to pursue their claims.

    
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