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