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RESA Seeks Interim Pa. Guideline Governing Use of Utility Name/Logo by Unaffiliated Supplier

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October 18, 2010

The Retail Energy Supply Association has asked the Pennsylvania PUC to adopt interim guidelines, to be followed by a subsequent rulemaking, to develop standards governing the use, by a competitive supplier, of a non-affiliated distribution company's name and/or logo. The request came in the licensing docket of Interstate Gas Supply, which has filed to add the trade name Columbia Retail Energy to its license (A-125051).

"RESA submits that neither IGS, nor any other [supplier], should be permitted to use the name and/or logo of a non-affiliated [distribution company] until the rulemaking has concluded and the rules become effective."

If the Commission declines to initiate such a rulemaking, RESA sought a hearing on Interstate Gas Supply's license amendment to develop a record on the issue of, "whether IGS's proposed d/b/a of Columbia Energy Retail [sic] is misleading and in violation of the Commission's Code of Conduct applicable to [suppliers]."

RESA argued that the rules' silence with respect to the use of a distribution company's logo by a non-affiliated supplier, "presents the real concern that a non-affiliated [supplier] could mislead consumers (particularly residential and small commercial consumers) to believe that its services are those of the [distribution company], or even the [distribution company's] affiliate."

RESA said that, "[t]his confusion is exacerbated by the marketing practices of Columbia Gas of PA's affiliate, Columbia Retail Services, which likely will use the same marketing channels (e.g. U.S. mail) as ‘Columbia Retail.'"

Columbia Retail Services offers repair services and service plans for HVAC systems, gas lines, and appliances.

RESA said that the Commission should require a non-affiliated supplier using the logo and/or name of a distribution company to disclose on all marketing materials and bills, in close proximity to the name or logo and in "conspicuous" sized font, the supplier's legal name, and a disclosure stating that the supplier is not affiliated with the distribution company.

Ohio Certificate Amendment Approved, IGS Says
Separately, in a motion contra a cease and desist order sought by several competing suppliers in Ohio, Interstate Gas Supply said that, even if PUCO action were required to affirm its notice of material change in its supplier certificate, under which it added the trade name Columbia Retail Energy to its certificate, the change has been approved by operation of law in any event.

IGS said that a material change filing, per O.A.C. 4901:1-27-10, "is a notice filing, and no additional activity is required by the Commission or the certified supplier after such filing is made."

However, even if the material change required a new certificate to be issued, IGS argued that the change has been approved under the certification rules. Under the rules of certification, O.A.C. 4901:1-27-06(A), "[i]f the commission does not act upon an application within thirty days of the filing date, the application shall be deemed automatically approved pursuant to section 4929.20 of the Revised Code on the thirty-first day after the official filing date."

"IGS filed its Notice of Material Change on August 6, 2010. The Commission did not act upon the Notice within thirty days of its filing. Therefore, in accordance with R.C. 4929.20 and O.A.C. 4901:1-27-06, IGS' material change was approved by operation of law," IGS said.

While IGS does not believe it was necessary to wait 30 days after the filing to use the Columbia Retail Energy service mark, "out of abundance of caution IGS did not use the Columbia Retail Energy trade name in the market until after September 6, 2010, allowing the full 30 days to expire."

IGS also responded to arguments that it cannot use the name Columbia Retail Energy since the name does not appear on the actual certificate issued by PUCO. IGS cited some half a dozen suppliers whose trade names do not appear on their actual certificates, including, as noted by Matters, Dominion Retail, whose trade names Dominion Energy Solutions and Dominion East Ohio Energy do not appear on its certificate, despite being authorized in Dominion Retail's application.

"[T]he Objecting Parties do not point to any rule that requires a certified supplier certificate to list the trade names under which the certified supplier does business. Further, a cursory review of other Ohio certified suppliers' certificates shows that the Commission has never listed each trade name under which a certified supplier operates on PUCO certificates; only the applicant's legal name is listed," IGS said.

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