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Texas PUC Executive Director Issues Notice of Violation To Aggregator, Seeks $15,000 Civil Penalty

February 17, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The executive director of the Public Utility Commission of Texas has issued a Notice of Violation (NOV) against Current Utilities, Inc. and its affiliated companies, My CyberStaff, Inc. and UtilCare, Inc. based on a report from Staff of the Oversight and Enforcement Division which alleges that Current Utilities, Inc. is operating as an aggregator without a certificate to do so from the Commission, and which seeks a $15,000 civil penalty.

Current Utilities may request a contested case hearing on the alleged occurrence of the alleged violation or continuing violation, and the amount of the penalty. According to a footnote in a Staff report, Current purports to provide energy brokering services to customers in Texas, which does not require PUC licensure

Oversight and Enforcement Staff alleged that Current Utilities has violated PURA § 39.353(a) and 16 TAC § 25.111(d)(1) relating to registration of aggregators, "because Current continues to operate as an aggregator in the state of Texas without registering as an aggregator with the Commission."

"Staff believes that Current is acting as an aggregator despite failing to register as an aggregator with the Commission. Current is a successor company of Tremcor Energy, Inc. (Tremcor), which has been registered with the Commission as an aggregator since May 2004. In August 2010, the Commission issued an order approving a settlement agreement between Staff and Tremcor relating to Tremcor's failure to file an Annual Aggregator Report to the Commission in each of the five years since its registration. Current informed Staff that it acquired Tremcor's customer base and assets in August 2010," Oversight and Enforcement Staff alleged

"Staff became aware of Current through informal complaints filed with the Commission's Customer Protection Division," Staff said.

Based on responses to a request for information, contract documents between Current and one of its REP partners, and a description of Current's activities on its website, Enforcement Staff alleged that:

• "Current joins customers together in a pool that Current exercises control over through the use of a power of attorney over each account;

• "Current monitors the marketplace for contract terms that are beneficial to Current and/or its customer pool;

• "When Current believes a better offer for its customer pool exists in the marketplace, Current negotiates with various REPs over price and other contract terms and enters into a new agreement on behalf of its customer pool;

• "Upon entering the new agreement with a different REP, Current transfers its entire customer pool with the existing REP to the new REP using the power of attorney."

Enforcement Staff alleges, "that this behavior establishes that Current is providing aggregator services to retail electric customers in Texas and not acting merely as a broker (i.e. consultant)."

Enforcement Staff alleged, "In June 2015, Staff notified Current that Staff believed Current was acting as an aggregator and that it had not registered with the Commission. Current agreed to register as an aggregator per Staff s request before the end of June 2015. Current failed to meet this deadline, but communicated to Staff that it mailed the application for registration to the Commission in early July. After no application was received by the Commission, Staff requested an update from Current in September 2015. In response, Current provided an application for registration as an aggregator via email that was deficient on its face. As a courtesy, Staff provided a cursory review of the documents and notified Current of the insufficiencies. Staff requested another update in November 2015 and was advised by Current that an application would be filed in a matter of weeks. Again, no application was received, and Current ignored Staff s request for an update in December 2015. Staff made a final request for Current to register as an aggregator in January 2016. The Commission had not received an application from Current as of February 1, 2016."

"Current's failure to register as an aggregator is a serious violation. In failing to register, Current undermines the statutory authority of the Commission and hinders its ability to ensure Current has the competency and experience to provide the scope and nature of its proposed services.' Furthermore, registration requirements include disclosure of any agency relationships with REPs and anticipated sources of compensation for aggregation services, along with an explanation of how the aggregator plans to disclose such information to customers. By failing to register as an aggregator, the Commission is unable to ensure that Current is disclosing to its customers its agency relationships with REPs and source(s) of compensation," Enforcement Staff said

"Through representations made by Current, O&E is generally aware that Current is a small operation and Staff believes that $15,000 will be a significant penalty for a company of its size. O&E believes that the factors discussed above and the recalcitrance that Current has shown to the Commission, demonstrate that justice requires such a penalty in this matter," Enforcement Staff said

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