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Utility Says "Broker" Has Sought Utility Customer Lists Without Seeking To Complete EDI Testing, Utility Suggests Broker May Seek To Use Customer List For Another Purpose, Seeks PUC Guidance

November 7, 2017

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Copyright 2010-17
Reporting by Paul Ring •

Vectren Energy Delivery of Ohio (VEDO) has filed a "self-complaint" at the Public Utility Commission of Ohio seeking that PUCO affirm Vectren's decision to deny the provision of an eligible customer list to an entity which, as alleged by Vectren, identified itself as a broker but is certified by PUCO as a competitive retail natural gas (CRNG) supplier but has declined to submit an application to serve customers at Vectren

The self-complaint pertains to the terms and conditions under which VEDO makes available lists of customers eligible to participate in its Choice program, and whether such a list must be disclosed to a competitive retail natural gas (CRNG) supplier that is unwilling or unable to meet the qualifications imposed under VEDO’s tariffs and related agreements, "in particular where VEDO has reason to believe that the list may be used for purposes other than providing CRNG service," Vectren said

Vectren alleged that, beginning on or around late February 2017, VEDO was approached by an entity identifying itself as a "broker," which had been certified by the Commission as a CRNG supplier but had not been approved by VEDO for participation in its Choice Program.

"The identity of the broker is not pertinent to this self-complaint and VEDO is not providing it here, other than to note that the entity is not affiliated in any way with VEDO," Vectren said

Vectren alleged that, "The broker requested VEDO to provide it with an eligible-customer list. VEDO informed the broker that the list was only provided to entities that were approved to provide Choice service under its tariffs and that if the broker wished to obtain a copy of the list, it would be required to complete VEDO’s application process."

Vectren alleged that the broker stated its belief that entities that have been certified by the Commission to provide CRNG service were entitled to the eligible-customer list regardless of whether they had been approved by the natural gas company to provide service.

Vectren alleged that the broker specifically refused to undergo EDI testing, "which would demonstrate that the broker was able to engage in customer transactions and provide service under VEDO’s Choice program."

"The broker’s unwillingness to undergo EDI testing further suggested that the broker did not intend to engage in the provision of retail natural gas service to VEDO’s customers but may have intended to use the information for another purpose," Vectren alleged

Under Ohio Adm. Code 4901:1-29-13(C), "Natural gas companies shall make eligible-customer lists available to certified retail natural gas suppliers and governmental aggregators via electronic media."

Ohio Adm. Code 4901:1-29-09(C)(4) provides, "A natural gas company shall . . . . [p]rovide customer-specific information to retail natural gas suppliers and governmental aggregators on a comparable and nondiscriminatory basis as prescribed in paragraph (C) of rule 4901:1-29-13 of the Administrative Code..."

Vectren said that the "comparable and nondiscriminatory basis" on which VEDO makes available its eligible customer list is set forth in its tariffs, which have been reviewed and approved by the Commission.

Under its tariffs, VEDO makes available a list of eligible customers only to certain entities and only under the following terms and conditions: "Company shall make available to PUCO-certified Retail Natural Gas Suppliers approved by the Company for participation in the Company’s Choice Program an electronic list of Customers eligible for participation in the Program, as defined in Section 4929.22 (B) of the Revised Code. The fee for such eligible customer list is described in Rate 385."

"Under this provision, to receive the list, an entity must satisfy two criteria: it must be (a) 'PUCO-certified' and (b) 'approved by the Company' to participate in the Choice program," Vectren said

Vectren further said that its tariff outlines several standards which suppliers must meet to participate in the Vectren choice program

Notably, VEDO’s tariffs require CRNG suppliers to actually engage in the business of providing Choice service to customers. CRNG suppliers must, "achieve and maintain a minimum level of at least 100 Customers or 10,000 Mcf annual projected Customer sales per Pool."

Additionally, to enroll a customer, CRNG suppliers must, "provide Company with an electronic file in a format specified by Company." To ensure that service can be provided to customers and CRNG suppliers in an efficient and cost-effective manner, VEDO requires all Choice enrollments, drops, and related billing to take place by way of electronic data interchange or interface (EDI).

Additionally, CRNG suppliers must, "sign a Choice Supplier Pooling Agreement" with VEDO. The Pooling Agreement requires the CRNG supplier to, "acknowledge that VEDO’s Choice Program is administered pursuant to VEDO’s business procedures (VEDO Operating and Billing Practices), which VEDO may amend from time to time with thirty (30) days advance notice via posting by VEDO on its website, and the most recent version of which is available from VEDO on its website." The Pooling Agreement also contemplates that the CRNG supplier must use EDI.

"In sum, under VEDO’s tariffs, CRNG suppliers who wish to participate in VEDO’s Choice Program must (a) actually engage in providing service, (b) conduct all enrollments, drops, and billing using EDI, and (c) complete EDI testing before enrolling any customers," Vectren said

Vectren further noted that CRNG suppliers are subject to certain limitations on the use of customer information. Under Ohio Adm. Code 4901:1-29-09(A)(1), subject to certain exceptions, "A retail natural gas supplier . . . (and/or its agent) shall . . . [n]ot disclose or use . . . any customer information for any purpose other than for operation, maintenance, assignment, and transfer of a customer’s account . . . ."

VEDO believes that the eligible-customer list constitutes a form of "customer information" that is subject to the Commission’s rules.

Vectren said that the broker alleged that VEDO’s tariffs and related requirements were inconsistent with the Commission’s rules, insofar as the tariffs imposed requirements for provision of the customer list (EDI testing) not specifically imposed by rule. Vectren said that the broker also asserted that VEDO’s failure to provide the list violated Commission rules and subjected VEDO to civil forfeitures of up to $10,000 for each violation and possible restitution.

Vectren, "believes that the broker’s legal analysis is incorrect and incomplete." The fact that VEDO’s tariffs contain provisions in addition to the rules does not by itself establish inconsistency with the rules, Vectren said

Vectren further said that, "In addition, the Commission’s rules expressly mandate that VEDO’s tariffs contain 'provisions governing the relationship' with the CRNG supplier in addition to those imposed by rule."

"VEDO’s tariffs must include provisions addressing the very matter challenged by the broker as unauthorized by rule. See Ohio Adm. Code 4901:1-29-13(A)(6) (setting forth 'a minimum' of 16 categories that utility tariffs 'shall address,' including '[c]ustomer enrollment information exchange')," Vectren said

"In addition, the broker’s analysis also fails to account for the restrictions on use of customer information established by the Commission’s rules. These rules explicitly require such information only be used in the provision of service to customers, see Ohio Adm. Code 4901:1- 29-09(A)(1), and thus implicitly prohibit any use by a CRNG supplier that does not intend to provide service," Vectren said

"Nevertheless, VEDO recognizes that the resolution of such issues ultimately lies within the Commission’s jurisdiction. Accordingly, VEDO requests that the Commission consider this self-complaint and provide guidance on VEDO’s legal obligations in this situation, particularly concerning the following questions," Vectren said

VEDO believes that the answer to all three questions below is in the negative, but VEDO will abide by whatever decision the Commission reaches:

a. Whether a natural gas company should provide an eligible-customer list to an entity certified by the Commission to provide CRNG service but unwilling or unable to obtain the natural gas company’s approval to actually provide CRNG service.

b. Whether a customer list may permissibly be provided to or used by a CRNG supplier that is not providing and does not intend to provide service to customers.

c. Whether a natural gas company may disregard its tariff provisions if a CRNG supplier asserts that a given tariff provision is inconsistent with the Commission’s rules.

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