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Regulator Denies Protective Order For Retail Supplier Data Included In Discovery

November 27, 2018

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The Connecticut PURA has denied a protective order, sought by retail suppliers, concerning responses to various interrogatories expounded on the electric distribution companies by the Office of Consumer Counsel in a proceeding reviewing whether all hardship customers should be returned to default service.

As first reported by EnergyChoiceMatters.com, the Connecticut PURA opened a Docket 18-06-02 for a review of the feasibility, costs, and benefits of placing certain customers on standard service pursuant to Conn. Gen. Stat. § 16-245o(m). The General Statutes of Connecticut §16-245o(m) permits the Public Utilities Regulatory Authority (Authority) to initiate a docket to review the feasibility, costs and benefits of placing on standard service all customers of all electric suppliers (1) who are hardship cases for purpose of subdivision (3) of subsection (b) of section 16-262c, (2) having moneys due and owing deducted from such customer bills by the electric distribution company pursuant to subdivision (4) of subsection (b) of section 16-262c, (3) receiving other financial assistance from an electric distribution company, or (4) who are otherwise protected by law from shutoff of electricity services. The statute permits the Authority in a final decision to order all such customers to be placed on standard service

EnergyChoiceMatters.com was first to report that PURA, in opening the case, said it would compare the amount that hardship and other customers covered under § 16-245o(m) have paid under retail supply versus the amount the same accounts would have paid if on standard service

As previously reported, retail suppliers had sought confidential status for responses that contained, among other data, the following: (a) the name of the competitive supplier; (b) the total kWh billed for each supply rate (i.e., each unique rate charged by the competitive supplier); (c) the supply rate charged; (d) the rate class for each supply rate; (e) the total dollar amount billed (before application of any applicable discounts) for each supply rate; (f) the total number of accounts billed for each supply rate; and (g) the total number of new accounts billed for each supply rate

Additionally, suppliers had sought protected status for data that discloses, for each unique combination of municipality, zip code, and rate class, the following: (a) the name of the supplier and total number of non-hardship residential accounts billed for each competitive supplier operating in that area at each rate offered by that supplier, the total kWh billed for each rate, and the number of new residential accounts billed. Additional interrogatories seek similar information for various customer groups and time periods

Additionally, suppliers had sought protected status for data that would list separately by supplier: (a) total number of accounts served; (b) total dollars billed; and (c) total kWh billed

Additionally, suppliers had sought protected status for data that would list, separately by supplier (including the EDCs), the churn in the residential customers for whom the EDC renders bills, where churn is defined as the percent of customers that change their supplier each month

PURA denied the sought protective order, finding that the information is similar to information that PURA has previously said shall be made public to assist customers in making informed decisions when choosing an electric supplier, such as customer count and price information which is currently made public.

"Furthermore, the Authority has held in its ruling on protective orders that the number of kilowatt hours sold does not warrant protection for the same reasons. As a result, supply rates, rate classes, total numbers of accounts, and total number of kilowatt hours sold cannot be considered confidential information or trade secrets," PURA said

"Likewise, the Authority previously held, 'With respect to the data regarding the number of customers by zip code and municipality, the Authority finds that this information does not constitute a company trade secret or commercially sensitive or proprietary information which is exempt from disclosure under Conn. Gen. Stat. §1-210(b)(5)(A) or (B).' See Docket No. 06-12-07RE07, PURA Ruling on Motion 6, dated January 24, 2018, p. 4. As a result, such information does not warrant protection," PURA said

"As noted in Docket No. 06-12-07RE07, the Authority has refused to protect the number of customers and the number of kilowatt hours billed, holding that 'this is the type of customer count and price information that the legislature intended be available for its review and public dissemination as part of its periodic review of the state of competition.' See Docket No. 06-12-07RE07, PURA Ruling on Motion 7, dated January 31, 2018. Once the number of customers, the customer rate, and number of kilowatt hours billed for each customer is made public, elementary mathematics allows anyone to use that data to determine the total amount billed. Such information cannot qualify as a trade secret or proprietary or sensitive commercial information subject to protection under Conn. Gen. Stat. §1-210(b)(5)(A) or (B)," PURA said

"The Authority has noted in its previous rulings on motions for protective orders that certain information does not warrant protection because it is information the legislature wished released to the public. Information regarding the number of residential assistance and hardship accounts is such information. The legislature intended for the Authority to conduct an investigation to determine if hardship accounts should be returned to standard service. The legislature clearly did not intend for the Authority to conduct such an investigation in secret. Information regarding the number of residential assistance and hardship accounts goes to the heart of the current docket and is the type of information the legislature intended to be publicly available. Moreover, if interrogatories regarding the number of residential assistance and hardship customers show 'the types of accounts each Electric Supplier has had the most success in obtaining,' revelation that suppliers are successfully targeting hardship customers is exactly the type of information about suppliers’ actions that should be released to the public. Motion 6, p. 12. It is difficult to conjure a scenario in which revealing the number of hardship customers a supplier enrolls provides a roadmap to a business model worthy of protection from public scrutiny pursuant to Conn. Gen. Stat. §1-210(b)(5)(A) or (B)," PURA said

PURA reached such conclusions on the merits of the arguments in response to a request for protected status from Choice Energy, LLC. RESA had also sought a protective order for the same reasons, and PURA rejected such request on the same grounds, but further said that, "the Authority questions whether RESA has the ability to bring this motion on behalf of all suppliers it represents."

"As RESA acknowledges in its first two footnotes on page 1 of its Motion, the Motion 'may not represent the views of any particular member' of RESA and the responses may vary according to supplier. Some of RESA’s members may be private companies and some may be public, each having differing standards regarding what information is required by public filings. As a result, RESA finds itself in the position of not even knowing which interrogatories deserve protection for which suppliers," PURA said

While RESA presented an affidavit in support of its motion from its Executive Director PURA said that RESA's Executive Director "cannot testify to the efforts each supplier undertakes to protect information, nor to the degree to which any particular supplier protects the specific information contained in any given interrogatory. Because [RESA's Executive Director] presents no affirmative showing of personal knowledge regarding the individual suppliers’ treatment of the purportedly confidential information."

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