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Retail Supplier Says It Won't Be "Harassed" By Environmental Group Seeking Confidential Business Metrics Via Interrogatories

February 1, 2019

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Copyright 2010-19
Reporting by Paul Ring •

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In an Ohio proceeding concerning a distribution modernization plan at the FirstEnergy Ohio utilities, the Environmental Law and Policy Center has sought to compel responses by Interstate Gas Supply, Inc. (IGS), a party to the proceeding, to two interrogatories concerning certain business metrics of IGS.

A non-unanimous stipulation in the proceeding, previously reported by, would provide for, among other things, the installation of 700,000 smart meters at the FirstEnergy Ohio utilities, retail supplier access to AMI data, and the use of AMI data in calculating wholesale market settlement statements based upon THEO, PLC, and NSPL as the meters become certified. The settlement would also require the utilities to propose time of use rate options for default service customers (see details here)

The Environmental Law & Policy Center (ELPC) sought to compel IGS to respond to the following interrogatories:

• Identify all products You offer to residential customers in any utility territory as of December 1, 2018, that use 'demand side management solutions to better shape a customer’s load.' For any product listed in response ... please identify how many customers are enrolled in that product as of December 1, 2018.

• Please identify how many Ohio residential customers You provided a smart thermostat to (with or without charge) in each year since 2013. For each year, specify how many smart thermostats You provided with the cost offset by a utility rebate.

ELPC said that responses to such interrogatories is needed to address the cost-benefit analysis offered by the FirstEnergy EDCs in support of the stipulation, as well as testimony offered by IGS in support of the stipulation

IGS said that such interrogatories are not relevant to the Commission’s determination in the proceeding, and moved to deny a motion to compel responses to the interrogatories

IGS alleged that ELPC has mischaracterized its testimony and that the interrogatories are not relevant to the testimony offered by IGS

"While IGS sympathizes with ELPC’s desire to empower customers with tools that complement a more advanced distribution grid, it will not be harassed by another party about its business dealings in other states and other service territories in order for them to advance an irrelevant argument. Therefore, the Commission should deny the motion to compel," IGS said

IGS said that, "The Commission’s precedent holds that CRES provider products and prices in other utility service territories are simply not relevant. For example [in Case No. 03-93-EL-ATA], The Cincinnati Gas & Electric Company (CG&E) sought an order compelling CRES providers to provide every offer the provider made to each potential customer located in Ohio and the number of customers that accepted such offers. CG&E argued the information was relevant to the Commission’s determination of whether the generation rates it had proposed in its application were just and reasonable. The attorney examiner found that information regarding offers and actual contracts, as well as the information relating to parts of Ohio outside CG&E’s service territory 'go beyond what is relevant to this matter or reasonably calculated to lead to the discovery of admissible evidence,' and denied the motion regarding data from any territory other than CG&E."

"Here, ELPC seeks information about the number of customers enrolled in IGS’ offers and the number of thermostats provided by IGS outside of the FirstEnergy territory. ELPC alleges the information would speak to whether the cost-benefit analysis conducted by FirstEnergy is reasonable. IGS urges the Commission to find, like in the CG&E Case, that customer enrollment counts and other data related to IGS’ operations outside of FirstEnergy’s territory are not relevant to the Commission’s consideration of the Stipulation in this case. Indeed, the application and Stipulation is specifically tailored to the deployment of distribution infrastructure; therefore, there is no clear nexus between ELPC’s requested discovery and the matters to be addressed in this case," IGS said

"Specifically, IGS’ offers and the number of customers participating in IGS’ offers in other states, like Texas and Illinois, are not relevant to the Commission’s determination in this case for several reasons. First, there are significant differences between the markets in other states. Texas, for example, in addition to different market constructs, regulatory and statutory schemes, climates, and competitors, has no capacity market, belongs to different RTO/ISO, and is far more advanced with customer data access than Ohio. While Illinois is further along in its AMI roll out than Ohio, Illinois still does not reconcile CRES provider PJM wholesale energy statements based upon actual customer energy usage in each hour. The Stipulation in this case, however, proposes a path to reconciling CRES provider settlement statements based upon actual energy usage. Given the differences between these diverse markets, the structure or popularity of IGS’ offerings in other states has no bearing on the popularity of the offerings IGS may provide in the future in the FirstEnergy territory. Second, ELPC’s motion is predicated on the flawed assumption that a product offered today or in the past in one market reflects the same product that will be offered in the future in another market with different rules. That is simply not the case," IGS said

"Third, IGS is just one actor in those markets, just as IGS is one of many CRES providers in the FirstEnergy service territory. Taking IGS’ offerings in a vacuum would provide a potentially misleading and confusing reference point, which would be contrary to Ohio Rule of Evidence 403. Fourth, ELPC is active in other states served by IGS and are readily aware of the products and services available in those markets. Indeed, ELPC’s headquarters is based in Chicago—it is well aware of the time varying products available in Illinois. Its request for IGS’ specific information cannot be viewed as anything other than a fishing expedition to ascertain IGS’ proprietary information," IGS said

Regarding ELPC's argument that the interrogatories are needed due to testimony offered by IGS, IGS said that, "Contrary to ELPC’s claim, IGS has not made specific claims regarding the amount of customers that may enroll in demand side management solutions to better shape a customer’s load. Because IGS has not made these claims, FirstEnergy could not have relied on them when developing its assumptions for its cost-benefits analysis."

IGS said that, "Contrary to ELPC’s claim, IGS did not specifically identify smart thermostats as a technology it may rely on in providing demand side management solutions. IGS also did not file testimony 'asserting specific benefits from smart thermostats.'"

"Finally, allowing ELPC to compel IGS to disclose aspects of IGS’ competitive operations in other states and territories in this proceeding would set a dangerous precedent and have a chilling effect on intervenor participation," IGS said

Case No. 16-481-EL-UNC et. al.

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