Retail Suppliers Seek Confirmation Dayton Power & Light Will Continue Supplier Consolidated Billing Pilot Under ESP Withdrawal

December 5, 2019

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Reporting by Paul Ring • ring@energychoicematters.com

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The Retail Energy Supply Association filed comments at the Public Utilities Commission of Ohio requesting that Dayton Power & Light clarify and confirm that it will continue to meet various commitments, including those related to a supplier consolidated billing pilot, under a stipulation DP&L entered into with several parties in its electric security plan (ESP) III proceeding, notwithstanding DP&L's withdrawal of ESP III and filing of new tariffs.

As previously reported by EnergyChoiceMatters.com, DP&L filed to withdraw ESP III, and filed tariffs based, in part, on its most recently approved ESP (ESP I) after PUCO struck from ESP a Distribution Modernization Rider (DMR). See our prior story here for more background

RESA said that the stipulation mandates compliance with DP&L’s commitments under the Stipulation that are not linked to the DMR or the ESP III term

"As a condition of the Stipulation, DP&L agreed to not withdraw from the Stipulation unless it (a) sought rehearing of a modification of the Stipulation, (b) if rehearing is denied, to try and negotiate an outcome that substantially satisfies the intent of the Stipulation and only if that fails, (c) file a notice to terminate and withdraw from the Stipulation (which would render the Stipulation null and void)," RESA said

"On November 21, 2019, the Commission issued a Supplemental Opinion and Order that modified the Stipulation to remove DP&L’s Distribution Modification Rider. Rather than follow the Stipulation’s process (rehearing, negotiation, and only then withdrawing), DP&L filed a notice on November 26, 2019 withdrawing its application in Case No. 16-395-EL-SSO but not withdrawing its applications in Case No. 16-393-EL-ATA and 16- 397-EL-AAM. DP&L also separately filed proposed tariffs in Case Nos. 08-1094-EL-SSO, Case No. 08-1095-EL-ATA, Case No. 08-1096-EL-AAM and Case No. 08-1097-EL-UNC consisting of tariff sheets that allegedly were in place under the ESP I and leaving in place tariff sheets for riders that were established through the Stipulation in the ESP III proceeding. DP&L did not explain why it is continuing the provisions of the Stipulation in its tariff, and is treating the Stipulation as remaining in effect for some, but not all, provisions," RESA said

"DP&L should clarify and confirm that it will continue to meet its other commitments under the Stipulation that are not linked to the DMR or the ESP III term, including the Competitive Retail Market Enhancements in Section IX of the Stipulation," RESA said

RESA said that, "RESA negotiated tariff changes through the Stipulation and those tariff changes are currently in effect (Stipulation Section IX(3), tariff sheet G8) and are not being modified under DP&L’s new proposed tariffs."

"DP&L should ... clarify and confirm that it will honor its agreement in the Stipulation to implement a two-year pilot supplier consolidated billing program. The purpose of the pilot as stated at Section IX(2) of the Stipulation is to provide the industry with data and information on the practicality of a supplier consolidated billing implementation in the Ohio electric choice market. The pilot program is limited in scope and required DP&L to meet with participating CRES providers to establish the methodology for the pilot no later than 12-months following a “final Commission order approving a Stipulation in these proceedings.” All of these commitments under Section IX(2) of the Stipulation are not linked to the DMR or the ESP III term, and, importantly, advance State policies under Section 4928.02 of the Revised Code. Given that the Stipulation remains in effect, these commitments may and should continue uninterrupted," RESA said

RESA said that commitments, among all parties, in the stipulation relating to the offering of non-commodity billing on a customer’s utility bill in all EDU service territories should continue

RESA also said that existing retail supplier contracts and pricing, which relied on prior tariffs and/or transmission rate cost recovery and allocation, should not be disturbed by DP&L's withdrawal

"RESA submits that regardless of whether the Commission accepts or rejects DP&L’s proposed tariff filings, any action taken by the Commission should ensure certainty in the competitive retail marketplace and avoid any interruptions in the competitive retail marketplace. Providing certainty in the retail markets is very important to all customers, whether shopping or not shopping. With DP&L’s ESP III well into its term (it started in October 2017), competitive retail electric service (“CRES”) providers have entered into contracts and relationships with customers based on DP&L’s ESP III tariffs, including tariffs relating to the allocation of transmission charges. Additionally, default service customers are being served based on wholesale supply auctions provided by CRES suppliers. Tariff changes that negatively impact contracts and relationships will lead to customer confusion and unreasonably interfere with existing contracts and pricing components within those contracts. Such changes as well as changes to the default service auctions should be avoided to ensure that certainty in the competitive retail marketplace remains in place until DP&L submits an application for a new standard service offer. In addition, as the Commission found in its August 26, 2018 Finding and Order, DP&L’s TCRR-N and TCRR-B transmission riders should not change from what was in effect prior to October 20, 2017," RESA said

Industrial Energy Users-Ohio argued that, notwithstanding any statutory authority allowing utilities to generally withdraw an ESP modified by PUCO, DP&L may not withdraw the ESP under the terms of the stipulation it entered into with various parties, absent first complying with provisions in the stipulation governing any withdrawal, which IEU-Ohio alleged has not occurred

"DP&L’s attempt to withdraw is premature because the Stipulation binds DP&L to a specific process to withdraw its ESP III and DP&L has not complied with those requirements," IEU-Ohio said

"DP&L agreed, pursuant to the Commission-approved Stipulation, to limit any right to withdraw its ESP. The Stipulation requires DP&L and any other Signatory Party to the Stipulation to enter into good faith negotiations prior to withdrawing. The Stipulation also sets forth two paths to withdraw: one based on a Commission modification prior to an appeal and one based on a Commission modification mandated by the Ohio Supreme and ordered by the Commission in an Order on Remand. DP&L was required to follow the former path which requires DP&L to seek rehearing of the Commission’s supplemental Order prior to any request to withdraw the ESP III. DP&L’s Notice is thus premature and should be denied," IEU-Ohio said

"Whatever right DP&L may have had pursuant to R.C. 4928.143(C)(2)(b) to withdraw its ESP III upon the Commission rejecting the DMR in the Supplemental Order, DP&L agreed to limit its right by agreement. That is, as part of the bargained-for exchange reflected in the Stipulation, DP&L agreed it would have to follow certain procedures before it could exercise its statutory right to withdraw an ESP. DP&L must be held to the procedures it agreed upon," IEU-Ohio said

IGS Energy was among a group of stakeholders, which also included the Ohio Consumers' Counsel and large customer representatives, argued that DP&L's withdrawal is not permissible on various grounds, including arguments similar to those raised by IEU-Ohio. The group also argued that DP&L's filing fails because statute only allows withdrawal of an ESP if PUCO modifies an "application", not a "settlement" (as was the case here), and because DP&L has not filed tariffs to return to the most recent "standard offer" (as opposed to the most recent ESP)

Case No. 16-395-EL-SSO et al.

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