PSC Denies Rehearing Of Order Denying OPC Request That Utility Disclose Data On Specific Retail Supplier Billed Rates

Rehearing Order Also Serves To Clarify Prior Direction On Disclosing Number Of Low-Income Customers Served By Each Supplier

January 18, 2021

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Reporting by Paul Ring • ring@energychoicematters.com

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The District of Columbia PSC issued an order denying the Office of People's Counsel request for rehearing of the PSC's September 2020 order in which the PSC denied in part, and granted in part, OPC's request for certain billing data from Washington Gas Light related to retail supplier service to low-income customers

As stated in the PSC's September 2020 order (Order No. 20628), the PSC generally denied data requests related to the disclosure of specific supplier rates, but ordered WGL to disclose of aggregate data concerning supplier service to Residential Aid Discount ("RAD").

However, in two separate places, Order No. 20628 directed WGL to respond to two data requests that would have required WGL to disclose, by supplier name (not masked), the number of RAD customers served by each supplier.

In two instances of such direction, the PSC did not in Order No. 20628 explicitly limit the responses of WGL to only parts of these data requests, and to exclude any supplier-specific information. In a third direction, the PSC obliquely said it would, under such data responses, direct WGL to provide data pertaining to WGL customers who may or may not participate in the RAD program, but such language did not explicitly limit WGL's required response to only the subpart of such data request related to aggregate information, and not the disclosure of supplier names or RAD customer count. The PSC also broadly said that it would not require WGL to provide specific data pertaining to third-party suppliers

Specifically, as the order appears on the PSC's docket site, the PSC, on page 1 of Order No. 20628, directed WGL, "to provide responses to OPC Data Request Nos. 1-1 (f-h), 1-2 (f-h), 1-3, and 1-4."

On page 11 of Order No. 20628, the PSC directed, "We also grant OPC’s Motion to Compel WGL to provide data pertaining to WGL customers who may or may not participate in the RAD program, in response to OPC Data Request Nos. 1-3 and 1-4."

On page 13 of Order No. 20628, the PSC directed, "Washington Gas Light Company is DIRECTED to provide its responses to OPC Data Request Nos. 1-1 (f-h), 1-2 (f-h), 1-3, and 1-4 within ten days from the date of this Order."

Data Requests 1-3 and 1-4 were as follows:

• Data Request No. 1-3

Regarding residential customers that participate in the Residential Aid Discount ("RAD") program, provide data that discloses for the most recent month for which data are available, separately for each zip code associated with the bills rendered on behalf of third-party suppliers, the following:

a. the name of the supplier and total number of RAD program residential accounts billed for each third-party supplier operating in that area at each rate offered by that supplier, the total therms billed for each rate; and

b. the number of RAD program residential accounts that subscribe to natural gas supply from WGL.

• Data Request No. 1-4

Regarding residential customers that do not participate in the RAD program, please provide data that discloses, for the same month used above, for each zip code, the following:

a. the name of the supplier and total number of residential accounts that do not participate in the RAD program billed for each third-party supplier operating in that area at each rate offered by that supplier, the total therms billed for each rate; and

b. the number of residential accounts that do not participate in the RAD program that subscribe to natural gas supply from WGL.

However, in a January 14, 2021 order denying reconsideration, the PSC says it did not order WGL to respond to Data Requests 1-3, and 1-4

In the reconsideration order, the PSC said that, in prior Order No. 20628, "we denied OPC’s Motion to Compel Data Requests 1-1(a-e), 1-2(a-e), 1-3, and 1-4; however, we granted the Motion to Compel WGL to provide the aggregate data requested in Data Requests 1- 1(f-h) and 1-2(f-h)."

However, this recitation contradicts the language from Order No. 20628 published on the PSC's docket site, as quoted above

In the reconsideration order, the PSC noted that, "OPC Data Request Nos. 1-1(a-e), 1-2 (a-e), 1-3 (a), 1- 4 (a), and 1.5 to 1.8 seek information related solely to the third-party suppliers’ business transactions, and not WGL’s provision of consolidated billing service."

It appears that the intent was that prior Order No. 20628 limited the responses to Data Requests 1-3, and 1-4 to the aggregate information under subpart (b) of each data request, and that the PSC did not order responses to Data Requests 1-3 (a) and 1-4 (a). However, the PSC did not make this explicit distinction in Order No. 20628, though the PSC broadly said it was not requiring the disclosure of supplier-specific information (further clouding matters, in other instances where the PSC only granted OPC's request in part, the PSC explicitly enumerated the subparts of each DR to which WGL was ordered to respond, which was not done for 1-3 and 1-4). Although at one point the PSC did make reference to, "data pertaining to WGL customers who may or may not participate in the RAD program," the supplier-specific information requested under subpart (a) of each data request could be read as inclusive under such language.

No parties addressed this apparent discrepancy in the rehearing process

In any event, the PSC denied OPC's motion for rehearing

"OPC’s Application essentially rehashes the same arguments that we previously rejected without demonstrating an error in the reasoning that we adopted. OPC has requested data that the Commission previously ruled is beyond OPC’s statutory authority for independent investigation because the requests pertain to TPS rates. OPC argues here that the Commission made an unlawful error in its decision by once again failing to recognize that WGL’s consolidated billing transforms the TPS rates into WGL’s services or rates under D.C. Official Code § 34-804(d)(f), which would allow OPC’s investigation under D.C. Official Code § 34- 1118(c)," the PSC said

"The D.C. Court of Appeals has found that an 'OPC investigation is limited in scope to an examination of ‘the services given by, the rates charged by, and the valuation of the properties of the public utilities under the jurisdiction of the Commission.’' While it is true that the term 'service' is to be interpreted in its 'broadest and most inclusive sense', we remain unconvinced that OPC is examining a service of WGL. WGL’s third-party consolidated billing service is governed by WGL’s Commission-approved tariff, as required by D.C. Official Code § 34- 1101(b). Under its terms, the natural gas supplier 'shall transmit billing and related data to Washington Gas using XML technology or any other technological solution that allows for the transmission and use of the information in a secure and prudent manner… [a]ny arrearage or past due amount due the [supplier] will not be purchased by [WGL] and shall be collected by the [supplier] on its own behalf.' WGL is essentially providing a pass-through billing service from the suppliers to the consumers, rather than billing consumers for WGL’s own products or services. Thus, based on the record before us, OPC’s requests are beyond the scope of the services given by, the rates charged by, and the valuation of the properties of WGL. Rather, OPC is seeking current and historical billing data of the natural gas suppliers themselves, and not that of WGL. It is clear that OPC seeks to gather this information from WGL, the public utility, rather than the TPS because OPC is without authority to require billing data from third-party suppliers (non-utilities) and third-party suppliers are not obligated to provide such information to OPC. Likewise, if OPC’s access to supplier information is prohibited directly, it is also prohibited indirectly," the PSC said

"We further note the limitations set forth in the Retail Natural Gas Supplier Licensing and Consumer Protection Act of 2004, which provides the statutory authorization for the Commission to license and regulate natural gas suppliers in the District of Columbia. The original draft of the bill gave OPC access to the suppliers’ books and records, authority to file a motion to compel discovery with the Commission, and direct investigatory powers, including the ability to inspect supplier premises. However, in the final version of the statute, the language providing OPC this authority was specifically stripped from the legislation. After multiple objections during testimony, the Subcommittee Report states, '[t]he Subcommittee made changes from the original bill. We deleted subsection (d) which granted both the Commission and Office of the People's Counsel access to a natural gas supplier's books and records. The Subcommittee moved language addressing the specific investigative powers of the Commission to Section 13.' Had the Council of the District of Columbia intended to provide OPC with authority to investigate the natural gas suppliers, this statute would have remained as originally drafted," the PSC said

"Thus, we reject OPC’s contention that WGL’s role as billing agent transforms the third-party supplier rates and services into WGL rates and services subject to OPC’s investigatory authority. If OPC has concerns that third-party suppliers are violating laws or Commission rules, they may file a complaint with the Commission for an investigation. OPC’s requests for third-party supplier billing data are outside its statutory authority, and OPC has provided no compelling reason for us to reconsider our decision. OPC’s Application for Reconsideration is denied," the PSC said

Docket OPC2020-02-G

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