PUCO Approves Renewal Of NOPEC Aggregation Certificate, Not Persuaded Drop Of 500,000 Customers To SSO Unlawful

March 8, 2023

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Copyright 2010-21 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The Public Utilities Commission of Ohio approved the renewal of the electric governmental aggregation certificate of the Northeast Ohio Public Energy Council (NOPEC), stating that, "we are not persuaded by Dyngey, Hartree, or Buckeye Energy’s assertions that NOPEC’s unprecedented decision to drop over 500,000 SPP [Standard Program Price] customers to default service in response to historically high energy prices was unlawful, as they have failed to identify any statute, Supreme Court precedent, or Commission ruling in support of this claim."

PUCO's order approves NOPEC's renewal certificate and also resolves a show cause order issued to NOPEC

PUCO said, "we find that no party has raised any issues which materially dispute Staff’s determination that NOPEC has demonstrated the managerial, technical and financial capability to function as a governmental aggregator in this state, despite being provided the opportunity to conduct extensive discovery and file comments throughout this proceeding. Accordingly, we find that NOPEC’s renewal application should be approved."

"[T]he record does not justify finding that the customer drop was anti-competitive, as Dynegy suggests in its comments," PUCO said

"As to the assertions that NOPEC should have matched the SSO price for its customers, we agree that nothing contained in NOPEC’s marketing materials make such a commitment to do so during the aggregation term," PUCO said

PUCO did say that NOPEC's decision to drop the 500,000 customers to default service prior to expiration of the underlying aggregation supply agreements did not conform to NOPEC's operations and governance plan (OG Plan), but PUCO said such matter is for NOPEC's memberships, and does not sway the Commission's finding with respect to certification

PUCO said, "Ohio Adm.Code 4901:1-21-16(B) requires that the OG Plan “detail the services to be provided under the aggregation and specify all customer rights and obligations under the aggregation' and that the OG Plan 'shall be sufficiently detailed to allow customers to readily understand the services that the governmental aggregator is to provide and to compare those services to similar services provided by competitive suppliers.' Accordingly, any and all provisions for the early termination of the aggregation program should have been detailed in the OG Plan so that customers could compare the aggregation offer with offers from other competitive suppliers."

"Nonetheless, as a council of governments and a government aggregator, NOPEC is primarily accountable to its member communities and their citizens. We find it telling that, in the numerous public comments filed by member communities in this proceeding, none have alleged that NOPEC should be held to account for failure to strictly adhere to the OG Plan. Further, although failing to provide 90-day notice to its member communities, NOPEC did commit to provide notice to affected customers being returned to SSO service consistent with its August 26, 2022 motion filed in the Waiver Case. As the September 7, 2022 Show Cause Entry relates to the OG Plan and the individual member communities, we will defer to the local governments to analyze the record in this proceeding and determine if they wish to continue to work with NOPEC. Not only will local governments decide whether they want to continue using NOPEC as a viable energy aggregator, but impacted consumers will have the ability to opt out of any new aggregation program or select another marketer in the interim. Ultimately, that will be a decision for them both, and not this Commission, to make. As such, we agree with Staff that the apparent violation of the OG Plan does not warrant enforcement action or suspension of its certificate to operate as a governmental aggregator," PUCO said

PUCO said that concerns about the impact of the return of governmental aggregation customers to SSO have been addressed in a contemporaneous minimum stay order issued today (see related story today), and noted that PUCO also has an open proceeding concerning potential changes in SSO auction products and timing to further address such concerns

PUCO said that NOPEC should not rely on its existing customer list in enrolling customers for any re-start of the SPP plan, as customers may have shopped for a competitive supplier in the interim, making them ineligible for opt-out enrollment

"We note that when NOPEC restarts their SPP plan, it should reactivate customers based on a current customer eligibility list rather than its old customer list, as some customers may have signed up to receive service from another marketer and should not be automatically reenrolled into NOPEC’s SPP plan," PUCO said

PUCO expressed wariness at competing market participants engaging in, and abusing, litigation in the certification dockets of competitors (such also occurred in the Suvon/competitive FirstEnergy broker proceeding), and said that market participants should bring concerns regarding the market to the Commission in other forums

PUCO said, "Staff notes in its Staff Review and Recommendation that there are 114 marketers and 407 government aggregators currently certified to provide CRES [competitive retail electric supply] service. As we have stated before, competition should be decided in the marketplace rather than through litigation in Commission certification proceedings, and we will continue to monitor the practice of competitors intervening certification proceedings to ensure that this does not become a widespread, abusive practice and that competition is not unduly stifled by unnecessary litigation. Suvon, Finding and Order (Apr. 22, 2020) at ¶ 13. However, to the extent parties are concerned with the current state of the market and the auctions upon which these prices are procured, we encourage them to review the Commission’s Finding and Order issued in the Minimum Stay Cases, as well as continue to participate in the other forums currently ongoing which raise proposals to address these systemic issues and emphasize that the Commission will continue to find ways to improve the auction processes."

Case 00-2317-EL-GAG

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