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Retail Supplier, Muni Aggregator Say Newly Adopted Rate Notice Rules Shouldn't Apply To Opt-out Aggregations, Seek Rehearing
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Northeast Ohio Public Energy Council and NextEra Energy Services Ohio (the "Joint Applicants") sought rehearing of the PUC of Ohio's recent order adopting new rules setting forth retail supplier notice requirements for the ending of an "introductory" fixed rate, as NOPEC and NextEra argued that the final rules failed to clarify that the rules do not apply to government aggregators, or the suppliers of government aggregators
See details on the new rules here
As more fully discussed in our prior story linked above, the rules generally require that retail suppliers, upon the expiration of an introductory fixed rate, shall send two notices to customers concerning such fixed rate expiration, with the second notice required to specifically identify the initial rate to be charged upon the contract's conversion to a variable rate. The rules also require that suppliers send an annual notice to any customers served on a variable rate which previously converted from a fixed rate, with such notice informing the customer that the customer is currently subject to a variable rate
The new notices were required by statute.
NOPEC and NextEra said, "Joint Applicants did not file comments [on the proposed rule] based on their
understanding that opt-out governmental aggregators (and suppliers providing generation and
natural gas services to opt-out government aggregation programs) were not intended to be captured
by R.C. 4928.102 and 4929.221. None of the parties who submitted comments in this rulemaking proceeding mentioned governmental aggregation or the applicability of the rules to governmental
aggregators (or their suppliers)."
NOPEC and NextEra alleged that, "Despite the clear intention of the General Assembly that the statute and rules do not apply to opt-out government aggregators (or their suppliers), the Order failed to clarify that issue."
PUCO adopted separate rules for both natural gas and electricity, though the rules were largely the same
With respect to the natural gas, the new notice rule applies, "[i]f a competitive retail natural gas service supplier offers a residential customer
or non-mercantile commercial customer a contract for a fixed introductory rate[.]"
The specific new rule does not contain a definition for "competitive retail natural gas service supplier", nor did the underlying new statutory provision contain a definition for this term
NOPEC and NextEra said that another statutory provision, at R.C. Chapter
4929.01(N), is instructive.
R.C. 4929.01(N) defines "retail natural gas supplier" as one who supplies a, "competitive retail natural gas service to consumers in this state."
Such definition
expressly excludes, "a governmental aggregator as defined in division (K)(1) or (2) of this
section..."
"Because NOPEC is a governmental aggregator as defined in R.C. 4929.01(K)(1), it
is not a competitive retail natural gas supplier and is not subject to R.C. 4929.221 or the proposed
rule," NOPEC and NextEra said
NOPEC and NextEra further argued that the new rule may not be applied to a governmental aggregator's supplier to the extent that the supplier has been selected to perform certain functions as the governmental aggregator's agent
NOPEC and NextEra argued, "R.C. 4929.26(A) and Ohio Adm. Code 4901:1-29-02(G) permit a governmental
aggregator to enter into service agreements with retail natural gas suppliers to perform functions
as the governmental aggregator’s agent. NOPEC has entered into such an agreement with NextEra.
Because R.C. 4929.221 and the proposed rule do not apply to NOPEC, they necessarily cannot
apply to its agent, NextEra."
There does not appear to be a corresponding rule provision concerning a governmental aggregator designating a retail electric supplier to act as the governmental aggregator's agent (though the electric statute allows government aggregators to enter into service agreements for various functions, without using the term "agent"). PUCO's gas rule, at Ohio Adm. Code 4901:1-29-02(G), is unique in specifically stating that a, "governmental aggregator may choose to have the retail natural gas supplier perform certain functions as the governmental aggregator's agent," with no apparent companion electric rule provision using the term "agent"
However, NOPEC and NextEra argued that the new electricity rate notice rule still may not be applied to governmental aggregators or a governmental aggregator's supplier, based on different grounds
NOPEC and NextEra argued that the new statute requiring the rate notices expressly applies to retail electric providers "offering" or "entering into" a "contract" with
customers, and PUCO's authority to adopt rules for the notices is limited to such
NOPEC and NextEra noted that PUCO's electric rule largely follows the statute in this regard, with the rule applying when a customer enters into a, "contract"
NOPEC and NextEra said, "It is clear that the intent of the proposed rule (and statute) is
to target bilateral written contracts entered into directly between a CRES [retail electric] provider and a customer.
Customer enrollments in opt-out governmental aggregations are far different."
NOPEC and NextEra said, "governmental aggregators are not required to enter into contracts
with customers to enroll them in electric opt-out government aggregation programs. Opt-out
governmental aggregation is a statutorily prescribed process approved by local community leaders
and voters within participating communities. After an opt-out aggregation program is approved by
local leadership, neither NOPEC nor its supplier individually negotiates or signs written contracts
with eligible opt-out aggregation customers. Instead, enrollment occurs automatically through a comprehensive and detailed opt-out notification process set forth in the Ohio Revised Code and
Ohio Administrative Code."
"[A]n extension of the term 'contract' to include opt-out governmental aggregation
programs would be inconsistent with the Commission’s standard practice of exempting opt-out
government aggregations from the contracting requirements imposed on CRES/CRNG providers.
The Commission currently excludes opt-out governmental aggregation programs from
CRES/CRNGS rules addressing customer enrollment and consent (Ohio Adm. Code 4901:1-21-
06(C) and 4901:1-29-06(B)) and contract administration and renewals (Ohio Adm. Code 4901:1-
21-11(A) and 4901:1-29-10)," NOPEC and NextEra said
NOPEC and NextEra further cited what the Joint Applicants termed the "detailed" opt-out process, including various notices which contain similar rate information. The Joint Applicants noted that PUCO Staff reviews such opt-out notices
"Applying the new notice rules in the aggregation context would result in unnecessary
duplication and cause extreme customer confusion," NOPEC and NextEra said
NOPEC and NextEra specifically sought that the language below be added to each rule:
[gas rule]
The requirements of this rule do not apply to opt-out governmental aggregators or
the competitive retail natural gas service suppliers with which they enter into
service agreements to perform functions as the governmental aggregator’s agent
pursuant to R.C. 4929.26(A).
[electric rule]
The requirements of this rule do not apply to opt-out governmental aggregators or
the competitive retail electric service suppliers with which they enter into service
agreements to perform functions as the governmental aggregator’s agent pursuant
to R.C. 4928.20(A)
The Ohio Consumers' Counsel filed comments in support of NOPEC and NextEra's request
Case 25-710-GE-ORD
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September 19, 2025
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Copyright 2025 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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