D.C. PSC Dismisses Complaint Regarding Pepco Minimum Stay

The District of Columbia PSC has dismissed a complaint from Liberty Power Corporation regarding the application of the SOS minimum stay rule to a non-residential customer (FC 1097).

The complaint had been first reported in Matters

Liberty Power had won a customer (National Presbyterian Church, or NPC) previously served by Washington Gas Energy Services, and WGES submitted drop requests to return the customer's accounts to SOS at the end of the customer's contract with WGES.

Liberty submitted two enrollment requests to serve the customer's accounts, but the requests were not at least 17 days before the accounts' next respective meter reads, at which time the accounts were scheduled to return to SOS due WGES's drop requests. As a result, the accounts did return to SOS, which Pepco said triggered the minimum stay, and therefore Pepco refused to complete Liberty's enrollment requests.

More specifics on the chain of events can be found in Matters' prior story

Liberty cited Section 13.g of Pepco's tariff as requiring Pepco to complete the enrollments.

Section 13.g states, "When transferring from one competitive electricity supplier to another competitive electricity supplier, if the Company receives notice of an enrollment transaction from a competitive electricity supplier no less than seventeen (17) days before the Customer's next regularly scheduled meter read date, the Company shall transfer the Customer on the Customer's next regularly scheduled meter read date."

However, the PSC said that, "This provision governs the termination by a customer of supply from one competitive electricity supplier and the switch to another competitive electricity supplier without any gap in service."

"There was clearly a gap in service here. NPC's supplier, WGES, notified Pepco that it would end service to NPC effective June 30, 20ll for one account and July 1, 2011 for the other. Pepco specifically advised NPC that, unless NPC notified it of its enrollment with a new supplier at least 17 days before WGES ended service, Pepco would switch NPC to SOS and that, if switched, NPC would have to remain on SOS for 12 months. Pepco also advised NPC that it could, alternatively, select Market Price Service (MPS). NPC did not advise Pepco of a new supplier by the deadline or select MPS so Pepco placed NPC on SOS," the PSC said.

"Once a customer is transferred to SOS, Section 13.a requires that the customer remain on SOS for at least 12 months. Liberty ultimately notified Pepco that it was NPC's new supplier but did not do so until after NPC had been switched to SOS. To invoke Section 13.g as the basis for requiring Pepco to effectuate the switch, as Liberty suggests, ignores the earlier gap in service and effectively eviscerates the 12 month minimum stay provision under Section 13.a," the PSC said.

"Tariff provisions, like statutes, should be read together and harmonized to avoid rendering any portion meaningless. Having found that Pepco acted in accordance with its tariff, there is nothing left to do but dismiss this matter," the PSC held.

Having reached this conclusion, the PSC did not see a need to address other arguments, including Liberty's allegation that by switching NPC to SOS despite NPC's application for enrollment with Liberty, Pepco violated Section 107(c) of the Retail Electric Competition and Consumer Protection Act, which provides that, "unless the customer consents, a market participant may not change a customer's electricity supplier."

As previously noted by Matters, taken to its logical conclusion, this argument could have required retail suppliers to serve customers indefinitely, even after expiration of a contract. In other words, if Pepco were required to obtain customer consent to switch a customer to SOS, suppliers would have been compelled to serve customers, even after the end of a customer agreement and after submitting a drop request, until the customer affirmatively elected SOS or another supplier.