PUC Directs Retail Supplier to Modify Security as Result of Competitor Complaint

The New Hampshire PUC has ordered Electricity NH, LLC d/b/a E.N.H. Power to modify the guarantee previously approved by the Commission as security after a complaint filed by competitor PNE Energy Supply LLC d/b/a Power New England.

E.N.H. Power was granted an electric supplier license via secretarial letter on June 8, 2012.

On June 15, 2012, PNE Energy Supply LLC filed a petition with the PUC alleging, among other things, that the financial security provided by Noble Group Limited on behalf of E.N.H. Power was patently deficient and that the supplier license should not have been granted.

The PUC described PNE Energy Supply LLC's filings as presenting, "a rather inchoate set of requests for relief," but elected to adjudicate the matter since specific allegations of deficiencies under Commission rules, in particular, Puc 2003.03, were made.

The PUC again reviewed the E.N.H. Power security and found the security to be acceptable with two exceptions.

Specifically, PNE Energy Supply LLC noted that the Noble Group guarantee stated that, "In consideration of Beneficiary entering into a trading relationship with Noble Americas Energy Solutions LLC and Electricity N.H., LLC ..."

PNE Energy Supply LLC noted that the PUC had not entered into a "trading relationship."

The PUC agreed that the "trading relationship" formulation in the prefatory language of the Noble Group guarantee is "awkward, and may serve to confuse the basic roles of the Commission as beneficiary of the guarantee, and an independent regulatory agency with that of Noble Group as the guarantor."

The PUC directed E.N.H. Power to cure this "trading relationship" reference.

Additionally, PNE Energy Supply LLC said that the E.N.H. Power guarantee describes the obligations guaranteed as those of the retail supplier to the Commission, rather than also including the obligations from the retail supplier to its customers.

The PUC agreed that E.N.H. Power should include a reference to E.N.H. Power's obligations to customers as a part of the obligations covered by the guarantee, and ordered that such a reference be included.

The PUC directed that the changes be made by November 9.

PNE Energy Supply LLC also alleged that the guarantee did not comply with Puc 2003.03(a)(5), which requires that the financial security posted on behalf of a retail provider must have an expiration date not less than 5 years and 150 days after the date the applicant's application is filed. Although the E.N.H. Power guarantee has no expiration date, PNE Energy Supply LLC alleged that the E.N.H. Power guarantee did not meet this provision because it could be terminated upon 30 days notice.

The PUC disagreed with the assertion that the formulation of the termination clause in E.N.H. Power's Noble Group guarantee violates Puc 2003.03(a)(5). "The terms of the guarantee provide that it covers all obligations arising before it is terminated regardless of whether claims are asserted before or after termination and the term of the guarantee is indefinite. As a result, the guarantee is in effect until termination and the Commission is to receive 30 days notice prior to such termination. Numerous CEPS [retail suppliers] have been registered with similar termination clauses, and we find no basis to revoke those certifications or to require ENH to change the termination provisions of its surety," the PUC said.

The Commission also dismissed as moot a petition from PNE Energy Supply LLC regarding the use of the Electricity NH, LLC name. Electricity NH, LLC is not authorized to conduct business in New Hampshire under the trade name Electricity NH, as Electricity NH was deemed by the Secretary of State to be too similar to the New Hampshire Electric Cooperative. PNE Energy Supply LLC had alleged in June that Electricity NH, LLC had used the Electricity NH name on its website.

Since that time, Electricity NH, LLC has filed a media outreach and marketing action plan with the PUC which outlines compliance with the requirement that the Electricity NH name not be used.

Docket: DM 12-075