PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CH. 54 ]
[42 Pa.B. 796]
[Saturday, February 11, 2012][ L-2010-2160942 ]
Code of Conduct The Pennsylvania Public Utility Commission (Commission), on August 25, 2011, adopted a proposed rulemaking order which amends the Commission's existing regulations regarding competitive safeguards to be consistent with 66 Pa.C.S. Chapter 28 (relating to Electricity Generation Customer Choice and Competition Act).
Executive Summary
On March 18, 2010, the Public Utility Commission (PUC) issued an Advance Notice of Proposed Rulemaking (ANOPR) seeking input from the regulated community, statutory advocates, and interested parties on revisions to the Code of Conduct regulations applicable to electric distribution companies and electric generation suppliers engaged in the retail electricity market within the Commonwealth of Pennsylvania. Numerous parties provided comments in response to the ANOPR.
Pursuant to a second Motion adopted at the Public Meeting of February 24, 2011, the PUC identified additional safeguards for a properly functioning competitive market to be included in this rulemaking. The additional safeguards, along with the received comments pursuant to the ANOPR, were taken into consideration in developing and drafting the regulation. The PUC issued the proposed regulation on August 25, 2011.
The proposed revisions to the regulation are designed to foster the continued development of Pennsylvania's retail electricity competitive market. Specifically, the regulation accomplishes this goal by providing safeguards against cross subsidization between electric distribution companies and their affiliated electric generation suppliers, minimizing customer confusion resulting from the use of similar names, symbols, and marks, and adding additional transparency to shared corporate services between the electric distribution companies and their affiliated electric generation suppliers.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 27, 2012, the Commission submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees. In addition to submitting the proposed rulemaking, the Commission provided IRRC and will provide the Committees with a copy of a detailed Regulatory Analysis Form. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Meeting held
August 25, 2011Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; Wayne E. Gardner; James H. Cawley; Pamela A. Witmer
Revisions to Code of Conduct at 52 Pa. Code § 54.122; Doc. No. L-2010-2160942
Proposed Rulemaking Order The Commission is responsible for implementing and enforcing the provisions of the Electricity Generation Customer Choice and Competition Act (the ''Act''), 66 Pa.C.S. § 2801, et seq. The Commission has adopted customer choice regulations necessary to the performance of its duties under the Act. 52 Pa. Code § 54.1, et seq. Pursuant to a Motion adopted at the Public Meeting of February 25, 2010, the Commission announced it would be reviewing the Competitive Safeguards subchapter of its customer choice rules. 52 Pa. Code §§ 54.121—123. Subsequently, the Commission issued an Advance Notice of Proposed Rulemaking Order (''ANOPR'') identifying the scope of the proceeding and soliciting initial comments. Pursuant to a second Motion adopted at the Public Meeting of February 24, 2011, the Commission identified additional safeguards for a properly functioning competitive market to be included in this rulemaking. The Commission now proposes the attached revisions to the Competitive Safeguards subchapter for public comment. After receipt and review of public comments, the Commission will issue a final rulemaking for approval consistent with the regulatory review process.
Background
The Act, which became effective January 1, 1997, provides retail electric customers subject to the Commission's jurisdiction with the option to obtain their generation service from an electric generation supplier (''EGS''), as opposed to the incumbent electric distribution company (''EDC''). EGSs must be licensed by the Commission before offering service. EDCs must provide EGSs with direct access, which means that EGSs can use the EDC's transmission and distribution system on a nondiscriminatory basis at rates, terms and conditions of service comparable to the EDC's own use of the system. 66 Pa.C.S. § 2804(2); definition of ''direct access'', 66 Pa.C.S. § 2803.
The emphasis on direct access was a deliberate choice by the General Assembly. There was a genuine concern on the part of Pennsylvania and other states adopting retail choice laws that incumbent utilities would directly or indirectly favor affiliated EGSs, to the detriment of robust retail electric competition. Such anti-competitive practices might take form in the sharing of customer information, the linking of regulated services to non-competitive services, financial subsidy of an affiliate through the use of EDC staff and facilities, etc. Accordingly, Pennsylvania and other jurisdictions with retail choice laws typically included provisions prohibiting such conduct. Public utility commissions in nearly all retail choice jurisdictions have adopted rules intended to safeguard the competitive marketplace.
The Pennsylvania Public Utility Commission adopted competitive safeguards, which became effective on July 8, 2000. The rules have not been subject to amendment. For the reasons identified in the ANOPR, the Commission concluded that it would be appropriate to consider revisions to reflect changes in the markets, technology and law subsequent to the passage of the Competition Act.
The following parties provided comments in response to the ANOPR: the Pennsylvania Office of Consumer Advocate (''OCA''), the Energy Association of Pennsylvania (''EAP''), the National Energy Marketers Association (''NEM''), the Pennsylvania Energy Marketers Coalition (''PEMC''), West Penn Power Company (''West Penn''), and the joint comments of the Metropolitan Edison Company, Pennsylvania Electric Company, and the Pennsylvania Power Company (''FirstEnergy Companies'').
Discussion
A. Summary of the Comments
The previously-referenced parties offered a number of comments. Generally, these parties felt that the existing code of conduct was effective. However, the following specific revisions to the existing Code of Conduct were suggested:
• Both OCA and the FirstEnergy Companies recommended that the Commission revise Section 54.122(9) to incorporate use of the Commission's website and electronic mail as a means to share current lists of suppliers.
• FirstEnergy recommended adding a provision that EGSs may not represent themselves as being an employee of an EDC through attire or actions.
• NEM recommended the addition of prohibitions against EDCs financially subsidizing affiliated EGSs, or from transferring the regulated assets or property of an EDC to an affiliated EGS at less than market value.
• The Energy Association proposed two changes. First, that the Code should prohibit EDCs and EGSs from using company logos in a deceptive manner. Second, that EGSs should enter into licensing agreements with EDCs before using any of their intellectual property.
• PEMC, like the Energy Association, commented on the proper use of logos. It recommended that EGS representatives involved in door-to-door sales be required to have identification, which correctly identifies the name and logo of the company.
B. Review of Other Retail Choice States
Nearly every state that adopted retail choice models has regulations governing the relationships between EDCs and affiliated EGSs. Commission staff has undertaken a review of each jurisdiction's code for elements that should be adopted in Pennsylvania. In particular, the Commission considered the rules adopted by the states of Texas, Illinois and New Jersey in crafting this proposed rulemaking. These jurisdictions have very comprehensive regulations on this subject. Some of the comments we received included the adoption of elements present in the codes of conduct in effect in these states.
C. Proposed Revisions
The Commission proposes to realign the regulation according to subject matter for a more convenient use. We propose to divide the regulation into the following six subject matter categories: (a) non-discrimination requirements; (b) customer requests for information; (c) prohibited transactions and activities; (d) accounting and training requirements; (e) dispute resolution procedures; and (f) penalties. As a result of this streamlining, we had to renumber most subsections of the regulation. The following summary provides information on each subsection.
54.122.(1)(i)
This is subsection (1) of the current regulation. It has been renumbered but not revised substantively.
54.122.(1)(ii)
This is subsection (2) of the current regulation. It has been renumbered but not revised substantively.
54.122.(1)(iii)
This is subsection (5) of the current regulation. It has been renumbered but not revised substantively.
54.122.(1)(iv)
This is subsection (6) of the current regulation. It has been renumbered but not revised substantively.
54.122.(1)(v)
This is subsection (7) of the current regulation. It has been renumbered but not revised substantively.
54.122.(2)(i)
This is subsection (9) of the current regulation. It has been modified consistent with some of the received comments. EDC representatives are now required to refer customers to the Commission's retail choice website and offer to provide customers with a list of the current suppliers. EDC representatives may not rank or recommend particular suppliers regardless of their affiliate status.
54.122.(2)(ii)
This is subsection (10) of the current regulation. It has been modified to exclude references to affiliate EGSs using the EDC's name and logo as part of the EGS's trade name or corporate appearance for marketing and communication purposes. The limitations on the EDC's name, logo, and other identifying elements by all EGSs are now addressed in 54.122.(3)(iv).
54.122.(3)(i)
At NEM's suggestion, a new subsection has been added making express the prohibition against an EDC financially subsidizing an affiliated EGS. No costs associated with an affiliated EGS should be recovered in the EDC's regulated rates.
54.122. (3)(ii)
Also at NEM's suggestion, this subsection is being proposed to bar the transfer of any regulated EDC assets to its affiliated EGS at less than market value.
54.122.(3)(iii)
This subsection is proposed pursuant to the Commission's Motion aimed at preventing direct or indirect cross-subsidies, like the use of the affiliate EDC for credit support for affiliated EGS sales.
54.122.(3)(iv)
This subsection is proposed to address comments offered by the Energy Association. It requires an EGS to enter into a licensing agreement with an EDC before using the EDC's service-mark or trademark and to feature a prominent disclaimer. The disclaimer will state that the EGS is not the same company as the EDC and that a customer need not buy the EGS's services or products in order to continue receiving services from the EDC. By requiring a disclaimer, the Commission attempts to minimize customer confusion and eliminate any deceptive practices that may occur when an EGS uses the EDC's service-mark or trademark.
54.122.(3)(v)
This new subsection was added pursuant to the Commission's Motion to examine whether EDC-affiliated EGSs should change their names so as to be dissimilar from both the EDC affiliate and the corporate parent. We have found that this requirement varies in different jurisdictions. We propose that both the affiliated and non-affiliated EGSs be required to change their names to be dissimilar to the EDC.
54.122.(3)(vi)
This new subsection is proposed to address comments of the Energy Association and PEMC. It prohibits the EGS representatives from falsely claiming to represent the EDC of the service territory.1
54.122.(3)(vii)
This new subsection was added pursuant to the Commission's Motion to prohibit joint marketing, sales, and promotional activities by EDCs and affiliate EGSs. This prohibition is common in many retail choice jurisdictions.
54.122.(3)(viii)
This is subsection (3) of the current regulation. It has been renumbered but not revised substantively.
54.122.(3)(ix)
This new subsection requires that EGSs and EDCs do not share office space and instead occupy different buildings. This limitation is common in other jurisdictions.
54.122.(4)(i)
This new subsection requires an EDC and affiliated EGS to maintain separate accounting records. This is a feature of codes of conduct in other jurisdictions, such as Illinois, and we propose to adopt it in Pennsylvania.
54.122.(4)(ii)
Several jurisdictions, such as Maryland and Ohio, require EDCs to maintain, in a single document, a description of the relationship between it and any affiliated EGSs. This document has been described as a ''cost allocation manual'' in these two states. It allows the appropriate regulatory body to efficiently verify and audit the utility's compliance with the code of conduct. We will require the same in Pennsylvania. If part of the final rule, the Commission will establish a docket at which EDCs shall file their cost allocation manuals. The cost allocation manual will be reviewed as part of the audit and management efficiency investigation provisions in § 516 of the Public Utility Code.
54.122.(4)(iii)
This is subsection (11) of the current regulation. It has been revised to provide additional clarification on the functional separation requirements for employees of the EDC and affiliated EGSs. It states that EDCs and affiliated EGSs shall not share employees or services, except for corporate support services, emergency services, or tariff services.
54.122.(4)(iv)
This is subsection (8) of the current regulation. It has been renumbered but not revised substantively.
54.122.(5)(i)
This is subsection (4) of the current regulation. It has been renumbered but not revised substantively.
54.122.(6)(i)
Most jurisdictions have provisions for civil penalties for non-compliance. Here we have provided a reference to 66 Pa.C.S. § 3301, which allows the Commission to assess a civil penalty of up to $1,000 a day for non-compliance with a regulation.
Conclusion
Accordingly, under 66 Pa. C.S. § 501, 2807(e), Section 2804(2) of the Electricity Generation Customer Choice and Competition Act, 66 Pa.C.S. § 2804(2), the Commonwealth Documents Law, 45 P. S. §§ 1201 et seq., and the regulations promulgated hereunder at 1 Pa. Code §§ 7.1, 7.2, and 7.5, the Commission proposes revisions to its regulations pertaining to the electricity generation customer choice, and its provisions for competitive safeguards, as noted and set forth in Annex A; Therefore,
It Is Ordered That:
1. The proposed rulemaking at Docket L-2010-2160942 will consider the regulations set forth in Annex A.
2. The Secretary shall submit this order and Annex A to the Office of Attorney General for approval as to legality.
3. The Secretary shall submit this order and Annex A to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit this order and Annex A for review by the designated standing committees of both houses of the General Assembly, and for review by the Independent Regulatory Review Commission.
5. The Secretary shall deposit this order and Annex A with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
6. An original and 15 copies of any written comments referencing the docket number of the proposed rulemaking shall be submitted within 45 days of publication in the Pennsylvania Bulletin to the Pennsylvania Public Utility Commission, Attn.: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265.
7. The contact person for legal issues related to this proposed rulemaking is Aspassia Staevska, Assistant Counsel, Law Bureau, (717) 425-7403, astaevska@pa.gov. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri Delbiondo, Regulatory Coordinator, Law Bureau, (717) 772-4597.
ROSEMARY CHIAVETTA,
SecretaryFiscal Note: 57-287. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 54. ELECTRICITY GENERATION CUSTOMER CHOICE
Subchapter E. COMPETITIVE SAFEGUARDS § 54.122. Code of conduct.
Electric generation suppliers and electric distribution companies shall comply with the following requirements:
[(1) An electric distribution company may not give an electric generation supplier, including without limitation, its affiliate or division, any preference or advantage over any other electric generation supplier in processing a request by a distribution company customer for retail generation supply service.
(2) Subject to customer privacy or confidentiality constraints, an electric distribution company may not give an electric generation supplier, including without limitation its affiliate or division, any preference or advantage in the dissemination or disclosure of customer information and any dissemination or disclosure shall occur at the same time and in an equal and nondiscriminatory manner. ''Customer information'' means all information pertaining to retail electric customer identity and current and future retail electric customer usage patterns, including appliance usage patterns, service requirements or service facilities.
(3) An electric distribution company or electric generation supplier may not engage in false or deceptive advertising to customers with respect to the retail supply of electricity in this Commonwealth.
(4) Each electric distribution company shall adopt the following dispute resolution procedures to address alleged violations of this section:
(i) Regarding any dispute between an electric distribution company or a related supplier, or both, and an electric generation supplier (each individually referred to as a ''party'' and collectively referred to as ''parties''), alleging a violation of any of the provisions of this section, the electric generation supplier shall provide the electric distribution company or related supplier, or both, as applicable, a written notice of dispute which includes the names of the parties and customers, if any involved and a brief description of the matters in dispute.
(ii) Within 5 days of receipt of the notice by the electric distribution company or related supplier, or both, a designated senior representative of each of the parties shall attempt to resolve the dispute on an informal basis.
(iii) If the designated representatives are unable to resolve the dispute by mutual agreement within 30 days of the referral, the dispute shall be referred for mediation through the Commission's Office of Administrative Law Judge. A party may request mediation prior to that time if it appears that informal resolution is not productive.
(iv) If mediation is not successful, the matter shall be converted to a formal proceeding before a Commission administrative law judge, and the prosecuting parties shall be directed to file a formal pleading in the nature of a complaint, petition or other appropriate pleading with the Commission within 30 days or the matter will be dismissed for lack of prosecution. Any party may file a complaint, petition or other appropriate pleading concerning the dispute under any relevant provision of 66 Pa.C.S. (relating to the Public Utility Code).
(5) An electric distribution company may not illegally tie the provision of any electric distribution service within the jurisdiction of the Commission to one of the following:
(i) The purchase, lease or use of any other goods or services offered by the electric distribution company or its affiliates.
(ii) A direct or indirect commitment not to deal with any competing electric generation supplier.
(6) An electric distribution company may not provide any preference or advantage to any electric generation supplier in the disclosure of information about operational status and availability of the distribution system.
(7) An electric distribution company shall supply all regulated services and apply tariffs to nonaffiliated electric generation suppliers in the same manner as it does for itself and its affiliated or division electric generation supplier, and shall uniformly supply all regulated services and apply its tariff provisions in a nondiscriminatory manner.
(8) Every electric distribution company and its affiliated or divisional electric generation supplier shall formally adopt and implement these provisions as company policy and shall take appropriate steps to train and instruct its employes in their content and application.
(9) If an electric distribution company customer requests information about electric generation suppliers, the electric distribution company shall provide the latest list as compiled by the Commission to the customer over the telephone, or in written form or by other equal and nondiscriminatory means. In addition, an electric distribution company may provide the address and telephone number of an electric generation supplier if specifically requested by the customer by name. To enable electric distribution companies to fulfill this obligation, the Commission will maintain a written list of licensed electric generation suppliers. The Commission will regularly update this list and provide the updates to electric distribution companies as soon as reasonably practicable. The Commission will compile the list in a manner that is fair to all electric generation suppliers and that is not designed to provide any particular electric generation supplier with a competitive advantage.
(10) An electric distribution company or its affiliate or division may not state or imply that any delivery services provided to an affiliate or division or customer of either are inherently superior, solely on the basis of their affiliation with the electric distribution company, to those provided to any other electric generation supplier or customer or that the electric distribution company's delivery services are enhanced should supply services be procured from its affiliate or division. When an electric distribution company's affiliated or divisional supplier markets or communicates to the public using the electric distribution company's name or logo, it shall include a disclaimer stating that the affiliated or divisional supplier is not the same company as the electric distribution company, that the prices of the affiliated or divisional supplier are not regulated by the Commission and that a customer is not required to buy electricity or other products from the affiliated or divisional supplier to receive the same quality service from the electric distribution company. When an affiliated or divisional supplier advertises or communicates through radio, television or other electronic medium to the public using the electric distribution company's name or logo, the affiliated or divisional supplier shall include at the conclusion of any communication a disclaimer that includes all of the disclaimers listed in this paragraph.
(11) An electric distribution company which is related as an affiliate or division of an electric generation supplier or transmission supplier (meaning any public utility that owns, operates, or controls facilities used for the transmission of electric energy) which serves any portion of this Commonwealth; and any electric generation supplier which is related as an affiliate or division of any electric distribution company or transmission supplier which serves any portion of this Commonwealth, shall insure that its employes function independently of other related companies.]
(1) Nondiscrimination requirements.
(i) An electric distribution company may not give an electric generation supplier, including without limitation its affiliate or division, a preference or advantage over another electric generation supplier in processing a request by a distribution company customer for retail generation supply service.
(ii) Subject to customer privacy or confidentiality constraints, an electric distribution company may not give an electric generation supplier, including without limitation its affiliate or division, a preference or advantage in the dissemination or disclosure of customer information and dissemination or disclosure shall occur at the same time and in an equal and nondiscriminatory manner. The term ''customer information'' means information pertaining to retail electric customer identity and current and future retail electric customer usage patterns, including appliance usage patterns, service requirements or service facilities.
(iii) An electric distribution company may not illegally tie the provision of an electric distribution service within the jurisdiction of the Commission to one of the following:
(A) The purchase, lease or use of other goods or services offered by the electric distribution company or its affiliates.
(B) A direct or indirect commitment not to deal with a competing electric generation supplier.
(iv) An electric distribution company may not provide a preference or advantage to any electric generation supplier in the disclosure of information about operational status and availability of the distribution system.
(v) An electric distribution company shall supply regulated services and apply tariffs to nonaffiliated electric generation suppliers in the same manner as it does for itself and its affiliated or division electric generation supplier and uniformly supply regulated services and apply its tariff provisions in a nondiscriminatory manner.
(2) Customer requests for information.
(i) If an electric distribution company customer requests information about electric generation suppliers, the electric distribution company shall provide the address of the Commission's retail choice web site and offer to send the most current list of suppliers for that service territory, as compiled by the Commission, by regular mail, electronic mail, facsimile, telephonically or by other equal and nondiscriminatory means, according to the customer's preference. The electric distribution company may not recommend or offer an opinion on the relative merits of particular suppliers. In addition, an electric distribution company may provide the mailing address, web site address and telephone number of an electric generation supplier if specifically requested by the customer by name. To enable electric distribution companies to fulfill this obligation, the Commission will maintain a written list of licensed electric generation suppliers. The Commission will regularly update this list and provide the updates to electric distribution companies as soon as reasonably practicable. The Commission will compile the list in a manner that is fair to electric generation suppliers and that is not designed to provide a particular electric generation supplier with a competitive advantage.
(ii) An electric distribution company or its affiliate or division may not state or imply that delivery services provided to an affiliate or division or customer of either are inherently superior, solely on the basis of the affiliation with the electric distribution company, to those provided to another electric generation supplier or customer or that the electric distribution company's delivery services are enhanced should supply services be procured from its affiliate or division.
(3) Prohibited transactions and activities.
(i) An electric distribution company may not subsidize an affiliated electric generation supplier. Costs or overhead related to competitive, nonregulated activities of an affiliated electric generation supplier may not be included in the rates of an electric distribution company.
(ii) An electric distribution company may not sell, release or otherwise transfer to an affiliate electric generation supplier, at less than market value, assets, services or commodities that have been included in regulated rates.
(iii) An electric distribution company may not allow an affiliate electric generation supplier to secure credit through the pledge of assets in the rate base of the electric distribution company or the pledge of money necessary for utility operations.
(iv) An electric generation supplier may not use a word, term, name, symbol, device, registered or unregistered mark or a combination thereof (collectively and singularly referred to as ''EDC identifier'') that identifies or is owned by an electric distribution company, in connection with the sale, offering for sale, distribution or advertising of goods or services, unless the electric generation supplier includes a disclaimer and enters into an appropriate licensing agreement specifying the rights.
(A) The disclaimer shall state that the electric generation supplier is not the same company as the electric distribution company whose EDC identifier is featured and that a customer does not need to buy the electric generation supplier's products or services to continue receiving services from the electric distribution company.
(B) In print and Internet communications, the disclaimer shall be placed immediately adjacent to the EDC identifier and be in equal prominence to the main body of the text. In radio or television communications, the disclaimer shall be clearly spoken.
(v) An electric generation supplier may not have the same or substantially similar name or fictitious name as the electric distribution company or its corporate parent. An electric generation supplier shall change its name by ____ (Editor's Note: The blank refers to 6 months after the effective date of adoption of this proposed rulemaking.).
(vi) An electric generation supplier may not allow an employee or agent to represent himself as an employee of the electric distribution company through his attire or actions. An electric generation supplier shall comply with § 54.43 (relating to standards of conduct and disclosure for licensees), regarding agent identification and misrepresentation.
(vii) An electric distribution company and an affiliated electric generation supplier may not engage in joint marketing, sales or promotional activities unless the joint marketing, sales or promotional activities are offered to electric generation suppliers in the same manner under similar terms and conditions.
(viii) An electric distribution company or electric generation supplier may not engage in false or deceptive advertising to customers with respect to the retail supply of electricity in this Commonwealth.
(ix) An electric distribution company and affiliated electric generation supplier may not share office space and shall be physically separated by occupying different buildings.
(4) Accounting and training requirements.
(i) An electric distribution company and an affiliated electric generation supplier shall maintain separate accounting records for their business activities.
(ii) An electric distribution company that has an affiliated electric generation supplier shall document the business relationship through a cost allocation manual.
(A) The cost allocation manual must include an organizational chart, identify contractual agreements between the two entities, include job positions and job descriptions of shared or temporarily assigned employees and a log of business transactions between the electric distribution company and electric generation supplier.
(B) The cost allocation manual shall be filed with the Commission by ____ (Editor's Note: The blank refers to 6 months after the effective date of adoption of this proposed rulemaking.). Substantial revisions to the cost allocation manual shall be filed when necessary. The cost allocation manual shall be posted by the electric distribution company on its web site within 48 hours of filing with the Commission.
(C) The cost allocation manual shall be reviewed as part of the audits and management efficiency investigations under section 516 of the code (relating to audits of certain utilities).
(iii) An electric distribution company and affiliated electric generation supplier or transmission supplier may not share employees or services, except for corporate support services, emergency support services or tariff services offered to electric generation suppliers on a nondiscriminatory basis. Temporary assignments of employees from an electric distribution company to an affiliated electric generation supplier or transmission supplier, for less than 1 year, shall be considered the same as sharing employees.
(A) Corporate support services do not include purchasing of electric transmission facilities, service and wholesale market products, hedging and arbitrage, transmission and distribution service operations, system operations, engineering, billing, collection, customer service, information systems, electronic data interchange, strategic management and planning, account management, regulatory services, legal services, lobbying, marketing or sales.
(B) Emergency support services are temporary services necessary to protect consumer safety or prevent interruption of service.
(C) The electric distribution company shall report to the Commission by January 31 of each year the work history of each shared, temporarily assigned or permanently transferred employee to the affiliated electric generation supplier during the previous calendar year and the employee's new position with the affiliate.
(iv) An electric distribution company and its affiliated or divisional electric generation supplier shall formally adopt and implement these provisions as company policy and shall take appropriate steps to train and instruct its employees in their content and application.
(5) Dispute resolution procedures. An electric distribution company shall adopt the following dispute resolution procedures to address alleged violations of this section:
(i) Regarding a dispute between an electric distribution company or a related supplier, or both, and an electric generation supplier (each individually referred to as a ''party'' and collectively referred to as ''parties'') alleging a violation of this section, the electric generation supplier shall provide the electric distribution company or related supplier, or both, a written notice of dispute which includes the names of the parties and customers, if any involved, and a brief description of the matters in dispute.
(ii) Within 5 days of receipt of the notice by the electric distribution company or related supplier, or both, a designated senior representative of each of the parties shall attempt to resolve the dispute on an informal basis.
(iii) If the designated representatives are unable to resolve the dispute by mutual agreement within 30 days of the referral, the dispute shall be referred for mediation through the Commission's Office of Administrative Law Judge. A party may request mediation prior to that time if it appears that informal resolution is not productive.
(iv) If mediation is not successful, the matter shall be converted to a formal proceeding before an administrative law judge and the prosecuting parties shall be directed to file a formal pleading in the nature of a complaint, petition or other appropriate pleading with the Commission within 30 days or the matter will be dismissed for lack of prosecution. A party may file a complaint, petition or other appropriate pleading concerning the dispute under any relevant provision of the code.
(6) Penalties. An electric distribution company or electric generation supplier that does not comply with this subchapter shall be subject to penalties under section 3301 of the code (relating to civil penalties for violations).
______
1 The subsection refers to the proposed § 111.8 of the Marketing and Sales Practices for the Retail Residential Energy Market regulations and interim guidelines about marketing and sales practices for the retail residential energy market that address this issue at length.
[Pa.B. Doc. No. 12-230. Filed for public inspection February 10, 2012, 9:00 a.m.]
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