GUIDELINES FOR DETERMINING PUBLIC UTILITY STATUS
§ 69.1401. Guidelines for determining public utility status—statement of policy.
(a) Coverage. This section applies to all utility projects or services, including alternative energy systems.
(b) Purpose. This section provides guidance to developers of all utility projects or services, including developers of alternative energy systems under the Alternative Energy Portfolio Standards Act (73 P. S. § § 1648.1—1648.8), in facilitating the design of projects and business plans.
(c) Fact based determination. The Commission will consider the status of a utility project or service based on the specific facts of the project or service and will take into consideration the following criteria in formulating its decision:
(1) The service being provided by the utility project is merely incidental to nonutility business with the customers which creates a nexus between the provider and customer.
(2) The facility is designed and constructed only to serve a specific group of individuals or entities, and others cannot feasibly be served without a significant revision to the project.
(3) The service is provided to a single customer or to a defined, privileged and limited group when the provider reserves its right to select its customers by contractual arrangement so that no one among the public, outside of the selected group, is privileged to demand service, and resale of the service is prohibited, except to the extent that a building or facility owner/operator that manages the internal distribution system serving the building or facility supplies electric power and related electric power services to occupants of the building or facility. See 66 Pa.C.S. § § 102 and 2803 (relating to definitions).
(d) Contractual language permitting modifications. The Commission will not deem a utility project or service that satisfies the criteria under subsection (c) to be a public utility based solely on the fact that the relevant contractual provisions between the utility service provider or project developer and end-user customers permit:
(1) The utility service provider or project developer to substitute customers or to rearrange the project.
(2) The service provider or utility project developer to revise the customer group as a result of a material change in circumstances, including an instance when the actual output from the project proves to be materially less than or greater than projected levels.
(e) Modification of project or service. Implementation of contractual provisions that result in an actual increase in the original customer number, an actual alteration to the nature of the relationship between the project developer and the original customer group, an alteration to the select nature of the original customer group or other material change in regard to the original customer group may result in a change to the nonpublic utility status of the utility project or service.
(f) Chief Counsel opinion letter. A project developer may request informal advice from the Chief Counsel regarding the jurisdictional status of a utility project or service. The opinion of counsel letter will be issued under § 1.96 (relating to unofficial statements and opinions by Commission personnel).
(1) A request for opinion of counsel letter must be directed to the Commission’s Chief Counsel and contain the facts necessary to render an opinion as to the jurisdictional status of the utility project or service. The opinion will be based solely on the facts provided and limited to the facts stated in the request.
(2) The Chief Counsel will file a copy of the opinion of counsel letter with the Commission’s Secretary. The copy of the opinion of counsel letter will be filed at Docket No. M-00051865 F.0002 and will constitute constructive notice of the utility project or service that is the subject of the opinion. The Commission will publish public notice of the issuance of the letter in the Pennsylvania Bulletin. Opinion of counsel letters filed at the previous docket number will be available for public access upon request.
(3) The act of requesting an opinion of counsel letter may be considered as evidence of a good faith effort to operate in accordance with the law by the project developer of a utility project or service and may be considered as a mitigating factor in imposition of fines and penalties in future complaint proceedings alleging de facto public utility operations.
(4) A change in the nature or scope of the operation of the utility project or service may result in a change in the informal advice rendered by an opinion of counsel letter. When a change occurs in the facts stated in the request, a project developer may not rely on the existing Chief Counsel opinion letter but the project developer may request a supplemental Chief Counsel opinion letter.
(g) Notice and disclosure statement. A utility service provider or project developer may voluntarily file with the Commission’s Secretary a notice and disclosure statement describing the nature and scope of the operation of a utility project or service with an assertion of its nonpublic utility status.
(1) Information that will allow for a determination to be made as to the jurisdictional status of the utility project or service, including its location, capacity output and the projected number of customers served, should be provided in the notice and disclosure statement. The reasons that the utility project or service does not constitute a public utility facility or provide public utility service should be explained with reference to the criteria presented in this section.
(2) The notice and disclosure statement will be filed at Docket No. M-00051865 F.0002 and will be available for public access upon request. The Commission will publish public notice of the filing in the Pennsylvania Bulletin. The filed notice and disclosure statement will constitute constructive notice of the asserted nonpublic utility status of the utility project or service.
(3) The act of voluntarily filing a notice and disclosure of nonpublic utility status may be considered as evidence of a good faith effort to operate in accordance with the law by the project developer of a utility service or utility service provider and may be considered as a mitigating factor in imposition of fines and penalties in future complaint proceedings alleging de facto public utility operations.
(4) A notice and disclosure statement of nonpublic utility status may be amended to report a change in the nature or operation of the utility project or service that may affect its jurisdictional status. An amended notice and disclosure statement should be filed with the Commission’s secretary as soon as practicable after a change takes place.
Source The provisions of this § 69.1401 adopted January 5, 2007, effective January 6, 2007, 37 Pa.B. 29.
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