CCAs must have certain types of information in order to plan their procurement strategies, assess the viability of offering energy services, and to contact customers. Section 366.2(c)(9) anticipates the needs of CCAs for certain types of customer data and information:
"All electrical corporations shall cooperate fully with any community choice aggregators that investigate, pursue, or implement community choice aggregation programs. Cooperation shall include providing the entities with appropriate billing and electrical load data, including, but not limited to, data detailing electricity needs and patterns of usage, as determined by the commission, and in accordance with procedures established by the commission."
D.03-07-034 has already directed the utilities to provide CCAs with certain information at no charge to the CCA. R.03-10-003 and the ALJ's November 26, 2004 ruling found that remaining issues regarding the provision of information to CCAs should be resolved in Phase 1 of this proceeding. Accordingly, the ALJ directed the utilities to meet with interested parties on these issues and to file a report on the results of the meetings. The utilities held such meetings and on January 30, 2004, the utilities filed a Joint Utility Report on Community Choice Aggregation Information Issues which formed the basis for the debate on related issues.
In this area, the main issues addressed in this proceeding concern the kind of information the CCAs should be entitled to receive and the confidentiality of customer information.
The information the CCAs may need from the utilities may be confidential, for example, (1) basic load and usage data required to estimate energy procurement needs and (2) customer information needed to contact customers and provide services, including name, address, and meter information. A major dispute is over whether the type and nature of information should differ before and after the CCA initiates service and the customer is officially transferred to the CCA.
The utilities raise general concerns that they not be required to provide confidential information to CCAs except with strict protections for utility customers. SDG&E argues that CCAs must have the written consent of the customer, prior to the customer transferring to the CCA, in order to receive such information, which is current practice for utility release of customer information.
Prior to customer cut-over, the utilities agree to provide information on customer load and usage if it is aggregated in order to mitigate confidentiality concerns. SDG&E argues that CCAs would not need more since, as cities and counties, they would have information about local customers. PG&E proposes to aggregate customer information until the customer is transferred to the CCA and then release all customer information to the CCA. It would continue to offer basic information required by D.03-07-034 at no charge to the CCA and provide a standardized list of information to the CCA at cost. It asks the Commission to approve tariff provisions that would have the CCAs indemnify the utilities from liabilities they might occur from the release of customer information.
ORA generally agrees with the utilities' proposals and suggests that customer notification letters be drafted by the CCAs but mailed by utilities to accommodate confidentiality concerns that arise before cut-over to the CCA. ORA shares the utilities' concerns that load data remain aggregated and argues that CCAs do not need more in order to forecast load. In response to CCA concerns that they cannot market services without specific customer load data, ORA agrees with SDG&E and PG&E that cities and counties have access to tax rolls that they may use to contact individual customers.
LGCC objects to the many rules the utilities would implement to limit the amount of information LGCC argues is required for CCAs to market and provide energy services. LGCC, for example, objects to the utilities' proposed requirement that a CCA provide projected load forecasts to the utilities, and assume the risk that the forecast is accurate, while simultaneously proposing to deny the CCAs access to load information that it could not otherwise obtain. It argues that aggregated load data would not provide enough information for CCAs to conduct meaningful marketing and load forecasting. LGCC believes customer confidentiality would not be compromised if the individual load data was masked so that it did not identify the customers. ElectricAmerica goes into some detail about the kinds of information CCAs may need, most of which would be included in existing utility data bases.
Local Power believes the statute is clear with regard to its requirement that utilities provide all relevant information to CCAs that are "investigating, pursuing or implementing" CCA programs and suggests that confidentiality concerns may be addressed by imposing limits on the CCA's use of the information it gets.
LA/CV contends that customers have implicitly agreed to the release of their information when their duly elected public representatives form the CCA. LA/CV believes the CCA is a consortium of customers, as distinguished from the direct access program, where customers must affirmatively choose to change their service provider rather than opt-out of service offered by the CCA. LA/CV and Local Power also observe that AB 117 requires the CCA to notify utility customers of the CCA's plan to offer service, a requirement the CCA cannot satisfy without customer billing information.
The utilities assert that they should only be required to provide information that is directly relevant to the CCA's energy operations. LGCC suggest that the information requirements adopted in D.03-07-034 on behalf of CCAs is the minimum necessary for prospective CCAs but suggests the utilities have not been cooperative with prospective CCAs in working on their other information needs.
Discussion. AB 117 is clear in its intent to require the utilities to provide CCAs all customer and usage data that is relevant to CCA operations even before the CCA begins offering service. In addressing the informational needs of CCAs, Section 366. 2(c) (9) provides that the utilities shall "cooperate" with CCAs that "investigate or pursue" CCA programs. Because a CCA is most likely to "investigate or pursue" CCA programs before it begins offering service, we read the plain language of the statute to mean relevant information must be provided on demand, without distinguishing between a customer who is still with the utility or a customer of the CCA or between the time a CCA is created and the time it provides service. By law, CCAs are entitled to receive certain types of information as long as they are investigating, pursuing or implementing a CCA program.
Section 366.2(c)(13) (A) supports this finding in its requirement that CCAs provide opt-out notifications to prospective customers prior to cut-over. Although Section 366(2) (13)(B) gives the CCAs the option to request utility assistance with the notifications, each CCA must assume ultimate responsibility for the notices. The CCA cannot satisfy this responsibility without access to customer names and addresses. Thus, if the Legislature had intended for customer information to remain with the utility, it would have not required the CCA to issue the opt-out notices.
SDG&E argues that D.01-07-032 and D.90-12-121 should apply in this case. Those orders prohibit a utility from disclosing customer information even to a district attorney without either the customer's consent or the order of a judge. The facts in that case, however, are distinguishable from those here, primarily because the statute itself directs the provision of customer information to a CCA. Moreover, unlike a district attorney investigating criminal activity. The statute permits the CCA to receive such information. Unlike the unwilling subject of a criminal investigation, the customers for whom the CCA seeks information have implicitly agreed to permit the CCA to aggregate their energy requirements and offer service.
We believe AB 117 assumes, as we do, that CCAs can be entrusted with confidential customer information. Unlike energy service providers offering direct access, CCAs are government agencies. As long as some basic protections are in place, the risks of providing confidential information to these entities is outweighed by the dictates of the statute and the potential benefits CCA customers would realize only if CCAs have the information they need to make fully informed decisions regarding energy procurement, service requirements and resource planning decisions. To help assure that cities and counties do not seek information casually, we will require as a condition of receiving utility information that the mayor or chief county administrator sign a letter attesting to the city or county's intent to "investigate" or "pursue" status as a CCA.
In addition to its requirement that utilities provide information to CCAs before and after they initiate operations, AB 117 specifies the types of information the utilities must provide to CCAs. Section 366. 2(c)(9) refers to "appropriate billing and electrical load data, including, but not limited to, data detailing electricity needs and patterns of usage." The statute specifically refers to "billing" data as distinct from "electrical load data." We are not aware how aggregated or masked billing data could satisfy the statutory requirement. Again, the plain language of the law means that the CCA is entitled to any and all billing data that is reasonably useful to the CCA. It also refers to information "detailing" electricity needs and patterns of usage. Use of such specific terms reflect the Legislature's intent for CCAs to have information that is neither masked nor aggregated, to the extent such information is required by CCAs that would reasonably "investigate, pursue or implement" a CCA program.
This approach is consistent with our understanding that CCAs may need specific usage information in order to market their services and tailor those services to customer needs. We are not convinced by utility testimony that city and county tax rolls will provide the kind of information CCAs need to accomplish those ends.
We direct the utilities to provide all relevant usage information, load data and customer information to CCAs. The CCA shall sign nondisclosure agreements for any confidential information that is not masked or aggregated. We will also require that all notices relevant to CCA programs inform customers that the utility may share customer information with the CCA and that the CCA may not use the utility's information for any purpose other than to facilitate provision of energy services.
We agree with PG&E and SDG&E that the utilities should be permitted to include language in their tariffs that CCAs indemnify the utility from liability associated with release of customer information, as long as the utility provided the information responsibly and according to Commission rules, orders and approved tariffs. Utilities should inform customers who complain about the release of customer information that California state law requires the release of that information to CCAs.
We also agree with PG&E that confidential information about a utility's market, market strategies, procurement efforts or contracts (as addressed in R.04-04-003) is probably not among the types of "appropriate" information to which CCAs are entitled. If a CCA seeks such information and the utility objects to its provision to the CCA, we will consider this disclosure on a case-by-case basis in this proceeding. Hopefully, as PG&E suggests, we will ultimately have a list of the types of information that are automatically available to CCAs and the types of information that would not be available to CCAs. This list can more readily be developed after the utilities gain experience with the CCA program.
Finally, we state our intent to enforce the law with respect to its requirement that the utilities "cooperate" with CCAs in the provision of all relevant information, a term which we interpret broadly. The utilities may not determine what information is "relevant" to CCA operations as long as the utility is reimbursed for the reasonable costs of providing the information. While we welcome the utilities' tariff proposals for the secure and cost-effective sharing of information, we will not tolerate utility actions or delays that may affect the provision of information to CCAs or CCA services to customers.
It may, however, be reasonable for utilities to provide aggregate data by customer type or geographic area at the beginning of the process, when a potential CCA is investigating whether to pursue becoming a CCA, whereas more detailed customer and billing information is warranted when the CCA is developing its implementation plan.