2. Procedural Background

The Commission initiated this rulemaking on August 24, 2009 as part of our efforts to ready the electric infrastructure for light-duty passenger plug-in hybrid electric vehicles and battery electric vehicles (collectively "electric vehicles").

The Assigned Commissioner issued a Scoping Memo on January 12, 2010 setting the procedural schedule and scope of the proceeding. The Scoping Memo also confirmed that the Commission will address the requirements of Senate Bill 626 (Kehoe) in this rulemaking.

This decision resolves Phase 1 of the rulemaking. The question before the Commission is whether the sale of electric vehicle charging services to the public makes a corporation or person a public utility within the meaning of § 216 solely because of that sale, ownership or operation.

This question was raised early in the proceeding as a priority matter. In comments filed on October 5, 2009, soon after the Commission issued this rulemaking, parties expressed broad agreement that the Commission should move quickly to clarify the nature of its regulatory authority over the sale of electric vehicle charging services to the public. Parties confirmed the urgency of this issue at the November 18, 2009 prehearing conference, stating in one instance that "clarity around Section 216 and 218 [of the Pub. Util. Code] are critical in terms of investment in California...."
(November 18, 2009 RT 43:11-12.)

The assigned Commissioner agreed that the nature of the Commission's regulatory oversight needed to be addressed expeditiously and, as a result, identified this issue as the first to be addressed in the proceeding, explaining that:

At the November 18, 2009 prehearing conference and in comments, parties requested the Commission address issues related to the provision of electric vehicle charging services by entities other than the electrical corporations currently regulated by the Commission as public utilities. Parties described the resolution of these issues as "critical" to bringing private investment to California for electric vehicle charging infrastructure and requested the Commission address these issues as soon as possible. I agree.

(Scoping Memo at 3.)

Accordingly, the Assigned Commissioner's Scoping Memo (Scoping Memo) places within the scope of this proceeding the question, stated broadly, of the extent to which §§ 216 and 218 apply to providers of electric vehicle charging services. The Scoping Memo emphasized that these providers could include owners of standalone electric vehicle charging spots that sell a single type of transportation fuel, electric recharging; owners of shared station arrangements where several types of transportation fuels, including electric recharging, are sold; residential and commercial landlords that provide electric vehicle charging as a service on the premises to tenants, guests of the tenants, customers of the tenants, and perhaps others; condominium associations that provide electric vehicle charging on the premises as a service to the condominium owners, their guests, and others; employers that provide access to recharging facilities as a service to their employees; and potentially others.

Moreover, in an effort to focus the attention of parties on this key issue, the assigned Commissioner put forward a preliminary legal interpretation based on an initial review of parties' comments and the rationale the Commission applied in Decision (D.) 91-07-018¹ concerning the operation of facilities for the sale of compressed natural gas for a transportation fuel. This preliminary interpretation posited that an entity owning, controlling, operating, or managing electric vehicle charging facilities is not a "public utility" pursuant to the Public Utilities Code and asked parties to provide a legal and policy analysis in response to this preliminary interpretation. (Scoping Memo at 5.) Parties provided the requested analysis in briefs filed on February 8, 2010 and reply briefs filed on March 1, 2010. The arguments presented by parties are summarized below.

¹ D.91-07-018, 1991 Cal. PUC LEXIS 509 (July 2, 1991). In D.91-07-018, the Commission found as follows: "Persons operating service stations for the sale of CNG [compressed natural gas], other than those who are public utilities by reason of operations other than operating a service station, are not subject to regulation by this Commission. Those persons may sell CNG at prices they deem appropriate."..."Our jurisdiction on CNG sales is limited to PG&E's side of the meter and the connection to the service stations' side of the meter." (D.91-07-018, Conclusions of Law 18 and 19).