IX. Specific Groups
Because many of the groups eager for access to market sensitive information filed comments specific to their own status, we will address each such organization here. We hope that by identifying and categorizing organizations that commonly appear before the Commission, we will minimize disputes in this area.
A. CMTA
CMTA contends it is not a market participant because it primarily represents electricity customers. In its comments, CMTA agreed to limit persons entitled to market sensitive information to its attorneys and consultants and a few selected members of its Energy Committee, none of whom are engaged in the generation, transmission or distribution of electricity.32 "Regular" membership in CMTA is reserved for companies engaged in the manufacturing, processing and technology fields, which do not, according to CMTA's Vice President of Government Relations, Dorothy Rothrock, include companies engaged in electricity generation, transmission or distribution. Only "regular"
members of CMTA may be members of the Energy Committee.33
Edison believes "CMTA is a harder case [than CLECA], as many of its constituent companies transact in power markets and many of the persons on its Board of Directors and Executive Committee are affiliated with energy companies."34 By the same token, CMTA's Energy Committee members are not currently employed by companies which transact in the wholesale market. Thus, Edison would not oppose providing market sensitive data to the CMTA Energy Committee pursuant to specified conditions.
TURN states that:
CMTA ... has a very lengthy track record of participation in Commission proceedings as a representative of the interests of its members as consumers of utility services. . . . Thus, TURN believes that an entity such as CMTA that merely lists a few market participants among its membership, but is involved in Commission proceedings for the purpose of representing the interests of its members as utility customers, should not be classified as a market participant.
We find that CMTA is not a market participant. If we apply each test in the "Trade Associations" discussion above, CMTA meets no criterion for market participation:
· Its primary focus in proceedings at the Commission is not to advocate for persons/entities that sell or market energy or capacity; bid on, own, or purchase power plants; or bid on utility procurement solicitations.
· A majority of the organization's members do not sell or market energy or capacity; bid on, own, or purchase power plants; or bid on utility procurement solicitations.
· The organization was not formed for the purpose of obtaining market sensitive information.
· The organization is not controlled or primarily funded by a person or entity whose primary purpose is to purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations.
By the same token, as is true with all organizations, CMTA may not share data covered by the confidentiality protections of D.06-06-066 with any market participant (as defined in this decision), including market participants among its members.
We also find that disclosure to CMTA's Energy Committee is permissible, as long as the Energy Committee continues to exclude members who are market participants, and Energy Committee members agree not to share market sensitive information with market participants.
B. CLECA
CLECA contends it is not a market participant because it represents electricity consumers, who "need to know the basis for utility rate requests . . . ." CLECA is comprised of roughly 20 large industrial electrical customers of PG&E and Edison, with an aggregate demand of approximately 525 megawatts (MW), and annual consumption of approximately 3,125 gigawatt hours (GWh). Some are DA customers and others take utility bundled service.35
Edison agrees that CLECA is a "consumer group that is a non-market participant"36 because it advocates for its clients as customers and not as wholesale market participants. However, Edison is concerned that certain of CLECA's members are cogenerators. Edison does not want entities that could sell power in the future to have access to market sensitive information.
TURN believes CLECA is not a market participant because it "has a very lengthy track record of participation in Commission proceedings as a representative of the interests of its members as consumers of utility services."37
For the same reasons we discuss for CMTA, we find that CLECA is not a market participant. CLECA may not share data covered by the confidentiality protections of D.06-06-066 with any market participant (as defined in this decision), including market participants among its members.
C. IEP
IEP focuses more on the conditions under which market participants should have access to market sensitive data than on contending that it is not itself a market participant. D.06-06-066 has already determined that market participants may be denied access outright to market sensitive data, and we do not revisit that determination here.
TURN asserts that IEP is a market participant because it is primarily focused in the interests of its members as producers of electricity. Edison is resolute that IEP must be a market participant. Although IEP claims that its members are also retail consumers of electricity, its website describes it as a "trade association representing both the interests of developers and operators of independent energy facilities and independent power marketers.... IEP's primary goals are to safeguard the interests of operating independent energy projects."38
We find that IEP is a market participant. Its principal purpose, by its own admission, is to represent entities operating in the wholesale power market. IEP itself proposed a definition of market participant that includes the wholesale market.39
We do not believe that IEP's purpose as a representative of generators and power marketers is transformed because its members also purchase electricity. Nor are we prepared to give certain "reviewing representatives" within IEP access to market sensitive information, as we discuss in the "Reviewing Representatives" section above. Finally, we have already held that market participants may be denied access to market sensitive information outright. Thus, we reject IEP's assertion that it is sufficient protection for its staff - who we find are market participants - to sign nondisclosure agreements or be bound by protective orders. We find that there is too much risk that market sensitive information would be disclosed - at least unintentionally - to allow IEP access to such information.
D. CAC
CAC represents the power generation, power marketing and cogeneration operation interests of the following entities: Coalinga Cogeneration Company, Mid-Set Cogeneration Company, Kern River Cogeneration Company, Sycamore Cogeneration Company, Sargent Canyon Cogeneration Company, Salinas River Cogeneration Company, Midway Sunset Cogeneration Company and Watson Cogeneration Company.
Both CAC and EPUC focus on their members' status, rather than on whether CAC or EPUC themselves are market participants. They contend that their members are not market participants because they 1) are not in the exclusive business of generating electric power for sale to the grid, but only sell excess power as a byproduct of their industrial processes; 2) make only de mimimis sales of power to the grid, and 3) are price takers and may therefore only obtain a price for power that is set or approved by the Commission.
CAC's members are all cogenerators. In the section entitled "Cogenerators," above, we explain that individual cogenerators may or may not be market participants depending on their ability to affect the market price of electricity. Thus, not all cogenerators are market participants under the definition we adopt here.
A large number of cogenerators, or an organization representing them, has a far clearer potential to materially impact the market price of electricity. CAC concedes that it "represents the power generation, power marketing and cogeneration operation interests" of a number of entities. Its sole purpose is to advocate for those interests. We find that CAC as an organization meets the first two tests set forth in the "Trade Associations" section, above, and therefore is a market participant.
E. EPUC
EPUC characterizes itself as an ad hoc group representing the electric end use and customer generation interests of the following oil and gas companies: Aera Energy LLC, BP America Inc. (including Atlantic Richfield Company), Chevron U.S.A. Inc., ConocoPhillips Company, ExxonMobil Power and Gas Services Inc, Shell Oil Products US, THUMS Long Beach Company, Occidental Elk Hills, Inc., and Valero Refining Company-California. As noted above, EPUC concentrates in comments on its members' status, and not on its own.
Edison contends EPUC is a market participant because its members are oil and gas companies, and EPUC advocates for its members as power producers, not consumers.
TURN finds the determination of whether EPUC is a market participant to be a close call. "TURN's preliminary view is that EPUC does represent market participant interests, but the Commission could presumably reach a different conclusion after a thorough examination of the facts."40 TURN also views the extremely close association between EPUC and CAC, which typically are represented by members of the same law firm in Commission proceedings, as a reason to view EPUC as a market participant.41
It is true that EPUC's members are large energy consumers, but many of them are also active in the natural gas market. Many categories of data relating to natural gas are deemed confidential in the Matrix accompanying D.06-06-066. Thus, participation in the natural gas market, at least above the de minimis threshold, is enough to render an entity a market participant.
Moreover, EPUC regularly (and perhaps exclusively) participates at the Commission jointly with CAC, which represents cogenerators. As we discuss in the section entitled "Cogenerators" above, some cogenerators are market participants. Because neither EPUC nor CAC address whether they individually are market participants, we must assume that they will continue to act jointly. Thus, if we find that one of the two associations is a market participant, the finding will apply to both EPUC and CAC as long as they continue to participate jointly in Commission proceedings. We find CAC is a market participant above, and it follows that EPUC is a market participant as well.
Moreover, an association representing cogenerators or oil and gas companies as a whole may have more ability to materially affect the market price of electricity than an individual company acting alone. Collectively, CAC's and EPUC's memberships may well have the ability to materially affect the market price of electricity. Considering all of the circumstances we find that EPUC is a market participant.
F. IOUs
IEP seeks to bar an IOU's employees who buy power from access to data generated by that same IOU's employees who sell power. According to IEP, when an IOU sells power into the wholesale market, it acts in competition with other generators, and the IOU as buyer should not have access to greater information about IOU wholesale sales than other generators have.
Edison agrees that the "company as a whole" is a market participant, and that it is permissible to prevent Edison employees from access to market sensitive data generated by PG&E or SDG&E. However, Edison asserts, the Commission should not bar any Edison employee from access to data relevant to Edison's wholesale energy sales. "Those who buy power and those who sell it are the same people, working in the same department. It would be extremely difficult for the company to properly provide power for its bundled service customers if those individuals were segmented and unable to speak to each other."42
The three major IOUs - Edison, SDG&E and PG&E - are market participants, as Edison concedes. As for sharing of information between utility employees, we do not prohibit such sharing by this decision. On the other hand, the IOUs are bound by other Commission decisions, such as those adopting the affiliate transaction rules. Thus, for example, where an IOU's affiliate sells or trades electricity in the wholesale market, our affiliate transaction rules bar exchange of information between the IOU and the affiliate on terms more favorable than the information-sharing arrangement available to non-IOU and non-IOU-affiliate third parties.
G. CAISO
CAISO states that no one mentioned CAISO when discussing the appropriate scope of the definition of market participants. CAISO concludes that this silence likely reflects general acceptance that the CAISO is not a market participant. Because the CAISO procures energy, capacity and other reliability-related service on behalf of its control area, it is concerned that some of the proposed definitions of market participant might inadvertently include CAISO.
CARE contends (in reply comments filed concurrently with CAISO's reply comments) that CAISO is a market participant. CARE cites evidence the CPUC submitted to the FERC in 2003:
Another example of the potential for collective action as part of an industry organization is shown in a group of letters sent by various parties and organizations in June 2000 in an effort to forestall implementation of reduced price caps then under consideration by the ISO board of directors. Notable among these documents are letters sent on or about June 27, 2000, to Jan Smutny-Jones in his role as Chairman of the Board of Directors of the ISO, and a letter to Governor Davis of California co-signed by Jan Smutny-Jones in his contemporaneous role as Executive Director of the [IEP].43
CARE contends that because Smutny-Jones held dual roles, there is no certainty that CAISO will not share information with market participants in the future.
We do not find that the evidence CARE cites renders the CAISO a market participant. The CAISO is a not-for-profit public benefit corporation that ensures the reliability of the electric grid in California. While it enters the market for out of market calls, it engages in these activities to ensure system reliability, not for its own economic gain. It operates the real-time market and is establishing a day-ahead market. In this capacity, it acts as neutral arbiter, not as a participant at all. Its incentive is to keep the lights on and the grid stable, not to drive up (or down) the price of electricity out of a desire to enhance profits for itself.44
CAISO did not weigh in on the appropriateness of having its staff sign nondisclosure agreements or submit to protective orders. CAISO has done so in the past (see Ruling of Administrative Law Judge (ALJ) Mark Wetzell, December 20, 2004, in Rulemaking 04-04-003, http://www.cpuc.ca.gov/word_pdf/RULINGS/42395.doc) and we assume it would agree not to disclose market sensitive information to market participants.
H. ESPs
ESPs sell electricity to large retail customers and also buy electricity at wholesale. No party (including an ESP representative in this proceeding, the Alliance for Retail Energy Markets [AReM]) expressed an opinion on the status of ESPs. Participation in the wholesale market for energy and capacity, at least above the 1 MW de minimis threshold, is enough to render an entity a market participant.
I. AReM
Similar to ESPs, no party expressed an opinion on the status of AReM. We find that AReM is a market participant because its principal purpose is to represent entities operating in the wholesale power market.
32 CMTA opening comments, Appendix, Affidavit of Dorothy Rothrock on Behalf of the [CMTA], at 2.
33 The current members of the Energy Committee are: The Boeing Company, Georgia-Pacific Corporation, Guardian Industries Corp., Hitachi Global Storage Technologies, Jazz Semiconductor, Inc, Kimberly-Clark Corp., New United Motor Manufacturing, Inc., Northrop Grumman Corp., Oracle, PPG Industries, Inc., Procter & Gamble Co., Raytheon Co., Saint-Gobain Containers, Searles Valley Minerals, Sierra Pine, Ltd., Smurfit-Stone Container Corp., TABC, Inc., and United States Gypsum Co.
34 Edison reply comments at 3.
35 CLECA opening comments at 3.
36 Edison reply comments at 2.
37 TURN opening comments at 4 (emphasis in original).
38 Edison reply comments at 5.
39 IEP opening comments at 2.
40 TURN opening comments at 5.
41 TURN is resolute that CAC is a market participant.
42 Edison reply comments at 8.
43 CARE reply comments at 9 (citation omitted).
44 Indeed, the CAISO is more akin to a state agency than it is to a market participant.
