IV. Comments on the Alternate Decision

The Alternate Decision of Commissioner Wood was filed and served on parties on April 8, 2003. Comments on the Proposed Decision were filed on April 28, 2003, and reply comments were filed on May 5, 2003.

Comments were filed by SDG&E, SCE, PG&E, ORA, TURN, CLECA; AreM, WPTF, City of Corona, Los Angeles County Unified School District, Del Taco, Lowe's Home Improvement Centers, SBC Services Inc., Pacific Telesis Group, Hitachi Global Storage Technologies, and Strategic Energy LLC. Reply Comments were filed by SDG&E, SCE, PG&E, ORA, TURN, CMTA, CLECA, AreM, WPTF, City of Corona, Los Angeles County Unified School District, Del Taco, Lowe's Home Improvement Centers, and Strategic Energy LLC.

The Commission's consideration of Comments and Reply Comments is generally reflected by revisions to the original Alternate Decision made throughout this Decision. There are two matters raised in Comments that warrant further specific comment and clarification.

First, SCE argues that Ordering Paragraph 3 should be deleted because;

"...SCE cannot undertake the task described in Ordering Paragraph 3 because SCE does not have access to the DA contracts. The Commission has asked DA customers and ESPs to provide their contracts for Commission review on several different occasions, but ESPs and customers have not been willing to allow such review...." SCE Comments, page 5.

This is not a sufficient reason for deleting the Ordering Paragraph. The Commission's orders regarding the suspension of DA have been quite clear about the necessity for cooperation among ESPs, utilities and the Commission. Ordering Paragraphs 6, 7 and 8 of the Order Suspending Direct Access [D.01-09-060], supra, prohibit utilities from processing DASRs and direct utilities to inform the Commission of "... the steps they have taken to ensure that no direct access service requests are accepted for any contracts executed or agreements entered into after September 20, 2001." This required the utilities to have access to the DA contracts associated with any DASRs processed after September 20, 2001.

Order on Rehearing of DA Suspension [D.01-10-036], supra, was even more explicit on this point.

... For purpose of utility compliance with D.01-09-060, we want to make it clear that, unless otherwise directed or allowed to in a subsequent Commission decision, utilities cannot set a deadline after which they could refuse to process DASRs relating to contracts executed on or before September 20, 2001.

However, we note that our clarifications today regarding the requirements for accepting DASRs should not be interpreted in any way to diminish or restrict the utilities' obligations, that we ordered in D.01-09-060, to take appropriate measures to ensure that any DASRs they do accept are for contracts executed or agreements entered into on or before September 20, 2001. We expect ESPs and other entities to cooperate with the utilities in their verification activities. Order on Rehearing of DA Suspension [D.01-10-036], supra, Subdivision F (slip op.) (emphasis added)

This directive could have resulted in utilities refusing to process unverified or unverifiable DASRs, since their ability to comply with the Commission's order was effectively thwarted. Utilities chose not to take that approach to uncooperative ESPs, but their apparently unreciprocated overtures to ESPs have placed them in an awkward position in terms of their ability to comply with our Orders. The Commission is not without recourse, however.

Effective January 1, 2003, all ESPs are required to register with the Commission, without regard to the class of customer they serve. Pub. Util. Code Section 394, as amended by Stats. 2002, Chapter 838 (AB 117 (Migden), Section 6. The Energy Division (ED) is directed to complete the process of registering all ESPs not later than May 31, 2003. Utilities shall be ordered to report to the ED concerning any ESP that refuses to make available DA contracts for purposes of compliance with our orders, including the processing of DASRs. The ED shall report to the Commission, not later than June 30, 2003, concerning any ESP refusing to cooperate in making available DA contracts for review and compliance, for purposes of enforcement proceedings, including revocation of ESP registration, pursuant to Pub. Util. Code section 394.25. Ordering Paragraph 3 shall be modified to reflect these considerations, and an additional Ordering Paragraph regarding the ED's reporting responsibilities shall be added.

Second, SCE objects that review of all DASRs following the suspension to determine compliance with the Commission's orders would be extremely burdensome and would place SCE in a "policing" role. SCE recommends applying the "prohibition on the switching exemption" prospectively only. SCE Comments at page 5. TURN comments that seeking to rebill as bundled customers all DA customers who wrongfully received DA service after the suspension date would be too harsh, since they would in effect be billed twice for energy. TURN instead proposes to assess any such DA customer the full, uncapped, DA CRS. TURN Comments, at page 6 and proposed change to OP 5.

TURN's proposals simplify compliance and the tasks of the utilities in assuring compliance. We will accept them. By taking steps at the Commission to assure cooperation between ESPs and utilities, we will remove some of the onus from the utilities to assume a "policing" role, as requested by SCE.