16. Customer Lists, Confidentiality

PG&E routinely provides lists of potentially eligible participants (including customers that participate in the CARE program) to its LIEE contractors, subject to confidentiality agreements. SCE promotes the LIEE program to CARE participants through direct mailings, and only forwards customer information to their contractors if the CARE participant requests participation in the LIEE program. SCE, SoCal, and SDG&E encourage their contractors to locate eligible participants through independent means.

PG&E states that its approach has worked successfully in the past. Contractors' Coalition, LIAB, and Latino Issues Forum recommend that the southern California utilities also release CARE customer lists to LIEE contractors, in order to reduce administrative costs and increase the number of homes weatherized under the program. However, LIAB would also require that no more than 50% of the homes weatherized by the contractors originate from any list of CARE customers provided by the utilities. In LIAB's view, this limit would ensure that contractors don't overly rely on CARE customer lists in performing their outreach activities.

SCE, SDG&E, and SoCal oppose the release of CARE customer information to contractors, without the customers' prior written permission. SCE argues that the utility is required to maintain the confidentiality of customer information pursuant to Pub. Util. Code § 394.4 and other Commission policies. Moreover, SCE argues that turning information about the income status of customers over to a third party, without the customer's specific knowledge and permission, would violate expectations that this information is confidential. These parties contend that the existence of a non-disclosure agreement would not guarantee that contractors or their outreach workers could not take advantage of customer-specific information. It is their position that services to the low-income community can be provided without the release of customer-specific information.

In considering this issue, we note that PG&E has had long-standing policies with regard to the release of customer information, which we have reviewed and approved. In 1990, the Commission convened an investigation (I.90-01-033) into whether regulated utilities should grant competitive access to customer list information. In D.90-12-121, the Commission dismissed the energy utilities from the investigation after reviewing and approving the utilities' policies. The decision describes PG&E's policy as follows:

"PG&E states that it regards all data on former and present customers as confidential. It is not released to third parties without the written permission of the customer except: (1) when the information is requested or required by this Commission or other regulatory bodies with jurisdiction over PG&E; (2) to law enforcement agencies, whether or not the request is supported by subpoena; (3) pursuant to court order; (4) to collection agencies working on closed PG&E accounts, but in such cases only essential information is released; and (5) to contractors or consultants providing utility-related services, but only to the extent necessary to render the service and subject to confidentiality provisions in the contracts between them and PG&E." (D.90-12-121, mimeo., p. 4 (emphasis added).)⁵⁹

With regard to energy efficiency programs, our determinations concerning the release of customer information to contractors have consistently been supportive of PG&E's approach. In D.93-02-041, we determined in the context of the DSM bidding pilot programs that:

"customer billing records should be made available to winning bidders, at cost, provided that (1) the winning bidder has documented its need for such records based on the specifics of its program implementation or marketing plan and (2) appropriate security arrangements have been made that will protect the confidentiality of these records. This may or may not involve obtaining prior written consent from each customer... Should customer-specific billing records be released to winning bidders (with or without prior customer consent), appropriate steps must be taken to ensure that this information is kept confidential and used only for the purpose of the winning bidders' DSM projects. We expect PG&E, SDG&E, SCE and SoCal to negotiate these procedures with winning bidders on a case-by-case basis." (D.93-02-041, 48 CPUC2d 199, 209.)

In D.97-12-103, we recognized that an approach that requires customer consent prior to release of customer information "may be unworkable for certain DSM applications and marketing approaches." (D.97-12-103, p.23.) We affirmed the reasonableness of the procedures described above for standard performance contracting and other competitive bid activities under the utilities' PY1998 energy efficiency programs:

"The utilities shall provide access to customer information to contractors under the standard performance contract program and other programs subject to competitive bid, at cost, provided that (1) the contractor has documented its need for such records based on the specifics of its program implementation or marketing plan and (2) appropriate security arrangements have been made that will protect the confidentiality of these records. Consistent with the procedures adopted for the DSM pilot bidding program, the utilities shall negotiate with contractors the specific procedures for (1) releasing customer records (with or without prior customer consent), (2) contacting the customer with program information and (3) ensuring confidentiality of customer-specific information. Until further notice, these procedures will also apply to contractors serving under the new administrative structure...." (D.97-12-103, mimeo., Ordering Paragraph 8.)

Similarly, in D.98-04-063 we established policy rules for the independent program administrator and implementors of energy efficiency programs that were consistent with the approach adopted in D.97-12-103. (See D.98-04-063, mimeo., pp. 28-29, Finding of Fact 21, Policy Rules, Section VIII-7.)

In D.98-04-063, we limited the use of this customer information to public goods charge (PGC) funded programs and purposed:

"Our directives in D.97-12-103 did not explicitly state that any utility customer information received through this process may be used only for PGC-funded programs and purposes, as CBEE now recommends. This restriction is appropriate to ensure against potential abuses by power marketers or potential attempts to circumvent our utility affiliate rules regarding access to customer information. Accordingly, we will adopt CBEE's proposed rules VIII-7 and IX-6(20), with modifications that clarify the approval process for ensuring nondiscrimination and customer privacy protection." (D.98-04-063, at 28-29.)

In most pertinent part, Policy Rule VIII-7 states:

"Utility customer information received through this process may be used only for PGC-funded programs and purposes. A violation of the use of Utility Customer Information for purposes other than PGC-funded programs and purposes may result in penalties. Including, but not limited to revocation of an Administrator's or implementor's ability to participate in PGC-funded efforts."

In sum, we believe that PG&E's approach is entirely consistent with current Commission policies. It is not contradicted by Pub. Util. Code § 394.4, as SCE contends. Pub. Util. Code § 394.4 is relevant to a different set of circumstances. It requires the Commission to adopt a written customer consent provision as part of a set of minimum standards for Electric Service Providers, and does not apply to all utilities. Moreover, as discussed above, the Commission has clearly articulated its policy preference with regard to energy efficiency programs.

There is no evidence to substantiate claims that the provision of lists of eligible customers, along the lines currently practiced by PG&E, has resulted in either (1) reduced efforts by contractors to reach eligible customers that are not on CARE lists, or (2) improper use of that information by contractors. In fact, the testimony on this issue persuades us that appropriate safeguards are in place to protect customer confidentiality, and that PG&E's contractors and subcontractors are encouraged to approach both CARE participants and other eligible customers that do not currently participate in the CARE program. As Witness Esteves described during cross-examination:

"PG&E supplies us under confidentiality and proprietary agreement with a list of all eligible customers, that is to say, people who have not been previously treated and who are eligible to be considered for the program.

"In that list they identify those customers who are also CARE customers according to their records. These are customers who have not been previously treated under the program for at least the last five years. And that list is available on a need-to-know basis to the individual contractors for their-subcontractors-for their particular area which we distribute to them.

"All this information is distributed on an encrypted format and kept in that fashion. It is kept under a proprietary computer program that SESCO owns and operates, and the contractor is not allowed to use it outside of that system." (RT at p. 968.)

We note that there is no indication that the outreach efforts under PG&E's program are compromised by the provision of a list of eligible customers: PG&E's program has reached an impressive number of homes each year, averaging approximately 35,000 units per year. (RT at 973.) Moreover, making it easier for program implementors to identify and try to enroll CARE customers into the LIEE program is entirely consistent with our goal of improved coordination between the programs. We do not believe that a restriction on the use of CARE lists, as LIAB proposes, is warranted.

In sum, we believe that all the utilities should follow PG&E's lead in providing LIEE contractors with lists of eligible (including CARE) customers, subject to confidentiality agreements. This information should be provided to the contractor, at cost, provided that: (1) the contractor has documented its need for such records based on the specifics of its program implementation or marketing plan, and (2) appropriate security arrangements that will protect the confidentiality of these records have been made. The utilities shall negotiate with contractors the specific procedures for (1) releasing customer records (without prior customer consent), (2) contacting the customer with program information, and (3) ensuring confidentiality of customer-specific information. Utility customer information received through this process may be used only for LIEE purposes. The use of utility customer information for purposes other than LIEE programs and purposes may result in penalties, including, but not limited to revocation of contractor's or subcontractor's ability to participate in LIEE programs.