Assignment of Proceeding

Geoffrey F. Brown is the Assigned Commissioner and Thomas Pulsifer is the assigned ALJ in this proceeding.

Findings of Fact

1. D.04-07-025 adopted rules that required an affidavit process be implemented to provide confirmation that load growth on existing non-continuous DA accounts does not result in customer's total load exceeding the contracted level of DA load defined by the terms of customer's DA service contract.

2. The alternative draft affidavit versions provided by parties through the Rule 22 Working Group process provide a basis for determining and finalizing the language to be contained in the affidavit.

3. The language in Sections 1 and 2 of parties' proposed affidavit is not controversial, but merely describes the customer's authority to execute the affidavit and the customer's personal knowledge of the facts contained in the affidavit.

4. Section 3 of the proposed affidavit verifies that the customer entered into a DA service agreement with an Electric Service Provider (ESP) on or before the September 20, 2001 suspension date, and that the customer currently has a valid agreement for DA service in effect with either the same or a different ESP.

5. The addition of PG&E's proposed "check box" format, with the revisions offered by TURN, provides a more understandable and easier affidavit form for customers to complete.

6. Section 4 of the proposed affidavit verifies that the customer's total level of DA load on all DA accounts does not exceed the contracted level of load defined by the Agreement in effect as of September 20, 2001, and entered into consistent with the Commission's suspension decisions.

7. Section 5 of the proposed affidavit affirms that the customer understands that the Commission may conduct spot audits or other inquiries regarding the contractual volumes in the customer's contracts, and that the utilities may be required to provide certain information to the Commission.

8. Section 6 of the proposed affidavit requires that the customer acknowledge that it must take such actions as necessary to comply with existing DA-related decisions and requirements.

9. A minimum load per customer of annual demand over 500 kW provides a reasonable threshold for purposes of determining which DA customers must sign the affidavit.

Conclusions of Law

1. The affidavit to be adopted in this decision should conform with the load growth principles adopted in D.04-07-025, and should promote compliance with Commission decisions relating to the September 21, 2001 suspension of DA.

2. The affidavit format, as set forth in Appendix 1 of this decision, should be adopted to provide confirmation that load growth on existing non-continuous DA accounts does not result in customer's total load exceeding the contracted level of DA load defined by the terms of customer's DA service contract.

3. While the IOUs are not expected to review actual contracts, the IOUs should review the submitted affidavits and notify the Commission of any discrepancies between actual customer usage and the contract maximums stated in the affidavits.

4. DA customers should be required to verify actual contract volumes in the affidavit (or to affirm that contract volumes are determined on a "full requirements" basis) and to attest that all DA accounts do not exceed the contracted level of load defined by the Agreement that was in effect as of September 20, 2001.

5. The language in the affidavit, in Sections 4 and 5, should specifically reference the September 20, 2001 date since that date provides a straightforward standard for purposes of verification and is the key date upon which the Commission has relied in interpreting the suspension provisions of Water Code Section 80110.

6. The affidavit should contain language requiring the customer to retain and make available to the Commission, upon request, the Customer's agreement with the ESP, in effect on September 20, 2001, as well as any subsequent contract amendments, to the extent not previously inadvertently destroyed and currently not retrievable.

7. The requirement for the customer to provide the Commission a copy of the ESP contract for purposes of a spot audit should not be limited only to those instances where a dispute exists between the IOU and the customer regarding contract volumes.

8. In accordance with the requirements of D.04-07-025, a minimum load per customer should be established as a threshold for requiring DA customers to sign the affidavit, but there should not be a further limitation based upon whether a load growth trigger is met.

9. As prescribed in Public Utilities Code Section 2111, the Commission has the authority in cases of noncompliance with Commission rules to impose a penalty of not less than $500 dollars nor more than $20,000 for each offense.

10. DA customers that refuse or fail to comply with the Commission's affidavit requirements should be subject to sanctions and penalties as provided for in Public Utilities Code Section 2111.

11. The Commission has other remedies available, including contempt under Section 2113, and may do all things necessary to enforce the law and its decisions (Public Utilities Code Section 701).

12. D.90-12-121 requires the utilities not to release customer information to third parties without customer consent, or absent certain Commission-approved exceptions. Moreover, the ESP service agreement approved by the Commission already covers the protection of information marked as confidential and provided by an individual ESP to a utility.

13. As an additional measure to safeguard the confidentiality of volumetric contract data contained in the DA affidavit, access to any such confidential volumetric data should be restricted only to utility employees involved in checking affidavits for compliance with Commission requirements. The utility should be prohibited from disclosing any such volumetric data to other employees, including those involved in marketing activities.

ORDER

IT IS ORDERED that:

1. The affidavit form proposed in Attachment 4 of the Workshop Report, attached in Appendix 1 of this decision is hereby adopted for use in complying with the affidavit requirements of Decision 04-07-025.

2. Pacific Gas and Electric Company, Southern California Edison Company, and San Diego Gas & Electric Company shall coordinate the date on which affidavits are sent to customers and shall communicate the affidavit requirement to applicable customers within 60 days of the effective date of this decision.

3. Applicable customers receiving the affidavit shall have 60 days after receipt to complete and return the affidavit to the respective utility.

4. At the conclusion of the 60-day period, each utility shall file a report with the Commission within 30 days thereafter, identifying the number of customers contacted, the number of completed affidavit forms returned, and a listing of the customers that did not return or refused to sign the affidavit.

5. To the extent a Direct Access (DA) customer and/or Electric Service Provider believe that verification of contractual load volumes in the affidavit entails confidential information, they are authorized to execute a nondisclosure agreement with the utility to protect the confidentiality of such information.

6. If the utility is made aware of a load growth situation (for a customer with at least one DA account with demand in excess of 500 kW) due to a service upgrade (i.e., a service panel upgrade, a larger transformer, etc.) and the customer has not previously signed an affidavit, the customer shall be required to sign an affidavit.

7. The utilities shall include a statement in their affidavit transmittal letter concerning the Commission's authority and willingness to impose and enforce payment of penalties as prescribed in Section 2111 for DA customers that willingly refuse to comply with the adopted affidavit requirements, as well as other remedies as necessary.

8. The utility shall have the obligation to ensure that the forms and instructions are directed to the appropriate contact for each DA customer, and before a customer is listed as being out of compliance with the affidavit process, the utilities must send a second notice to those customers who have not responded ten days prior to the expiration of the initial 60-day period for compliance.

9. Access to any confidential volumetric data provided in a DA affidavit should be restricted only to utility employees involved in checking affidavits for compliance with Commission requirements. The utility shall be prohibited from disclosing any such volumetric data to other employees, including those involved in marketing activities. The list of designated utilities authorized to have access to confidential contract data shall be provided to each DA customer that provides such confidential contract data in its affidavit.

This order is effective today.

Dated March 17, 2005, at San Francisco, California.

Comr. Grueneich recused herself from
this agenda item and was not part of the

quorum in its consideration.

APPENDIX 1

Direct Access Customer Load Declaration for Customers with
at Least One Direct Access Account that Exceeds 500 kW in Demand

1. Customer Declaration

I, ______________________________________, state as follows:

1. I am an authorized representative of ______________________ ("Customer") and I am authorized to make this declaration.

2. I have personal knowledge of the matters set forth herein and if called upon as a witness could and would testify competently thereto.

3a. On or before September 20, 2001, Customer entered into an agreement for direct access (DA) service (Agreement) with the following Electric Energy Service Provider (ESP),
_____________________________________ for (check as many as apply):

3b. Customer currently has a valid agreement for DA service in effect with (check one):

4. Customer warrants that its total level of DA load on all DA accounts does not exceed the contracted level of load defined by the Agreement that was in effect as of September 20, 2001, and entered into consistent with the California Public Utilities Commission's ("Commission") DA suspension decisions.

5. Customer understands that the Commission may conduct spot audits or informal investigative inquiry, as it deems necessary, to deal with any potential disputes concerning the accuracy of Customer's claims concerning contractual volumes. Customer understands that the Utility may be required to provide information to the Commission regarding Customer's electricity service and consumption on all Customer's DA accounts, including but not limited to, the applicable meter, account numbers, and the associated DA load. Customer agrees to retain and make available, to the Commission, the relevant provisions of Customer's Agreement with ESP concerning contractual volumes, which was in effect as of September 20, 2001, as well as any subsequent DA agreements, to the extent not previously inadvertently lost or destroyed and currently not retrievable.

6. Customer acknowledges and agrees that it must take such actions as necessary to comply with existing DA-related decisions and requirements.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this __ day of ___________, ____ at _______________________, _____________________________ [city, state].

All customers with at least one DA account that exceeds 500 kW in demand shall execute this Direct Access Customer Load Declaration. This document may be submitted by fax, provided the originals are delivered to the Utility within 10 calendar days thereafter.

Previous PageTop Of PageGo To First Page