BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Application of)
FirstEnergy Corp. on Behalf of)
Ohio Edison Company, The)Case No. 99-1212-EL-ETP
Cleveland Electric Illuminating)Case No. 99-1213-EL-ATA
Company and The Toledo Edison)Case No. 99-1214-EL-AAM
Company for Approval for Their)
Transition Plans and for Authorization)
To Collect Transition Revenues.)
In the Matter of the Application of)
The Cincinnati Gas & Electric Company)Case No. 99-1658-EL-ETP
For Approval of its Electric Transition )Case No. 99-1659-EL-ATA
Plan, Approval of Tariff Changes and )Case No. 99-1660-EL-ATA
New Tariffs, Authority to Modify Current)Case No. 99-1661-EL-AAM
Accounting Procedures, and Approval)Case No. 99-1662-EL-AAM
To Transfer its Generating Assets to an)Case No. 99-1663-EL-UNC
Exempt Wholesale Generator.)
In the Matter of the Application of The)
Dayton Power & Light Company for)
Approval of its Transition Plan, for)Case No. 99-1687-EL-ETP
The Opportunity to Receive Transition)Case No. 99-1688-EL-AAM
Revenues, for Approval to Change)Case No. 99-1689-EL-ATA
Accounting Methods, and Approval to)
Amend its Tariff.)
In the Matter of the Applications of)
Columbus Southern Power Company)Case No. 99-1729-EL-ETP
And Ohio Power Company for Approval)Case No. 99-1730-EL-ETP
Of Their Electric Transition Plans and)
For Receipt of Transition Revenues.)
In the Matter of the Application of)
Monongahela Power Company dba)Case No. 00-02-EL-ETP
Allegheny Power for Approval of an)
Electric Transition Plan.)
COMMENTS OF
THE INDUSTRIAL ENERGY USERS-OHIO
REGARDING THE ISSUE OF SALES FOR RESALE
Samuel C. Randazzo, Esq.
Gretchen J. Hummel, Esq.
Kimberly Wile Bojko, Esq.
McNees, Wallace & Nurick
Fifth Third Center
21 East State Street, 17th Floor
Columbus, OH 43215
On Behalf of the Industrial
Energy Users – Ohio
1
{C06155:}
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Application of)
FirstEnergy Corp. on Behalf of)
Ohio Edison Company, The)Case No. 99-1212-EL-ETP
Cleveland Electric Illuminating)Case No. 99-1213-EL-ATA
Company and The Toledo Edison)Case No. 99-1214-EL-AAM
Company for Approval for Their)
Transition Plans and for Authorization)
To Collect Transition Revenues.)
In the Matter of the Application of)
The Cincinnati Gas & Electric Company)Case No. 99-1658-EL-ETP
For Approval of its Electric Transition )Case No. 99-1659-EL-ATA
Plan, Approval of Tariff Changes and )Case No. 99-1660-EL-ATA
New Tariffs, Authority to Modify Current)Case No. 99-1661-EL-AAM
Accounting Procedures, and Approval)Case No. 99-1662-EL-AAM
To Transfer its Generating Assets to an)Case No. 99-1663-EL-UNC
Exempt Wholesale Generator.)
In the Matter of the Application of The)
Dayton Power & Light Company for)
Approval of its Transition Plan, for)Case No. 99-1687-EL-ETP
The Opportunity to Receive Transition)Case No. 99-1688-EL-AAM
Revenues, for Approval to Change)Case No. 99-1689-EL-ATA
Accounting Methods, and Approval to)
Amend its Tariff.)
In the Matter of the Applications of)
Columbus Southern Power Company)Case No. 99-1729-EL-ETP
And Ohio Power Company for Approval)Case No. 99-1730-EL-ETP
Of Their Electric Transition Plans and)
For Receipt of Transition Revenues.)
In the Matter of the Application of)
Monongahela Power Company dba)Case No. 00-02-EL-ETP
Allegheny Power for Approval of an)
Electric Transition Plan.)
COMMENTS OF
THE INDUSTRIAL ENERGY USERS-OHIO
REGARDING THE ISSUE OF SALES FOR RESALE
On November 21, 2000, the Public Utilities Commission of Ohio (“Commission”) issued Entries approving the compliance tariffs in the electric transition plan cases of the Cincinnati Gas and Electric Company and FirstEnergy Corp. on behalf of Ohio Edison Company, The Cleveland Electric Illuminating Company, and The Toledo Edison Company, in which the Commission decided that the companies’ use of service provisions in the standard rules and regulations should be consistent with the Commission’s decision in In the Matter of Michael E. Brooks v. The Toledo Edison Company, Case No. 94-1987-EL-ATA (May 8, 1996). ("November 21, 2000 Entries"). In that case, the Commission ruled against restrictions on the resale or redistribution of electric service by a landlord to a tenant if the resale or redistribution occurs only on the landlord’s property, and the landlord does not operate as a public utility. In its November 21, 2000 Entries, the Commission indicated its intention to review this issue further and invited interested parties to submit comments regarding the issue of sales for resale and its Brooks decision in the context of Amended Substitute Senate Bill No. 3 (“Am. Sub. S.B. 3”) and electric restructuring by December 6, 2000, with reply comments due on December 13, 2000.
On November 22, 2000, the Commission issued an Entry in the electric transition plan cases of The Dayton Power and Light Company, the Columbus Southern Power Company and Ohio Power Company, and the Monongahela Power Company in which it afforded to interested parties the same invitation to comment on the issue of sales for resale, also by December 6, 2000, with reply comments due on December 13, 2000.
Below are the comments of the Industrial Energy Users-Ohio (IEU-OH”) regarding the issue of sales for resale.
As the Commission recognized in the entries cited above, it has previously ruled on tariff provisions prohibiting resale or redistribution of electricity to tenants. In the 1996 Order issued by the Commission in Brooks, the Commission ruled that resale or redistribution of electricity is lawful in landlord/tenant situations, notwithstanding tariff provisions that explicitly restrict resale and redistribution. Id.
When considering utility tariffs that prohibit or restrict the resale of electricity, the Commission determined a utility “has no valid right or interest in prohibiting or restricting electric service and related billing practices as they apply to the resale or redistribution of electrical service from a landlord to a tenant where the landlord is not operating as a public utility, and the landlord owns the property upon which such resale or redistribution takes place.” Id. at 13. The Commission continued, “since the company’s obligation to serve another facility ends at the landlord’s property line [the utility’s] power to prohibit or restrict electrical service between the landlord and tenants through the company’s tariff must also end at the landlord’s property line.” Id. at 16.
Furthermore, upon rehearing of the aforementioned Order, the Commission reaffirmed its prior decision. In the Matter of the Complaint of Michael E. Brooks v. The Toledo Edison Company, Entry on Rehearing, PUCO Case No. 941987-EL-CSS, at 5 (June 27, 1996). The Commission held that such resale or redistribution provisions in a utility’s tariff that prohibit or restrict resale or redistribution of electricity as it applies in landlord/tenant situations are so unreasonable as to be void. Id.
Subsequent to the Commission’s decision in Brooks, the General Assembly enacted Am. Sub. S.B. 3 that permits electric customers to select suppliers of generation services beginning January 1, 2001. Am. Sub. S.B. 3 also addresses resale of electricity, specifically stating:
(D)Beginning on the starting date of competitive retail electric service, no electric utility in this state shall prohibit the resale of electric generation service or impose unreasonable or discriminatory conditions or limitations on the resale of electric generation service.
Section 4928.40(D), Revised Code. Clearly, Am. Sub. S.B. 3 is entirely consistent with and amplifies the Commission’s prior findings on resale to prohibit restrictions across the board.
IEU-OH believes that any attempt to establish restrictions on resale and redistribution of electricity would not only be in violation of Section 4928.40(D), Revised Code, but would be largely counterproductive and detract from the important obligations of the Commission to effectuate the stated policies embodied in Am. Sub. S. B. 3. The Commission has a great deal of uncompleted work associated with achieving effective retail competition within the state during the market development periods defined under Ohio law. The timeframe to complete these tasks has been considerably shortened by electric transition plan stipulations accepted by the Commission.[1] For example, the Commission deferred acceptance of all utilities’ plans for independent operation of their transmission systems. Participation in a regional transmission organization that meets the statutory requirements of Section 4928.12, Revised Code, is mandated under the law. This is a critical task that must be completed sooner, rather than later, to facilitate the development of effective competition within the market development period.
In the face of these compelling and clearly required statutory obligations, IEU-OH questions why the Commission is even considering injecting itself into electricity resale or redistribution arrangements such as the literally tens of thousands of landlord/tenant relationships currently existing in Ohio absent a clearly compelling statutory requirement to do so, which does not exist. IEU-OH submits that, as a practical matter, any attempt to undo the Commission’s existing resale policies or ignore the plain meaning of Section 4928.40(D), Revised Code, would be largely futile and an unproductive drain on the Commission’s resources.
Based upon verbal comments by Commissioners regarding resale, it is apparent that some questions exist among Commissioners as to whether Commission certification of landlords engaged in a resale relationship with a tenant is required as a result of Am. Sub. S.B. 3.[2] IEU-OH submits that support for this conclusion does not exist within Am. Sub. S.B. 3., and perhaps, therefore, only derives from the Commission’s certification rules, or the overly-broad definitions of aggregation and aggregator contained therein:
“Aggregation” means combining the electric load of multiple customers for the purposes of supplying or arranging for the supply of competitive retail electric generation service.
“Aggregator" means a person who provides aggregation.
Rule 4901:1-24-02(B) and (C), Ohio Administrative Code.
IEU-OH believes that a logical extension of the Commission’s findings in the Brooks case can also be applied in the context of the Commission’s certification rules. The Commission’s findings in Brooks derived in part from the determination that the provisioning of electricity in a landlord/ tenant relationship did not give rise to public utility status for the landlord. IEU-OH would urge the Commission to similarly conclude that the provisioning of electricity in a landlord/tenant relationship does not give rise to aggregator status for the landlord.
If the Commission does not make this determination, it must be prepared to face the consequences of a finding that would trigger a certification requirement for tens of thousands of landlords within the state, and would probably make the “two truckload” FirstEnergy transition plan filing modest in retrospect. If the Commission seriously considers this option, which IEU-OH does not support, IEU-OH suggests the only practical way to implement this finding would be for the Commission to issue blanket certifications and a waiver of its certification filing requirements to all landlords concurrently.
WHEREFORE, IEU-OH respectfully requests that the Commission find, in accordance with its historical policy and the plain meaning of Section 4928.40(D), Revised Code, the resale or redistribution of electricity shall not be prohibited or restricted, consistent with IEU-OH's comments herein.
Respectfully submitted,
______
Samuel C. Randazzo, Esq.
Gretchen J. Hummel, Esq.
Kimberly Wile Bojko, Esq.
McNees, Wallace & Nurick
Fifth Third Center
21 East State Street, 17th Floor
Columbus, OH 43215
On Behalf of the Industrial Energy
Users – Ohio
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Comments of the Industrial Energy Users-Ohio Regarding the Issue of Sales for Resale was served upon the following parties of record this 6th day of December 2000, via electronic transmission, hand-delivery, or ordinary U.S. mail, postage prepaid.
______
Gretchen J. Hummel
1
{C06155:}
Arthur E. Korkosz, Esq.
Stephen L. Feld, Esq.
James W. Burk, Esq.
FirstEnergy Corp.
76 South Main Street
Akron, Ohio 44308
On Behalf of FirstEnergy Corp.
James B. Gainer, Esq.
Associate General Counsel
The Cincinnati Gas & Electric Company
139 East Fourth Street
Cincinnati, OH 45202
On Behalf of The Cincinnati Gas & Electric Company
Charles J. Faruki, Esq.
Paul L. Horstman, Esq.
Faruki, Gilliam & Ireland, PLL
500 Courthouse Plaza, SW
10 North Ludlow Street
Dayton, OH 45402
Athan A. Vinolus, Esq.
Associate Counsel
The Dayton Power & Light Company
MacGregor Park
1065 Woodman Avenue
Dayton , OH 45432
On Behalf of The Dayton Power & Light Company
Edward J. Brady, Esq.
Kevin F. Duffy, Esq.
Marvin I. Resnik, Esq.
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, OH 43215
Daniel R. Conway, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, OH 43215
On Behalf of Columbus Southern Power Co. & Ohio Power Co.
Gary A. Jack, Esq.
David R. Murphy, Esq.
Monongahela Power Company
Dba Allegheny Power
1310 Fairmont Avenue
Fairmont, WV 26554
On Behalf of Monongahela Power Company
Michael L. Kurtz, Esq.
Boehm, Kurtz & Lowry
2110 CBLD Center
36 East Seventh Street
Cincinnati, OH 45202
Mr. Denis George
Energy Manger
The Kroger Company
1014 Vine Street – G07
Cincinnati, OH 45202-1100
On Behalf of The Kroger Company
David F. Boehm, Esq.
Boehm, Kurtz & Lowry
Suite 2110 CBLD Center
36 East Seventh Street
Cincinnati, OH 45202
On Behalf of AK Steel Corp.
Janine L. Migden
Regional Director of Government Affairs
Enron Corp.
400 Metro Place North, Suite 310
Dublin, OH 43017-3375
On Behalf of Enron Energy Services, Inc.
Barry Cohen, Esq.
Colleen L. Mooney, Esq.
Evelyn Robinson, Esq.
David C. Bergmann, Esq.
John Smart, Esq.
Ann Hotz, Esq.
Dirken D. Winkler, Esq.
Eric B. Stephens, Esq.
Terry L. Etter, Esq.
Jennifer Utter Heston, Esq.
Office of Ohio Consumers' Counsel
10 West Broad Street, Suite 1800
Columbus, Ohio 43215-3485
On Behalf of the Office of Ohio Consumers’ Counsel
William M. Ondrey Gruber, Esq.
2714 Leighton Road
Shaker Heights, OH 44120
Harvey L. Reiter
McCarthy, Sweeney & Harkaway, P.C.
2175 Pennsylvania Avenue, N.W.
Suite 600
Washington, D.C. 20037
On Behalf of Citizen Power
Kerry Bruce, Esq.
City of Toledo
Dept. of Public Utilities
420 Madison Avenue, Suite 100
Toledo, OH 43604-1219
On Behalf of The City of Toledo
Sally W. Bloomfield, Esq.
Elizabeth H. Watts, Esq.
Amy Straker Bartemus, Esq.
Bricker & Eckler LLP
100 South Third Street
Columbus OH 43215
On Behalf of National Electrical Contractors Association & Ohio Mechanical Contracting Industry, Strategic Energy L.L.C., Columbia Energy Services Corporation and Columbia Energy Power Marketing Corporation, Exelon Energy, Mid-Atlantic Power Supply Association (MAPSA), Ohio Associated Builders and Contractors, Inc., PP&L EnergyPlus Co., LLC, and the Ohio Manufacturers’ Association
Cornell P. Carter, Director of Law
William T. Zigli, Chief Asst. Law Director
Ivan L. Henderson, Assistant Law Director
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
Anthony J. Garofoli, Esq.
Joe Hegedus, Esq.
Scott Simpkins, Esq.
Climaco, Lefkowitz, Peca,
Wilcox & Garofoli Col, LPA
9th Floor, The Halle Building
1228 Euclid Avenue
Cleveland, OH 44115
On Behalf of The City of Cleveland
Craig G. Goodman
President
National Energy Marketers Association
3333 K Street NW, Suite 425
Washington, DC 20007
On Behalf of National Energy Marketers Association
Joseph P. Meissner, Esq.
Legal Aid Society of Cleveland
1223 West Sixth Street
Cleveland, OH 44113
On Behalf of Western Reserve Alliance, Parkview Areawide Senior Citizens, Neighborhood Environmental Coalition, Cleveland Housing Network and Consumers League of Ohio (Citizen Groups)
Paul F. Forshay, Esq.
Keith R. McCrea, Esq.
Sutherland Asbill & Brennan
1275 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2415
Gregory K. Lawrence, Esq.
McDermott, Will & Emery
600 Thirteenth Street NW
Washington DC 20005
Amy Gold
Shell Energy Services Co., LLC
PO Box 4402
Houston, TX 77210
Langdon D. Bell, Esq.
Bell, Royer & Sanders Co., LPA
33 South Grant Avenue
Columbus, OH 43215-3947
On Behalf of Shell Energy Services Co., LLC
James J. Mayer, Esq.
Taft, Stettinius & Hollister
1800 Firstar Tower
425 Walnut Street
Cincinnati, OH 45202-3957
Thomas J. Russell, Esq.
Unicom Corporation
125 Clark Street, Room 1535
Chicago, IL 60603
On Behalf of Unicom Energy, Inc. and Unicom Energy Services, Inc.
Wanda M. Schiller, Esq.
Counsel
Strategic Energy LLC
Two Gateway Center
Pittsburgh, PA 15222
On Behalf of Strategic Energy LLC
Judith B. Sanders, Esq.
Bell, Royer & Sanders
33 South Grant Street
Columbus, OH 43215-3927
On Behalf of Strategic Energy L.L.C., Columbia Energy Services Corporation and Columbia Energy Power Marketing Corporation, Exelon Energy, Mid-Atlantic Power Supply Association (MAPSA), and PP&L EnergyPlus Co., LLC
Robert J. Chet
President
Local 270, UWUA, AFL-COI
4205 Chester Avenue
Cleveland, OH 44103
On Behalf of Local 270, Utility Workers Union of America, AFL-CIO
David Dulick, Esq.
Exelon Energy
2600 Monroe Boulevard
Norristown, PA 19403
On Behalf of Exelon Energy
Julia R. Bates, Esq.
Lucas County Prosecuting Attorney
Office of the Prosecuting Attorney
700 Adams Street, Suite 250
Toledo, OH 43624
On Behalf of The Board of Lucas County Commissioner
Glenn S. Krassen, Esq.
Arter & Hadden LLP
1100 Huntington Building
925 Euclid Ave.
Cleveland, OH 44115-1475
On Behalf of the Ohio Schools Council (Schools) and Cities of Brook Park & Eastlake
Richard L. Sites, Esq.
Staff Legal Counsel
Ohio Hospital Association
155 East Broad Street, 15th Floor
Columbus, OH 43215-3620
On Behalf of The Association for Hospitals and Health Systems (dba The Ohio Hospital Association (OHA))
Neighborhood Housing Services of Toledo, Inc.
704 Second Street
PO Box 8125
Toledo, OH 43605
On Behalf of Neighborhood Housing Services of Toledo, Inc.
John R. Doll, Esq.
Logothetis, Pence & Doll
111 West First Street, Suite 1100
Dayton, OH 45402-1156
On Behalf of Utility Workers Union of America Local No. 175
Cynthia S. Bogorad, Esq.
Scott H. Strauss, Esq.
David B. Lieb, Esq.
Spiegel & McDiarmid
1350 New York Avenue, NW, Suite 1100
Washington DC 20005-4798
On Behalf of UWUA Intervenors
Henry W. Eckhart, Esq.
50 West Broad Street, #2117
Columbus, OH 43215
On Behalf of Ohio Citizen Action, Safe Energy Communications Council –Ohio and Ohio Public Interest Research Group
Jodi M. Elsass-Locker, Esq.
Assistant Attorney General
Counsel for the Ohio Department of Development
77 South High Street, 29th Floor
Columbus, OH 43215
Maureen Grady, Esq.
369 South Roosevelt Avenue
Columbus, OH 43209
On Behalf the Ohio Department of Development, Neighborhood Housing Services of Toledo, Inc., and Montgomery County Prosecutor's Office
Joyce B. Link, Esq.
Bricker & Eckler LLP
100 South Third Street