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Conn. A.G. Asks DPUC to Rescind Consent Order with Positive Energy
April 1, 2011
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Connecticut Attorney General George Jepsen has moved for the Connecticut DPUC to rescind its consent order with Positive Energy Electricity Supply, alleging that the DPUC's order underestimates the number of injured customers, underestimates the losses per customer, and establishes an unworkable reimbursement program.
Positive Energy is reimbursing over 3,000 customers whose enrollments were delayed, to reflect the savings the customers did not experience due to the delayed enrollment (see 3/11).
Jepsen's main argument is that the DPUC erred in excluding a period of either 60 or 90 days (depending on the terms of the customer contract which informed the customer of the time it would take to start service) from the period of the "delayed" enrollment, and thereby excluded these 60 or 90 days from the days for which Positive Energy must make reimbursement.
However, although the comments are not entirely clear (and the copy filed on the DPUC docket system reflects a "tracked changes" version), a major tenet in Jepsen's argument appears to be that when an aggregator (or supplier) informs the customer (as Positive Energy did in some of the contracts) that service with the new electric supplier may take up to 60 days to be initiated, this is referring to when the customer actually sees the new competitive supply charges on the bill and not (despite the clear language) when competitive service is actually initiated.
The relevant Positive contracts stated that, "[e]lectricity supply will begin on the date that the utility successfully switches the Account which may take up to (60) days." Jepsen claims that, "[t]his language by its very terms describes the delay associated with utility switching electric suppliers at the next meter read and billing cycle," although it does no such thing, and Jepsen's interpretation, at best, appears liberal.
The language cannot be any more plain and provides (1) supply will begin the date that the utility successfully switches the account, and (2) this date may take up 60 days to occur. As written, the language does not state, or even imply, that the 60 days solely reflects the time it takes the utility to complete the transaction; rather, the language only specifies that the date the transaction will eventually be completed may be up to 60 days in the future
However, even if the AG's interpretation were granted, Jepsen's argument still suffers a weakness because Jepsen essentially argues that since switches are completed in the next billing cycle, the enrollment will be effective within 30 days.
Specifically, the AG says, "the 60 days does not refer to the period before which the rate change becomes effective. The customer is actually 'enrolled' and receiving its new electricity rate within 30 days of the execution of the contract, but does not see the rate change on its bill for almost 60 days because of its position in the billing cycle" (emphasis added).
However, this clearly ignores the switching window which closes before the customer's meter read. Although Connecticut has one of the most liberal switching windows, allowing suppliers to submit enrollments up to two business prior to the meter read, there will still be situations in which a switch cannot be completed within 30 days, as claimed by the AG (although it is unlikely there is any situation where a switch requires the full 60 days except for a supplier's own internal transaction scheduling).
For example, if a customer's meter read date is April 4, 2011, and a switch is submitted on April 1, 2011 by the supplier, the switch will not be completed on April 4 since it is less than two business days in the future. Under a standard 30 day billing cycle, the next meter read would be May 4, 2011, or more than 30 days in the future from the April 1, 2011 submission of the enrollment. Of course, billing cycles may also run "long", and exceed 30 days, due to either scheduled holidays or operational issues, making it even more common that switches are not completed within 30 days as suggested by the AG.
Aside from lengthening the billing period, weekends and holidays also push bask the last enrollment date prior to a meter read. In November, due to Thanksgiving, this can result in the normal two-day black-out period on enrollments for the next immediate meter read being extended to six days (two business days plus Thanksgiving, the day after Thanksgiving, and the weekend), again leading to situations where initiation of competitive supply takes more than 30 days.
Additionally, suppliers cannot submit an "enroll customer" transaction to the utility until any applicable right of rescission has lapsed. This may further prevent an enrollment from being submitted prior to the close of the switching window, leading to service taking longer than 30 days to initiate. In fact, a customer, by law, may not be, "enrolled and receiving its new electricity rate within 30 days of the execution of the contract," as the AG says shall occur, if the rescission period has not expired prior to the close of the switching window, because any enrollment submitted to meet the AG's 30-day enrollment requirement would contravene the express language of the supplier coordination tariff.
Aside from the issue of determining the actual "delay" that the customer experienced, the AG also objected to the consent order because it placed an affirmative obligation on customers to provide Positive Energy with usage information in order to receive reimbursement. "Requiring the injured customers to take any affirmative steps to receive their reimbursement is unreasonable and extraordinary," the AG said.
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