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IN THE SUPREME COURT OF OHIOi
Buckeye Energy Brokers, Inc.,
Appellant,
V.
The Public Utilities Commission of Ohioand Palmer Energy Company,
Case No. 2012-0668
On Appeal from the Public UtilitiesCommission of OhioCase No. 10-693-GE-CSS
Appellees.
MERIT BRIEF OF APPELLANT BUCKEYE ENERGY BROKERS, INC.
Matthew Yackshaw (0019252)(Counsel of Record)John S. Kaminski (0076971)Day Ketterer Ltd.Millennium Centre - Suite 300200 Market Avenue NorthP.O. Box 24213Canton, Ohio 44701-4213Telephone: (330) 455-0173Facsimile: (330) 455-2633myackshaw a day-ketterer.comjskaminski a,day-ketterer.com
Counsel for Appellant Buckeye EnergyBrokers, Inc.
JUL 2 3 701?vLttSkS UF l,0UR1
SUPREM,E COURT OF OHIO
Mike DeWine (009181)Attorney General of OhioWilliam L. Wright (0018010)Section Chief, Public Utilities SectionThomas McNamee (0017352)Devin D. Parram (0082507)180 East Broad Street, 6th FloorColumbus, Ohio 43215Telephone: (614) 466-4397Facsimile: (614) 644-8764william.wrightkpuc. state. oh.usthomas.mcnamee(c puc.state.oh.usdevin.parram(cilpuc.state.oh.us
Counsel fox Appellee The Public UtilitiesCommission of Ohio
M. Howard Petricoff (0008287)(Counsel of Record)Stephen M. Howard (0022421)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetColumbus, Ohio 43215Telephone: (614) 464-5414Facsimile: (614) 464-6350mhpetricoff2(vorvs. cornsmhowardgvorvs.com
JUL 2 5 2012
CLERK OF COURTSUPREME COURT OF OHIO
Counsel for Appellee Palmer Energy Company
TABLE OF CONTENTS
Pa es
TABLE OF CONTENTS ....................................................................................................... i
TABLE OF AUTHORITIES ................................................................................................. iv
STATEMENT OF FACTS ........................... ......................................................................... 1
ARGUMENT ......................................................................................................................... 7
Proposition of Law No. I:
A company that provides numerous broker services related to natural gassuch as assisting government entities in becoming certified governmentalaggregators by providing advice and/or templates for the process; preparingand/or reviewing documents which need to be filed by the PUCO to obtaincertification; dealing with both incumbent and potential suppliers on behalfof certified governmental aggregators by obtaining information, analyzinginformation, preparing requests for proposals, negotiating terms, andnegotiating contracts; helping to write or reviewing notices and press releasesin connection with aggregation efforts; providing customer support; preparingand/or reviewing quarterly and annual report filings with the PUCO; andassisting in recertification activities on behalf of certified governmentalaggregators, all of which are done in a highly competitive environment wherenumerous companies compete to perform those services for both governmentalentities and private businesses must be certified by the PUCO to provide suchservices ............................................................................................................................ 8
A. Natural Gas Certification Statute ............................................................... 8
B. The Evidence of Record Overwhelmingly Establishes that PalmerEngaged in Numerous Arranging or Arrangement Services Relatedto Natural Gas Prior to Obtaining Certif►cation ....................................... 10
Proposition of Law No. II:
A company that provides numerous broker services related to electricitysuch as assisting government entities in beconiing certified governmentalaggregators by providing advice and/or templates for the process;preparing and/or reviewing documents which need to be filed by the PUCOto obtain certification; dealing with both incumbent and potential supplierson behalf of certified governmental aggregators by obtaining information,analyzing information, preparing requests for proposals, negotiating terms,and negotiating contracts; helping to write or reviewing notices and press
TABLE OF CONTENTS (Cont'd.)
Pa es
releases in connection with aggregation efforts; providing customer support;preparing and/or reviewing quarterly and annual report filings with thePUCO; and assisting in recertification activities on behalf of certifiedgovernmental aggregators, all of which are done in a highly competitiveenvironment where numerous companies compete to perform those servicesfor both governmental entities and private businesses must be certified by
the PUCO to provide such services ............................................................................... 13
A. Electricity Certification Statute .................................................................. 14
B. Palmer Provided CRES prior to obtaining certification ......................... 15
Proposition of Law No. III:
There is no consultant loophole to the natural gas and electricitycertification statutes ....................................................................................................... 17
Proposition of Law No. IV:
Even if a consultant loophole existed in the natural gas and electricitycertification statutes (which is denied), activities and services such as thosedescribed in Propositions of Law Nos. I and II far exceed those of a mereconsultant ...................................................................................................................:.... 18
Proposition of Law No. V:
A party who has made numerous admissions to broker status prior toobtaining certification must be equitably and judicially estopped fromdenying its broker status during the pre-certification period ................................... 20
Proposition of Law No. VI:
It is erroneous and unfair to find that a complainant failed to meet its burdenof proof, especially where it is the PUCO's rulings on the discovery issuesand the trial subpoena that effectively prevented the complainant frompresenting all available evidence and thereby rewarding the respondentfor stonewalling of the discovery and trial process ..................................................... 25
CONCLUSION ...................................................................................................................... 26
CERTIFICATE OF SERVICE ..... ......................................................................................... 28
TABLE OF CONTENTS (Cont'd.)
APPENDIX Appx. Page
Notice of Appeal to the Supreme Court of Ohio(April 19, 2012) ..........................................................................................................A-001
Opinion and Order of the Public Utilities Commission of Ohio,Including Dissenting Opinion (November 1, 2011) ..................................................A-008
Entry on Rehearing of the Public Utilities Commission of Ohio(February 23, 2012) ...................................................................................................A-033
Entry on Rehearing of the Public Utilities Commission of Ohio(December 14, 2011) .................................................................................................A-049
R.C. § 4928.01 ..........................................................................................................A-053
R.C. § 4928.02 ..........................................................................................................A-060
R.C. § 4928.08 ..........................................................................................................A-062
R.C. § 4929.01 .................:........................................................................................A-063
R.C. § 4929.02 ..........................................................................................................A-066
R.C. § 4929.20 ..........................................................................................................A-068
Ohio Administrative Code, 4901:1-27-01(V) ..........................................................A-070
Complainant's Application for Rehearing (December 1, 2011) ................................A-071
Complainant's Memorandum of Law in Support of Application forRehearing (December 1, 2011) ..................................................................................A-077
The Random House Dictionary of the English Language, Second Edition,title page and p. 437 ...................................................................................................A-098
PUCO list of Competitive Retail Electric Providers-Brokers/Aggregators ...............A-100
PUCO list of Competitive Retail Natural Gas Suppliers-Aggregators/Brokers ........ A-115
iii
TABLE OF AUTHORITIES
Pa e sCASES:
Alternatives Unlimited-Special, Inc. v. Ohio Dept. ofEdn., 168 Ohio App. 3d 592,2006-Ohio-4779 (Ohio App. 10 Dist. 2006) .......................................................................... 21
Culgan v. Miller, C.A. No. 10CA0036-M, 2011-Ohio-4288(Ohio App. 9 Dist. 2011) ....................................................................................................... 21
Davis v. Wakelee, 156 U.S. 680 (1895) ................................................................................. 21
Doe v. Archdiocese of Cincinnati, 116 Ohio St.3d 538, 2008-Ohio-67,880 N.E.2d 892, ¶7 ................................................................................................................ 21
Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442 .......................................... 21
Hull v. Columbia Gas of Ohio, 110 Ohio St.3d 96, 2006-Ohio-3666 ................................... 20
In re Application of Columbus S. Power Co., 2011-Ohio-1788 ............................................ 17
Kessler v. Totus Tuus, L.L.C., 185 Ohio App.3d 240, 2009-Ohio-6376 . .............................. 21
New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808,149 L. Ed. 2d 968 (2001) ...................................:................................................................... 21
Ohio Consumers' Counsel v. Pub. Util. Comm., 125 Ohio St.3d 57,2010-Ohio-134 ....................................................................................................................... 7
Ohio Edison Co. v. Pub. Util. Comm. (1997), 78 Ohio St.3d 466, 678 N.E. 2d 922 ............. 8
Ohio State Bd. ofPharmacy v. Frantz (1990), 51 Ohio St.3d 143, 555 N.E.2d 630............ 21
Russell v. Fourth Natl. Bank (1921), 102 Ohio St. 248, 131 N.E. 726 .................................. 21
CONSTITUTIONAL PROVISIONS; STATUTES; REGULATIONS:
R.C. § 4903.13 ...........................................................................................................................7R.C. § 4928.01 ................. ..................................................................................................14, 15R.C. § 4928.02 ......... .............................................................................................................. 20R.C. § 4928.08 .................................................................................................................1, 7, 14R.C. § 4929.01 ....... ..............................................................................................................9, 10R.C. § 4929.02 ... .................................................................................................................... 20R.C. § 4929.20 .................................................................................................................. 1, 7, 8Ohio Administrative Code, 4901:1-27-01(V) ........................................................................ 10
iv
STATEMENT OF FACTS
On May 21, 2010, Complainant Buckeye Energy Brokers, Inc. ("Buckeye") filed its
Complaint against Respondent Palmer Energy Company ("Palmer"), asserting that Palmer
violated Ohio Revised Code (R.C.) 4928.08 because it failed to obtain certification from the
Public Utilities Commission of Ohio ("PUCO") to provide competitive retail electric service
("CRES") within the State of Ohio and violated R.C. 4929.20 because it failed to obtain
certification from the PUCO as a retail natural gas supplier. The Complaint was subsequently
amended to explicitly allege that Palmer was holding itself out as a broker to the electric and
natural gas industries even though it had not obtained appropriate certifications from the PUCO.
The case proceeded to a two day hearing before two PUCO attorney-examiners which
occurred on April 11 and 20, 2011. During that hearing, it was overwhelmingly established by
uncontroverted evidence that Palmer had been actively working in Ohio as a broker in both the
natural gas industry and the electricity industry for more than 10 years prior to seeking
certification from the PUCO to engage in such activities, which constitute clear violations of
R.C. 4928.08 and 4929.20.
A. Palmer Was a Retail Natural Gas Supplier (i.e., Broker) Prior to BecomingCertified.
Despite its claim that it was a mere consultant, there was an overwhelming amount of
evidence produced against Palmer at hearing showing that Palmer provided a host of competitive
services in the natural gas industry prior to obtaining certification to do so legally in September
2010. (Buckeye Exhibit ("Ex.") 27.)
1
Palmer's own president and majority owner (Mr. Mark R. Frye) provided the most
damning testimony about Palmer. (Transcript of Proceedings held April 11 and 20, 2011("Tr."),
p. 16.) Through his testimony, it was established that Palmer was intimately involved with
assisting numerous governmental entities in becoming certified governmental aggregators for
natural gas. (Tr., p. 28.) Palmer provided information and assisted the governmental entities
with the templates for the certification process and prepared numerous documents for filing with
the PUCO on behalf of the governmental entities, both prior to when they became certified
governmental aggregators and after certification was obtained for the governmental aggregators.
(Tr., pp. 28-30.) In order to provide those various competitive services, Palmer competed
against Buckeye and other brokers to provide those kinds of services to the governmental
entities. (Tr., pp. 82-3, 85-6.) In those cases where Palmer was the successful bidder to provide
those competitive services, Palmer then also dealt with the incumbent and potential suppliers of
natural gas on behalf of the governmental aggregators. (Tr., p. 32.) Palmer obtained information
from both the incumbent supplier and all potential suppliers on behalf of the govemmental
entities. (Tr., p. 32.) Palmer prepared Requests for Proposals that were issued to potential
suppliers after Palmer identified all potential suppliers. (Tr., pp. 18, 34-8.) Palmer then
analyzed the responsive bid information and provided recommendations about which of the
potential suppliers to select. (Tr., p. 39.) Palmer responded to req_uests for clarification and
questions received from potential suppliers. (Tr., pp. 38-9.) Palmer negotiated terms with the
suppliers. (Tr., p. 41.) Palmer also reviewed and negotiated contracts on behalf of the
governmental aggregators, including ensuring that all the correct technical pieces were in the
contract. (Tr,, pp. 43, 47, 64-5.) Palmer also admitted to writing and/or reviewing opt-out
letters, notices, and press releases, seeing that the right persons received them, that they were
2
docketed with the PUCO, and provided customer support. (Tr., pp. 50-4.) Palmer also either
prepared or assisted in preparing the quarterly and annual reports required from the
governmental aggregators and assisted or performed the recertification activities for the
governmental aggregators. (Tr., pp. 55-6.) Palmer collected and analyzed information on cost
savings and determined tactical and strategic direction of the marketplace, even devising hedging
strategies. (Tr., p. 49.) Indeed, we are not aware of a single broker service that Palmer did not
engage in during the precertification period on behalf of its various customers and clients.
Palmer provided all of these services for a wide range of entities, including a wide range of
governmental entities (counties, cities, and townships), such as the Cities of Toledo, Maumee,
Perrysburg, and school districts, libraries, and numerous industrial and commercial customers.
(Tr., pp. 57-65, 70, 75-6.)
In addition to actively engaging in the actual broker activities which make Palmer subject
to the PUCO certification requirements for the natural gas industry, Palmer also clearly admitted
and held itself out to the public on numerous occasions that it is, in fact, a natural gas broker.
Buckeye Ex. 2 is an example of Palmer's letterhead in which it clearly states that it holds itself
out to be a"natural gas broker". Palmer also promoted itself as a natural gas broker in its
website, a printout of which is in evidence as Buckeye Exs. 1, la, and lb. (Tr., p. 93.) Palmer
also admitted that it was a natural gas broker in its certification application. (Buckeye Ex. 3; Tr.,
p. 98.) Buckeye also admitted it by actively participating in trying to secure the contract under
the request for proposal for natural gas and electric aggregation program broker services that was
issued by Erie County in 2009. (Tr., pp. 305-6, 310; Buckeye Ex. 13.) Mr. Thomas Bellish,
president and owner of Buckeye, testified that he saw and heard Palmer representatives talk
about providing broker services and its experience in providing broker services at various
3
meetings with govemmental entities such as meetings of county commissioners. (Tr., pp. 303-
10; Buckeye Ex. 13.) In short, Palmer's own numerous admissions to broker status establish by
estoppel its status as a broker prior to obtaining certification.
Perhaps most damning of all is the fact that Palmer sought and obtained certification to
provide natural gas brokerage services from the PUCO after the Complaint was filed in this case.
(Buckeye Ex. 27; Tr., p. 17.) Palmer candidly admitted that it has provided no new or additional
services to its customers since obtaining that certification. (Tr., p. 18.) Of course, that is
because it was providing a full panoply of broker type services to its customers prior to obtaining
certification.
Numerous agreements which are in evidence in this case show that Palmer was receiving
substantial funds during the pre-certification period directly from natural gas suppliers as a result
of performing broker activities for its various customers prior to obtaining certification.
(Buckeye Exs. 7, 9, 15, 16, 17, 18, 19, 20, 21, 22, 23; Tr., pp. 25, 120.) The method of
compensation set forth in these agreements for Palmer is indisputably that of a broker. (See
Dissenting Opinion, pp. A-030-032.) Many of those agreements are only the most current
effective contracts and were preceded by other agreements not in evidence. (Tr., p. 118.)
Finally, there is no doubt that the natural gas industry is highly competitive, making all of
the services provided by Palmer competitive services. (Tr., pp. 82-3, 85, 223, 236-7, 303-10;
Buckeye Ex. 77.) There is plenty of direct competition between Palmer and other companies to
provide these services. (Tr., pp. 85-9, 145, 282.) Providing competitive services requires PUCO
certification.
4
B. Palmer Was an Electric Services Company (i.e., Broker) Who ProvidedCompetitive Retail Electric Services Prior to Becoming Certified To Do So.
If anything, the amount of evidence against Palmer as to its electric industry activities
and services exceeds the amount of evidence with respect to its activities in the natural gas
industry. (Buckeye Exs. 37-48, 50-59, 62-74.) Just as in the natural gas industry, there is
substantial evidence of record that Palmer had been providing substantial broker services in the
electric industry for its various clients since the certification laws were passed. Palmer's
President and owner (Mr. Mark R. Frye) admitted that Palmer assisted governmental entities in
becoming governmental aggregators for electricity and that Palmer provided templates for that
process. (Tr., pp. 173-189; Buckeye Exs. 59, 62, 64-74.) Palmer prepared and/or reviewed
documents for filing with the PUCO in order to obtain initial certification for the various
governmental entities. (Tr., pp. 29-30.) Palmer dealt with potential suppliers of electricity on
behalf of the governmental aggregators once they became certified. (Tr., p. 32.) Palmer
obtained and analyzed information from the incumbent suppliers concerning the consumers to be
covered in the govemmental aggregation program. (Tr., p. 39.) Palmer prepared and issued
requests for proposals to the potential suppliers it had identified. (Tr., pp. 18, 34-8.) Palmer had
substantial communications with the potential electricity suppliers concerning terms of sales and
service and engaged in negotiating those terms and trying to obtain the best available terms for
the prospective customers. (Tr., pp. 38-9, 41.) Palmer also negotiated the terms and negotiated
the contracts. (Tr., pp. 43, 47, 64-5.) Palmer helped write notices and press releases and
appeared at meetings to explain the governmental aggregation programs to both the
governmental entities and the public at large. (Tr., pp. 50-4.) Palmer assisted in providing
5
customer support. (Tr., pp. 50-4.) Once a governmental aggregation program was in place,
Palmer either wrote or reviewed the quarterly and annual reports required to be filed with the
PUCO. (Tr., pp. 55-6.) Palmer helped the governmental aggregators in recertification activities.
(Tr., pp. 55-6.) Palmer also was instrumental in obtaining extensions of the current electric
supply agreements. (Tr. pp. 158-9; Buckeye Exs. 51-57.) Palmer received documents from the
PUCO on behalf of its customers. (Tr., p. 202.) As in the case of natural gas, we are unaware of
any broker-type activity that Palmer did not engage in during the precertification period. It is
clear from all of these activities and services that Palmer was the quintessential electric broker at
all times during the precertification period since the certification requirements were in place.
In addition to the substantial oral testimony of Palmer's president and owner, there were
more than 30 Exhibits placed in evidence showing the heavy involvement of Palmer in assisting
its electricity customers during the precertification period to the present. (Buckeye Exs. 40-48,
50-59, 62-74.) As in the case of natural gas, Palmer received substantial fees from the electric
suppliers under numerous contracts that have been entered into unlawfully during the
precertification period. (Tr., pp. 12, 155.) At all times, Palmer was competing with Buckeye
and other companies to provide these services. (Tr., pp. 168, 303-5, 308.)
Finally, Palmer admitted that in its capacity as a broker for the Cleveland Municipal
School District it engaged in explicit broker negotiations with a prospective electric supplier on
at least one occasion prior to certification. (See testimony of Mark R. Frye filed on April 30,
2009 in Case No. 08-1238-EL-AEC (PUCO), pp. 1-3.)
C. The PUCO's Decision.
On November 1, 2011, the PUCO issued its Opinion and Order in a 4-1 decision. (Appx.,
p. A-008.) The majority of the PUCO Commissioners determined that Buckeye had failed to
6
sustain its burden of proving that prior to its certification on September 5, 2010, Palmer engaged
in activities as a provider of CRES and CRNGS without obtaining certification from the
Commission in violation of Sections 4928.08 and 4929.20 of the Ohio Revised Code. (Appx. at
A-028.) Commissioner Paul A. Centolella issued a dissenting opinion in which he stated that he
believed that Palmer should have sought earlier certification as an electric power broker and a
retail natural gas broker. (Appx., p. A-030.) The dissenting Commissioner found the nature of
Palmer's compensation paid in its numerous contracts with its customers (along with all other
evidence) clearly showed that Palmer was a broker rather than a mere consultant. (Appx., pp. A-
030-1.) This is because Palmer's compensation was contingent on the deliveries of electricity
and gas under successfully completed supply contracts. (Appx., p. A-03 1.)
On December 1, 2011, Buckeye filed a timely Application for Rehearing. (Appx., p. A-
071.) Initially, the PUCO unanimously granted the Application for Rehearing for further
consideration of the matters specified therein in its Entry on Rehearing entered December 14,
2011. (Appx., p. A-049.) Later, four of the five PUCO Commissioners issued an Entry on
Rehearing on February 23, 2012, which denied the Application for Rehearing. (Appx., p. A-
033.)
On April 19, 2012, Buckeye timely filed its Notice of Appeal of the adverse decisions
entered by the PUCO. (Appx., p. A-001.)
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
R.C. 4903.13 provides that a PUCO order shall be reversed, vacated, or modified by the
Supreme Court only when, upon consideration of the record, the Court finds the order to be
unlawful or unreasonable. Ohio Consumers' Counsel v. Pub. Util. Comm., 125 Ohio St.3d 57,
58, 2010-Ohio-134, ¶ 10. On questions of fact, the appellant bears the burden of demonstrating
7
that the PUCO's decision is manifestly against the weight of the evidence or that the decision is
so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of
duty. Id. at pp. 64-5 and ¶ 42. The Court has complete and independent power of review as to
all questions of law. Ohio Edison Co. v. Pub. Util. Comm. (1997), 78 Ohio St.3d 466, 469, 678
N.E. 2d 922.
As will be shown below, the PUCO's orders here are unlawful or unreasonable.
Furthermore, there is really no question of fact about what happened here, because the evidence
is largely undisputed. Thus, it is not necessary for the Court to reweigh the evidence before the
PUCO. However, to the extent that the Court believes that is the essence of this appeal, then
Buckeye has pointed to sufficient evidence in the record to demonstrate that the PUCO's
decision is against the manifest weight of the evidence or clearly unsupported by the record.
Proposition of Law No. I: A company that provides numerous broker servicesrelated to natural gas such as assisting government entities in becoming certifiedgovernmental aggregators by providing advice and/or templates for the process;preparing and/or reviewing documents which need to be filed by the PUCO toobtain certification; dealing with both incumbent and potential suppliers on behalfof certified governmental aggregators by obtaining information, analyzinginformation, preparing requests for proposals, negotiating terms, and negotiatingcontracts; helping to write or reviewing notices and press releases in connectionwith aggregation efforts; providing customer support; preparing and/or reviewingquarterly and annual report filings with the PUCO; and assisting in recertificationactivities on behalf of certified governmental aggregators, all of which are done in ahighly competitive environment where numerous companies compete to performthose services for both governmental entities and private businesses must becertified by the PUCO to provide such services.
A. Natural Gas Certification Statute.
The natural gas certification statute R.C. 4929.20 provides, in pertinent part, as follows:
... [No] retail natural gas supplier shall provide a competitive retail natural gasservice...to a consumer in this state without first being certified by the publicutilities commission regarding its managerial, technical, and financial capabilityto provide that service and providing reasonable financial assurances sufficient toprotect customers and natural gas companies from default.
8
This is one of the statutes which Palmer is charged with violating.
The natural gas certification statute implicates two relevant definitions:
(1) Who is a "retail natural gas supplier"?
(2) What is a "competitive retail natural gas service"?
Both are statutory terms that are defined elsewhere in R.C. Chapter 4929.
The definition for a "retail natural gas supplier" is found in R.C. 4929.01(N) and reads as
follows:
(N) "Retail natural gas supplier" means any person, as defined in section 1.59 ofthe Revised Code, that is engaged on a for-profit or not-for-profit basis in thebusiness of supplying or arranging for the supply of a competitive retail naturalgas service to consumers in this state that are not mercantile customers. "Retailnatural gas supplier" includes a marketer, broker, or aggregator, but excludes anatural gas company, a governmental aggregator as defined in division (K)(1) or(2) of this section, an entity described in division (B) or (C) of section 4905.02 ofthe Revised Code, or a billing or collection agent, and excludes a producer orgatherer of gas to the extent that such producer or gatherer is not a natural gascompany under section 4905.03 of the Revised Code.
In the context of this case, the key operative language is "arranging for the supply of a
competitive retail natural gas service" (emphasis added) because it is not contended that Palmer
was actually supplying the natural gas to consumers. However, Palmer was most definitely
"arranging" for the supply of competitive retail natural gas service. Palmer is also swept up in
the statutory definition by the word "broker" because Palmer most definitely was a broker.
The definition of "competitive retail natural gas service" (CRNGS) is also set forth in the
definitions section of R.C. Chapter 4929. It is set forth in R.C. 4929.01(J) and reads as follows:
(J) "Competitive retail natural gas service" means any retail natural gas servicethat may be competitively offered to consumers in this state as a result of revisedschedules approved under division (C) of section 4929.29 of the Revised Code, arule or order adopted or issued by the public utilities commission under Chapter4905 of the Revised Code, or an exemption granted by the commission underSection 4929.04 to 4929.08 of the Revised Code.
9
That definition leads the reader to the definition of "retail natural gas service", which is found in
R.C. 4929.01(M) and reads as follows:
(M) "Retail natural gas service" means commodity sales service, ancillary service,natural gas aggregation service, natural gas marketing service, or natural gas
brokerage service. (Emphasis added.)
The statute does not contain a definition of the term "natural gas brokerage service." Therefore,
we are left with determining and applying its plain meaning.
The Ohio Administrative Code (OAC) does define the closely related term "retail natural
gas brokerage service" in 4901:1-27-01(V) as follows:
(V) "Retail natural gas brokerage service" means assuming the contractual andlegal responsibility for the sales and/or arrangement for the supply of competitiveretail natural gas service to a retail customer in this state without taking title to thenatural gas.
Once again, the focus is on "arrangement" for the supply of CRNGS, which Palmer most
definitely did.
B. The Evidence of Record Overwhelmingly Establishes that PalmerEngaged in Numerous Arranging or Arrangement Services Relatedto Natural Gas Prior to Obtaining Certification.
Despite its claim that it was a mere consultant, there was an overwhelming amount of
evidence produced against Palmer at hearing showing that it "arranged" for the supply of
CRNGS by providing a host of competitive services in the natural gas industry prior to obtaining
certification to do so legally in September 2010. (Buckeye Ex. 27.)
Palmer's own president and majority owner (Mr. Mark R. Frye) provided the most
damning testimony about Palmer. (Tr., p. 16.) Through his testimony, it was established that
Palmer was intimately involved with assisting numerous governmental entities in becoming
certified governmental aggregators for natural gas. (Tr., p. 28.) Palmer provided information and
assisted the governmental entities with the templates for the certification process and prepared
10
numerous documents for filing with the PUCO on behalf of the governmental entities, both prior
to when they became certified governmental aggregators and after certification was obtained for
the governmental aggregators. (Tr., pp. 28-30.) In order to provide those various competitive
services, Palmer competed against Buckeye and other brokers to provide those kinds of services
to the governmental entities. (Tr., pp. 82-3, 85-6.) In those cases where Palmer was the
successful bidder to provide those competitive services, Palmer then also dealt with the
incumbent and potential suppliers of natural gas on behalf of the governmental aggregators. (Tr.,
p. 32.) Palmer obtained information from both the incumbent supplier and all potential suppliers
on behalf of the governmental entities. (Tr., p. 32.) Palmer prepared Requests for Proposals that
were issued to potential suppliers after Palmer identified all potential suppliers. (Tr., pp. 18, 34-
8.) Palmer then analyzed the responsive bid information and provided recommendations about
which of the potential suppliers to select. (Tr., p. 39.) Palmer responded to requests for
clarification and questions received from potential suppliers. (Tr., pp. 38-9.) Palmer negotiated
terms with the suppliers. (Tr., p. 41.) Palmer also reviewed and negotiated contracts on behalf of
the governmental aggregators, including ensuring that all the correct technical pieces were in the
contract. (Tr., pp. 43, 47 and, 64-5.) Palmer also admitted to writing and/or reviewing opt-out
letters, notices, and press releases, seeing that the right person received them, that they were
docketed with the PUCO, and provided customer support. (Tr., pp. 50-4.) Palmer also either
prepared or assisted in preparing the quarterly and annual reports required from the
governmental aggregators and assisted or performed the recertification activities for the
governmental aggregators. (Tr., pp. 55-6.) Palmer collected and analyzed information on cost
savings and determined tactical and strategic direction of the marketplace, even devising hedging
strategies. (Tr., p. 49.) Indeed, we are not aware of a single broker service that Palmer did not
11
engage in during the precertification period on behalf of its various customers and clients.
Palmer provided all of these services for a wide range of entities, including governmental entities
(counties, cities, and townships), school districts, libraries, and numerous industrial and
commercial customers. (Tr., pp. 57-65, 70, 75-6.)
Aside from engaging in the broker activities which makes Palmer subject to the
certification standards, Palmer also clearly admitted and held itself out to the public on numerous
occasions that it is, in fact, a natural gas broker. Buckeye Ex. 2 is an example of Palmer's
letterhead in which it clearly states that it holds itself out to be a "natural gas broker". Palmer
also promoted itself as a natural gas broker in its website which is in evidence as Buckeye Exs. 1,
la, and lb. (Tr., p. 93.) Palmer also admitted that it was a natural gas broker in its certification
application. (Buckeye Ex. 3; Tr., p. 98) Buckeye also admitted it by actively participating in
trying to secure the contract under the request for proposal for natural gas and electric
aggregation program broker services that was issued by Erie County in 2009. (Tr., pp. 305-6,
310; Buckeye Ex. 13.) Mr. Thomas Bellish, president and owner of Buckeye, testified that he
saw and heard Palmer representatives talk about providing broker services and its experience in
providing broker services at various meetings with governmental entities such as meetings of
county commissioners. (Tr., pp. 303-10; Buckeye Ex. 13.) In short, Palmer's own numerous
admissions to broker status establish its status as a broker prior to obtaining certification.
Perhaps most damning of all is the fact that Palmer sought and obtained certification to
provide natural gas brokerage services from the PUCO after the Complaint was filed in this case.
(Buckeye Ex. 27; Tr., p. 17.) Palmer candidly admitted that it has provided no new or additional
services to its customers since obtaining that certification, (Tr,, p. 19) Of course, that is because
12
it was providing a full panoply of broker type services to its customers prior to obtaining
certification.
Numerous agreements which are in evidence in this case show that Palmer received
substantial funds directly from natural gas suppliers as a result of performing broker activities for
its various customers. (Buckeye Exs. 7, 9, 15-23; Tr., pp. 25, 120.) Many of those agreements
are only the most current effective contracts and were preceded by other agreements not in
evidence. (Tr., p. 118.)
Finally, there is no doubt that this industry is highly competitive, making all of the
services provided competitive services. (Tr., pp. 82-3, 85, 223, 236-7, 303-10; Buckeye Ex. 77.)
There is plenty of direct competition between Palmer and other companies like Buckeye to
provide these services. (Tr., pp. 85-9, 145, 282.)
Given the record of this case, it was a gross error by the PUCO to fail to find that Palmer
was required to be certified to provide these services to its customers.
Proposition of Law No. II: A company that provides numerous broker servicesrelated to electricity such as assisting government entities in becoming certifiedgovernmental aggregators by providing advice and/or templates for the process;preparing and/or reviewing documents which need to be filed by the PUCO toobtain certification; dealing with both incumbent and potential suppliers on behalfof certified governmental aggregators by obtaining information, analyzinginformation, preparing requests for proposals, negotiating terms, and negotiatingcontracts; helping to write or reviewing notices and press releases in connectionwith aggregation efforts; providing customer support; preparing and/or reviewingquarterly and annual report filings with the PUCO; and assisting in recertificationactivities on behalf of certified governmental aggregators, all of which are done in ahighly competitive environment where numerous companies compete to performthose services for both governmental entities and private businesses must becertified by the PUCO to provide such services.
13
A. Electricity Certification Statute.
The certification requirements for electricity are found in R.C. 4928.08, which reads in
pertinent part as follows:
(B) No electric utility, electric services company, electric cooperative, orgovernmental aggregator shall provide a competitive retail electric service to aconsumer in this state on or after the starting date of competitive retail electricservice without first being certified by the public utilities commission regardingits managerial, technical, and financial capability to provide that service andproviding a financial guarantee sufficient to protect customers and electricdistribution utilities from default...
The definitions iinplicated here in the electricity certification statute are the definitions for
"electric services company" and "competitive retail electric service" (CRES).
The definition of "electric services company" is found in R.C. 4928.01(A)(9) and reads
as follows:
(9) "Electric services company" means an electric light company that is engagedon a for-profit. or not-for-profit basis in the business of supplying or arranging forthe supply of only a competitive retail electric service in this state. "Electricservices company" includes a power marketer, power broker, aggregator, orindependent power producer, but excludes an electric cooperative, municipalelectric utility, governmental aggregator, or billing and collection agent.
There are several things to note from the statutory definition that are relevant to this case. The
first is that "electric services company" includes someone who is "arranging" for the supply of a
competitive retail electric service (CRES). Thus, the term is explicitly not limited merely to the
supplier of electricity. Moreover, the statutory definition makes it clear that "electric services
company" is broadly drafted to include entities who are either a "power marketer"
broker."
power
The second definition relevant to the analysis is that of "competitive retail electric
service" ("CRES"). That definition is set forth in R.C. 4928.01(A)(4) where it provides:
14
(4) "Competitive retail electric service" means a component of retail electricservice that is competitive as provided under division (B) of this section.
That then leads one to the definition of "retail electric service" which is found in R.C.
4928.01 (A)(27) which reads as follows:
(27) "Retail electric service" means any service involved in supplying or
arranging for the supply of electricity to ultimate consumers in this state, from thepoint of generation to the point of consumption. For the purposes of this chapter,retail electric service includes one or more of the following "servicecomponents": generation service, aggregation service, power marketing service,power brokerage service, transmission service, distribution service, ancillaryservice, metering service, and billing and collection service. (Emphasis added.)
The particular part to note is that the word "any" is used in the definition which connotes and
denotes an expansive reading of the definition. Furthermore, the various service components
include such things as power brokerage service and power marketing service. All of those
services are explicitly included and were actually performed by Palmer prior to obtaining
certification in September 2010.
B. Palmer Provided CRES Prior to Obtaining Certification.
If anything, the amount of evidence against Palmer as to its electric industry activities
and services exceeds the amount of evidence with respect to its activities in the natural gas
industry. (Buckeye Exs. 37-48, 50-59, 62-74.) Just as in the natural gas industry, there is
evidence of record that Palmer has been providing substantial broker services for its various
clients since the electric certification law was passed. Palmer's President and owner admitted
that Palmer assisted governmental entities in becoming governmental aggregators for electricity
and that Palmer provided templates for that process. (Tr., pp. 173-189; Buckeye Exs. 59, 62, 64-
74.) Palmer prepared and/or reviewed documents for filing with the PUCO in order to obtain
initial certification for the various governmental entities. (Tr., pp. 29-30.) Palmer dealt with
potential suppliers of electricity on behalf of the governmental aggregators once they became
15
certified. (Tr., p. 32.) Palmer obtained and analyzed information from the incumbent suppliers
concerning the consumers to be covered in the governmental aggregation program. (Tr., p. 39.)
Palmer prepared and issued requests for proposals to the potential suppliers it had identified.
(Tr., pp. 18, 34-8.) Palmer had substantial communications with the potential suppliers
concerning terms of sales and service and engaged in negotiating those terms and trying to obtain
the best available terms for the prospective customers. (Tr., pp. 38-9, 41.) Palmer also
negotiated the terms and negotiated the contracts. (Tr., pp. 43, 47, 64-5.) Palmer helped write
notices and press releases and appeared at meetings to explain the governmental aggregation
programs to both the govemmental entities and the public at large. (Tr., pp. 50-4.) Palmer
assisted in providing customer support. (Tr., pp. 50-4.) Once a governmental aggregation
program was in place, Palmer either wrote or reviewed the quarterly and annual reports required
to be filed with the PUCO. (Tr., pp. 55-6.) Palmer helped the governmental aggregators in
recertification activities. (Tr., pp. 55-6.) Palmer also was instrumental in obtaining extensions
of the current electric supply agreements. (Tr. pp. 158-9; Buckeye Exs. 51-57.) Palmer received
documents from the PUCO on behalf of its customers. (Tr., p. 202.) As in the case of natural
gas, we are unaware of any broker-type activity in which Palmer did not engage in during the
precertification period. It is clear from all of these activities and services that Palmer was the
quintessential electric broker at all times during the precertification period since the certification
requirements were in place.
In addition to the substantial oral testimony of Palmer's president and owner, there were
more than 30 Exhibits placed in evidence showing the heavy involvement of Palmer in assisting
its electricity customers during the precertification period to the present. (Buckeye Exs. 40-48,
50-59, 62-74.) As in the case of natural gas, Palmer received substantial fees from the electric
16
suppliers under numerous contracts that had been entered into during the precertification period.
(Tr., pp. 120, 155.) At all times, Palmer was competing with Buckeye and other companies to
perform these services. (Tr., pp. 168, 303-5, 308.)
Finally, Palmer admitted that in its capacity as a broker for the Cleveland Municipal
School District, it engaged in explicit broker negotiations with a prospective electric supplier on
at least one occasion prior to certification. (See testimony of Mark R. Frye filed on April 30,
2009 in Case No. 08-1238-EL-AEC (PUCO), pp. 1-3.)
It was a gross error by the PUCO majority to fail to find that Palmer was required to be
certified to provide the competitive retail electric services that it actually provided.
Proposition of Law No. III: There is no consultant loophole to the natural gas andelectricity certification statutes.
Throughout this case, Palmer has taken the position that it was merely a consultant during
the precertification period and that consultants are not subject to the statutory certification
requirements provided by R.C. Chapters 4928 and 4929. This position is a patently incorrect
reading of the law.
First of all, the certification statutes themselves do not provide any consultant loophole.
There is no statutory basis for reading such a loophole into those statutes. The plain language of
a statute controls. In re Application of Columbus S. Power Co., 128 Ohio St.3d 512, 520, 2011-
Ohio-1788, ¶ 34. (". . . the Commission's creation of categories and classifications which are not
contemplated or discussed by the Revised Code ... is a result we do not believe the General
Assembly intended.")
The evidence of record in this case shows that during the rulemaking procedures related
to R.C. Chapters 4928 and 4929, Palmer was an active participant who advocated the inclusion
of an explicit consultant loophole in the Ohio Administrative Code provisions promulgated under
17
the certification statutes. (Buckeye Exs. 6, 38; Tr., pp. 101-2, 138-9.) Palmer's effort was
explicitly rejected by the PUCO. (Buckeye Exs. 5, 37; Tr., pp. 101-2, 138-9.) The PUCO made
it clear that no one, including Palmer, could self-label itself as a "consultant" and thereby avoid
the certification requirements of the statutes. Instead, the PUCO made it clear that it is the
activities actually engaged in by an entity that would matter in terms of whether one would be
subject to the certification requirements, not whether the entity calls itself a consultant.
The PUCO made that clear in both of its discussions of Palmer's rulemaking attempts to
create a consultant loophole when it said that if a so-called consultant performs aDy competitive
service, it would be subject to the certification requirements. (Buckeye Exs. 5, 37.) This was the
PUCO's way of saying that it did not matter whether an entity called itself a consultant or not. It
only mattered what the entity actually provides in the way of services. If it provides a
competitive service in either the natural gas or electric industries, then the entity is required to
follow the certification process. Unfortunately, the PUCO failed to apply this rule to the facts
presented by this case. Instead, the PUCO effectively recognized a consultant loophole in its
analysis of the record and determined that Palmer did not engage in activities beyond those of a
consultant even though there is no consultant loophole in the certification statutes.
Proposition of Law No. IV: Even if a consultant loophole existed in the natural gasand electricity certification statutes (which is denied), activities and services such asthose described in Propositions of Law Nos. I and II far exceed those of a mereconsultant.
Assuming for the moment that a consultant loophole does exist as to the certification
requirements (which Buckeye denies), it is very clear that Palmer did not act as a mere
consultant during the precertification period. There is no doubt that Palmer repeatedly referred
to itself as a consultant and encouraged other parties to refer to Palmer as a mere consultant
during the precertification period. However, that is not the end of the analysis, but only the
18
beginning of the analysis. This is because of how the PUCO explicitly dealt with Palmer's
claims for a consultant loophole from the certification requirements. The PUCO made it clear
that an entity merely labeling itself as a consultant was insufficient to avoid application of the
certification standards to that entity. The PUCO clearly stated that what mattered was what
services were provided by the so-called consultant and whether those services are competitive.
(Buckeye Exs. 5, 37.) Providing competitive services triggers certification even for those who
profess to be mere consultants like Palmer.
Because the word "consultant" is not mentioned let alone defined in the certification
statutes, we are left with determining the plain meaning of the term. The standard dictionary
definition of "consultant" provides that he/she is a person who gives professional or expert
advice. See The Random House Dictionary of the English Language, Second Edition, p. 437. A
copy is included in the Appx., p. A-099. It is overwhelmingly clear that Palmer did much more
than simply provide professional or expert advice during the precertification period. Palmer
actually did things for its clients. Palmer did not merely tell its clients what they should do.
Palmer performed a whole host of activities and services on behalf of its customers during the
precertification period. Palmer took numerous actions and provided numerous services to its
customers as set forth in detail above. Under the PUCO rulemaking applicable to R.C. Chapters
4928 and 4929, those activities and services make one responsible for seeking certification.
Palmer's own witnesses also corroborated that Palmer provided a complete list of competitive
broker services prior to September 2010. There is no reason for Palmer to be excluded from the
PUCO certification requirements.
19
If Palmer's consultant defense is allowed to prevail in this case, the Court should have no
doubt that every entity performing services and activities like Palmer will immediately start
calling themselves consultants in order to avoid certification and ultimately the jurisdiction of the
PUCOI. Like the proverbial "black hole", the consultant loophole will swallow up and defeat
the "arranging" part of the certification statutes so carefully and explicitly drafted by the General
Assembly. This would not be in keeping with the sense of the General Assembly which made it
a key point to require that those who were going to engage in the natural gas and electric
industries for profit (like Palmer) would have to seek certification and be under the jurisdiction
of the PUCO in order to engage in those industries. R.C. 4928.02 and 4929.02. The Court has
already held with respect to the natural gas certification statute that the statute gave the PUCO
certain authority and regulatory jurisdiction over governmental aggregators and retail natural gas
suppliers and marketers that did not unquestionably exist prior to the effective date. Hull v.
Columbia Gas of Ohio, 110 Ohio St.3d 96, 102, 2006-Ohio-3666, ¶35.
In contrast, ruling against Palmer here will simply mean that the sole long-time
recalcitrant broker will have to step up and do what all its numerous competitors already do-
become and remain certified. (Tr., pp. 282, 295.) The balance of equities and public interest
clearly favors finding against Palmer.
Proposition of Law No. V: A party who has made numerous admissions to brokerstatus prior to obtaining certification must be equitably and judicially estoppedfrom denying its broker status during the pre-certification period.
1 The PUCO's website,http://www puco ohio gov/apps/RegulatedCompanyList/index.cfin?IID=70, provides a current
list of certified aggregators/brokers. For the Court's convenience, we have printed the relevant
pages and attached them to the Appendix at pp. A-100-124.
20
The law is well-established in Ohio that a party may not assume contrary positions in
legal proceedings. A party that has maintained one position, or assumes a certain position, may
not thereafter contradict that position or assume a contrary position simply because his interests
have changed. Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 330, 2007-Ohio-6442, ¶25; Culgan
v. Miller, C.A. No. 10CA0036-M, 2011-Ohio-4288, ¶14 (Ohio App. 9 Dist. 2011); Alternatives
Unlimited-Special, Inc. v. Ohio Dept. ofEdn., 168 Ohio App. 3d 592, 606, 2006-Ohio-4779, ¶37
(Ohio App. 10 Dist. 2006)2. See also New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct.
1808, 149 L. Ed. 2d 968 (2001) ("Where a party assumes a certain position in a legal proceeding,
and succeeds in maintaining that position, he may not thereafter, simply because his interests
have changed, assume a contrary position . . ."), citing Davis v. Wakelee, 156 U.S. 680, 689
(1895). As Kessler v. Totus Tuus, L.L.C., 185 Ohio App.3d 240, 2009-Ohio-6376, ¶15 stated:
Equitable estoppel arises when there is a concern that a party has acted in such away that "equity will preclude him from averring anything to the contrary, aswhere another has been innocently misled into some injurious change ofposition." Russell v. Fourth Natl. Bank (1921), 102 Ohio St. 248, 269-270, 131N.E. 726. The doctrine precludes a person from denying his own acts oradmissions that were expressly designed to influence the conduct of another, anddid so influence such conduct, when such a denial will operate to injure another.Doe v. Archdiocese of Cincinnati, 116 Ohio St.3d 538, 2008-Ohio-67, 880 N.E.2d892, ¶7. In essence, therefore, "[t]he purpose of equitable estoppel is to preventactual or constructive fraud and to promote the ends of justice." Ohio State Bd. of
Pharmacy v. Frantz (1990), 51 Ohio St.3d 143, 145, 555 N.E.2d 630.
In this case, there are numerous instances where Palmer has made explicit admissions to broker
status to the public during the precertific'ation period which should conclusively establish its
status as a broker prior to obtaining certification in September 2010.
2 The Alternatives case was subsequently reversed, but not as to this particular holding.
21
The record of this case is full of examples of where Palmer held itself out to the public on
numerous occasions that it is, in fact, a broker. In its own website prior to obtaining any
certifications, Palmer described itself as "one of the first natural gas brokerage firms in the
country." (Emphasis added.) (Buckeye Ex. 1, p. 1.) On the very next page of its website,
Palmer says that its expert energy services include:
• Energy procurement, including buying, selling, and transporting
• Energy investment
• Customized energy management services
(Emphasis added.) (Buckeye Ex. 1, p. 2.) Then Palmer proceeds to say in its website that its
services include:
Energy Contract Negotiation for:
• Natural gas supply
• Interstate pipeline capacity
• Local utility delivery
• Electric purchase and sales
• Gas utility pipeline bypasses
(Emphasis added.) (Buckeye Ex. 1, p. 2.) Palmer said the very same things about itself at earlier
times on its we'osite. (Buckeye Exs. I-a, 1-b.)
It should be clear now that there is a real disconnect between what Palmer said at the
hearing in this case and what it told the world in its website prior to obtaining certification. This
is a gross inconsistency and discrepancy. Palmer cannot have it both ways. It cannot tell the
world fnat it is a broker and offer to perform broker-type services and then come into the PUCO
(and now before the Court) and say that it really does not do those things. This is just the kind of
22
conduct that either the PUCO or the Court as a last resort must prevent from occurring once it is
informed that such conduct is occurring.
Palmer's Certification Application Competitive Retail Natural Gas Brokers/Aggregators
filed with the PUCO on August 5, 2010, in Case No. 10-1082-GA-AGG, lists the following
examples of the principal's direct project experience prior to obtaining certification:
• Negotiated multiple electric contracts between companies, municipals, andutilities.
• Worked with governmental aggregation communities on third-party supplycontract extension, netting communities $5.4 million.
• Negotiated electric supply agreement for school group providing $6 million peryear in savings.
• Assisted in negotiations on special electric agreement saving $3.5 million over 3
years.
(Buckeye Ex. 3, p. 34.) The Application also noted the following examples of the other
principal's accomplishments:
• Negotiated flex rate with utility for customer wanting to increase service. Annualsavings equal to $30,000.
• Negotiated multi-year contract between utility and client resulting in a win-winproposition for both parties. Annual contract amount exceeded $1,250,000 a yearfor ten years.
• Negotiated additional resources for company resulting in higher quality andreliability with minimal impact on operations or accounting. Savings exceeded$50,000.
(Buckeye Ex. 3, p. 35.)
In other words, Palmer has brazenly touted its experience in providing broker services
and activities to the PUCO when it suited their purposes to obtain certification, but denies any
such activities to the PUCO (and the Court) when it does not suit their purposes, like defending
23
against this complaint proceeding. Such duplicity mocks the seriousness of both legal
proceedings.
Palmer's Certification Application for Aggregators/Power Brokers provides in pertinent
part:
Palmer Energy Company has been in the energy consulting business for 30 years.As an unbiased energy advisor to its clients, Palmer Energy will continue toperform rate and budget analyses, evaluate demand interval and consumptioninformation, review contracts, forecast future demand and consumption, author
Request for Proposal's, procure energy, and make alternative programrecommendations.
(Emphasis added.) (Buckeye Ex. 4, p. 25.) The referenced activities and services are all broker-
type services. The use of the word "continue" makes it clear that all of those services were
already being provided to Palmer's customers long before certification was sought or obtained.
Palmer itself states that it is a broker in the letterhead that it used during the
precertification period. (Buckeye Ex. 2.)
Palmer also admitted its broker status by actively competing against other companies like
Buckeye in trying to secure contracts under various requests for proposal (RFP) for natural gas
and the electric aggregation program broker services. One example of that was Palmer
responding to the RFP for broker services issued by Erie County in 2009. (Tr., pp. 305-6, 310.)
There was substantial testimony presented both in the prepared direct testimony of Mr. Thomas
M. Bellish, as well as in his live testimony before the PUCO in the hearing, where he testified
that he saw and heard Palmer representatives talk about providing broker services and Palmer's
experience in providing broker services at various meetings with govemmental entities such as
meetings of county commissioners. (Tr., pp. 303-10; Buckeye Exs. 13, 39, 77.)
But more importantly, the purpose of the Certification Statutes are to provide the public
with the assurance that companies that are engaging in competitive practices have been certified
24
by the state. An entity that is holding itself out to be a broker to the public, when it is not, is
committing the exact wrong that the Certification Statutes aim to guard against. At the very
least, Palmer is guilty of misleading the public by holding itself out to be a broker, when it was
not certified to do so. These admissions along with all the other activities and services
performed by Palmer make for an overwhelming case against Palmer.
In short, Palmer's own numerous admissions to broker status conclusively establish its
status as a broker and that it held itself out to the public as being a broker prior to obtaining
certification in September 2010. Therefore, Palmer is equitably and judicially estopped from
denying its broker status during the pre-certification period.
Proposition of Law No. VI: It is erroneous and unfair to find that a complainantfailed to meet its burden of proof, especially where it is the PUCO's rulings on thediscovery issues and the trial subpoena that effectively prevented the complainantfrom presenting all available evidence and thereby rewarding the respondent forstonewalling of the discovery and trial process.
The PUCO erred by finding that Buckeye failed to meet its burden of proof, especially
where it is the PUCO's rulings on the discovery issues and the trial subpoena that effectively
prevented Buckeye from presenting all of the available evidence and rewarded Palmer's
stonewalling of the discovery and trial process.
Assuming arguendo that Buckeye has not met its burden of proving that Palmer was
engaged in competitive brokerage services (which Buckeye denies), this is largely because the
PUCO granted a significant Motion to Quash in favor of Palmer on the eve of trial, which
significantly hampered Buckeye's ability to present certain evidence at trial. In light of this
erroneous decision, it is improper to hold against Buckeye the fact that they were not able to
produce enough evidence in support of its position. Buckeye was totally thwarted by the PUCO
itself from producing that evidence, although Buckeye believes that the existing record evidence
sufficiently establishes Palmer's violations of law.
25
Specifically, prior to trial, Buckeye requested the issuance of a trial subpoena upon Mark
Frye, president and majority owner of Palmer. The PUCO's Attorney Advisor issued the
subpoena, which in addition to compelling Mr. Frye's attendance and testimony at trial, required
him to bring a number of enumerated documents to trial. After the Attorney Advisor had already
issued the subpoena, Palmer filed a motion to quash arguing that Buckeye was requiring Mr.
Frye to bring with him documents that were not produced in discovery, and that this was nothing
more than an effort to extend the already-completed discovery process.
Buckeye responded by saying that the documents requested in Mr. Frye's subpoena were
within the scope of the original discovery requests, known to exist, and relevant to the case; yet
Palmer had continued to fail to produce the documents during discovery. The subpoena issued to
Mr. Frye was Buckeye's last opportunity to obtain this information and present it to the PUCO.
But the PUCO not only decided that it did not wish to see the documents, but now holds that fact
against Buckeye by stating that Buckeye has not produced sufficient evidence of Palmer's
competitive broker activities. That is wrong.
Additionally, it needs to be reiterated that the subpoena was issued to Mr. Frye by the
PUCO's Attorney Examiner. If the PUCO felt that there were issues with the scope of the
subpoena, a limiting ruling should have been made prior to issuing the subpoena - and not after
Palmer decided that it did not want to produce the documents.
In essence, it is the PUCO itself that caused any deficiencies in Buckeye's proof
(although Buckeye continues to believe that the existing record evidence sufficiently establishes
Palmer's violations of law).
CONCLUSION
For all the foregoing reasons, it is clear that the PUCO committed a grievous error
when it found that Palmer did not violate the certification statutes based upon the evidence of
26
record in this case. The record in this case clearly establishes that Palmer violated the
certification statutes for almost 10 years until it filed for certification after the Complaint was
filed in this case. This has resulted in many problems and prejudicial actions, and has done
violence to the consumer protection provisions of the statutory scheme established by the
General Assembly3. The PUCO must be ordered to enforce the certification statutes as
written and not be permitted to re-write and/or re-apply them in a different manner.
Accordingly, a reversal and remand to determine remedies for Palmer's unlawful conduct is
hereby requested.
Respectfully submitted,
Matthew Yackshaw (o 15,2.52)(Counsel of Record)John S. Kaminski (0076971)Day Ketterer Ltd.Millennium Centre, Suite 300200 Market Avenue NorthCanton, Ohio 44702Telephone (330) 455-0173Facsimile (330) 455-2633E-mail: myaclcshawgday-ketterer.com
iskaminski c^r day-ketterer.com
Counsel for Appellant Buckeye EnergyBrokers, Inc.
3 The legislative history establishes that the certification provisions are part of the consumerprotection provisions. Ohio Legislative Service Commission 123'd Senate Bill Analysis, Sub.S.B. 3, p. 28 ("The consumer protection provisions of the bill include provisions requiring PUCOcertification of suppliers . . .").
27
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing Merit Brief of Appellant Buckeye
Energy Brokers, Inc. was served upon the following by regular U.S. mail on this 20tl' day of July,
2012:
Mike DeWine (009181)Attorney General of OhioWilliam L. Wright (0018010)Section Chief, Public Utilities SectionThomas McNamee (0017352)Devin D. Parram (0082507)180 East Broad Street, 6"' FloorColumbus, Ohio 43215
Counsel for Appellee The Public UtilitiesCommission of Ohio
and
M. Howard Petricoff (0008287)Stephen M. Howard (0022421)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetColumbus, Ohio 43215
Counsel for Appellee Palmer Energy Company
Matthew Yackshaw/0q19252)
28
IN THE SUPREME COURT OF OIIIO
Buckeye Energy Brokers, Inc.,
Appellant,
V.
The Public Utilities Commission of Ohio andPalmer Energy Company,
Appellees.
Ohio Supreme CourtCase No.
Appeal from the Public UtilitiesComntission of Ohio
Public Utilities Commission of OhioCase No. 10-693-GE-CSS
NOTICE OF APPEAL OF APPELLANTBUCKEYE ENERGY BROKERS, INC.
Matthew Yackshaw (0019252)(Counsel of Record)John S. Kaniinski (0076971)Day Ketterer Ltd.Millennium Centre-Suite 300200 Market Avenue North1'O Box 24213Canton, Oliio 44701-42131'elephone: (330) 455-0173Facsimile: (330) 455-2633nvackshaw, Cdav-f<e1t'ercr.co_m
jskzimi nslc i;rrid av-ketterer.com
COUNSEL FOR APPELLANTBUCKEYE ENERGY BROKERS, INC.
cIr v(1LIRPj StIPRElVI4 COURT OF OHI)-`
Mike DeWine (0009181)Attorney General of OhioWilliam L. Wright (0018010)Section Chief, Public Utilities Sectiott180 East Broad Street, 6°i FloorColunzbus, Oliio 43215Telephone: (614) 466-4397Facsimile: (614) 644-8764william.wri =ht i.puc.state.oh.us
COUNSEL FOR APPELLEE THEPUBLIC UTILITIES COMMISSTON OFOHIO
Vorys, Sater, Seymour and Pease
M. Howard Petricoff (0008287)Stephen M. Howard (0022421)
s rnhoward(cbvot-ys.cotn
52 E. Gay StreetP.O. Box 1008Columbus, Ohio 43215Telephone: (614) 464-54I4Facsimile: (614) 719-4904mht) etricoff cucorvs-corn
CD
P
COUNSEL FOR APPELLEE PALMERENERGY COMPANY
A-®O1This ie to certify that the imnge© appearing ard araccurate and complete reproduction o[ a carie filedocument deli+rer d in taa regular courae,Q bua^}i
Tectiniciark 4 -Q/ at^e Procedeed,_ F^R 1 y ^^^i
NOTICE OF APPEAL OF APPELLANT BUCKEYE ENERGY BROKERS, INC.
Appellant Buckeye Energy Brokers, Inc. ("Appellant") hereby gives its notice of appeal
as of right, pursuant to R.C. 4903.11 and 4903.13, to the Supreme Court of Ohio and the
Appellees from the Opinion and Order entered on November 1, 2011 (Attachment A), and Entry
on Rehearing entered on Febn ary 23, 2012 (Attachnient B) of the Public Utilities Coinniission
of Ohio ("Commission") in PLJCO Case No. I0-693-GE-CSS.
Appellant was and is a party of record in PUCO Case No. 10-693-GE-CSS, and timely
filed its Application for Rehearing of the Commission's November 1, 2011, Opinion and Order
in accordance with R.C. 4903.10. Initially, the Commission granted the Application for
Rehearing in its Entry on Rehearing entered on Decernber 14, 2011. Later, Appellant's
Application for Rehearing was denied by the Commission's Entry on Rehearing entered on
Febivary 23, 2012.
The Commission's Opinion and Order entered on November 1, 2011, and the
Commission's Entry on Rehearing entered on Febr-uary 23, 2012, are unlawful and ur,ireasonable
for the reasons set out in the following assignments of error complained of:
I. The Com nission erred by detennining that Appellee Palmer Energy Compaiiy
("Palmer") was not a retail natural gas supplier that provided competitive retail natural gas
services ("CRNGS") prior to obtaining certification frorn the Commission in September 2010.
2. The Commission erred by finding that Palmer was not an electric services
company that provided competitive retail electrie service ("CRES") prior to obtaining
cei-tification in September 2010.
3. The CoiTn-riission erred by determining that there is a consultant loophole in the
statutory certif cation requirements provided by R.C. 4928 and R.C. 4929.
2 A-002
4. The Comniission erred in determining that Palmer qualified for the consultant
loophole to the statutory certification requirements, assuming that the consultant loophole exists.
5. The Commission erred by not holding Palmer to its public admissions that it was
a broker prior to obtaining certification in September 2010.
6. The Commission erred in failing to find and ignoring the substantial evidence
clearly establislring that Pahner was providing substantial broker services for its various clients
since the cenification laws were passed for years prior to obtaining certification from the PUCO.
7 The Commission exceeded its powers and jurisdiction in the Opinion and Order
by effectively creating a consultant loophole which is not provided for by the General Assembly
in either R.C. 4928.01 et seq. or R.C. 4929.01 et seq. (the "Certification Statutes").
3. The Commission's Opinion and Order is interrmally inconsistent in its
interpretation and application of the terms "competitive service" and "arranging" and its creation
of the consultant loophole.
9. The Commission attempts to define the activities of a consultant in its Opinion
and Order, despite admitting that the Cominission's rules contain an ambiguity relative to
distinguishing the activities of consultants and brokers.
10. The Commission attempted to define the activities of a consultant under its rules,
despite the fact that the Cotnniission's rules do not even contain the term consultant.
11. The Coinmission erred by finding that "arranging," as defined by the Certification
Statutes, must exceed the level of involvement of a consultant when that is not a referettce point
undei-the Certification Statutes.
12. The Cominission erred by using the actions of a consultant as a reference point for
what constitutes arranging, without any support under the Certification Statutes.
3 A-003
13. The Commission erred by finding that actions taken by a consultant and actions
that are competitive services are mutually exclusive, without any support under the Certification
Statutes.
14. The Conimission erred by excluding certain actions from the definition of
"arranging," including Palmer's admitted participation in the request for proposal ("RFP")
process on behalf of all its customers.
15. The Commission erred by failing to adequately consider the significance of the
mode of Palmer's compensation when determining that Patmer was acting as a consultant as
opposed to a broker -- a matter which was considered significant by Commission member
Centolella in his dissenting opinion.
16. The Commission erred by frnding that Palmer's numerous admissions that it is a
broker, wliich are contained in its website, its company letterhead, and its certification
application, are merely circumstantial evidence, as opposed to admissions against interest, which
are direct, conclusive and binding evidence establishiug Pahner's true broker status,
17. The Commission erred by finding that Palmer's 2010 applications for certification
were merely anticipatory of future actions, as opposed to a corrective measure designed to cut its
losses for its failure to follow the law and become certified in the past-
18. The Commission erred by firtding that Buckeye failed to meet its burden of proof
that Palmer was engaging in contpetitive services and arranging for the provision of CRES or
CRNGS prior to receiving its certification.
19. The Commission erred by finding that Btrckeye failed to meet its burden ofproof,
especially wliere it is the Commission's rulings on discovery issues and the trial subpoena that
effectively prevented Buckeye from presenting all of the available evidence and rewarded
Palmer's stonewalling of t7ie discovery and trial process.
4 A-004
WHEREFORE, Appellant respectfully submits that the Commission's Opinion and Order
entered on November 1, 2011, and the Commission's Entry on Rehearing entered on February
23, 2012, are unlawful, unjust, and unreasonable and should be reversed. The case should be
remanded to the Commission with instructions to correct the errors complained of herein.
Respectfully submitted,
Matthew Yackshaw (00Jolin S. Kaminski (007Day Ketterer Ltd.Millenniuni Centre-Suite 300200 Market Avenue NorthP.O. Box 24213Canton, Ohio 44701-4213Telephone: (330) 455-0173Facsimile: (330) 455-2633in vackshaw@Dd a v-ketterer. co1Tj skam inski (ilday-ketterer. com
Counsel for Appellant Buckeye EnergyBrokers, Inc.
5 A-®®5
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Notice of Appeal of
Appellant Buckeye Energy Brokers, Inc., was served by hand-delivery on the Chainnan or other
member of the Public Uti3ities Coinmission of Ohio or left at the Commission's office on April
19, 2012, and served by regular U.S. Mail, postage prepaid, on April 19, 2012 on the following:
Mike DeNT3ineAttomey General of OhioWilliam L. WrightSection Chief, Public Utilities Section180 East Broad Street, 6"' FloorColumbits, Ohio 43215Counsel for Appellee The Public Utilities Commission ofOhio
Todd A. Snitchler, ChainnanPublic Utilities Commission of Ohio180 E. Broad StreetColumbus, Ohio 43215
M. Howard Petricoff, Esq.Stephen M. Howard, Esq.Vorys, Sater, Seymour and Pease LLP52 E_ Gay StreetP.O. Box 1008Coluu-ibus, Ohio 43215Counsel for Appellee Palmer- Energy Conapany
Matthew Yackshaw (0019
Counsel of Record for Appellant Buckeye EnergyBrokers, Inc.
6 A-006
CERTIFICATE OF FILING
The undersigned hereby certifies that a copy of the foregoing Notice of Appeal of
Appellant Buckeye Energy Brokers, Inc., has been filed with the docketing division of the Public
Utilities Comtnission in accordance with Sections 4901-1-02(A) and 4901-1-36 of the Ohio
Administrative Code on April 19, 2012.
Matthew Yackshaw (001925
Counsel ofRecord forAppellant Buckeye EnergyBrokers, Inc,
y:A22092VIlohio supreme cowfooticc ofappealducx[4/18/12;ja1
7 A-007
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Complaint ofBuckeye Energy Brokers, Inc.,
Complainant,
v,
Palmer Energy Company,
Respondent.
Case No.10-693-GE-CSS
OPINION AND ORDER
The Commissiorx, considering the complaint, the evidence of record, thearguments of the parties, and the applicable law, hereby issues its Opinion and Order.
APPEARANC£S:
Day Ketterer Ltd. by Matthew Yackshaw, Millenniurn Centre, Suite 300, 200Market Avenue Iv'ortfi, Canton, Ohio 44701, on behalf of Buckeye Energy Brokeis, Irc.
Vorys, Sater, Seymous, and Pease, LLP, by M. Howard Petricoff, and Stephen M.Howard, 52 F.ast Gay Street, Columbus, Ohio 43215, on behalf of Palmer EnergyCompany.
OPINION:
1. INTRODUCTION
Pursuant to Certificate No, 00-002E(6), Buckeye Energy Brokers, Inc. (Buckeye orcomplainant) is a certified retail electric service (CRflS) provider authorized to provideaggregation and power broker services within the state of Ohio. Pursuant to CertificateNo. 02-006G(6), Buckeye is certified as a competitive retaIl natural gas service (CftNGS)aggregator/broker to provide retail naturaI gas aggregator/broker services in the stateof Ohio.
In its initial complaint fAed May 21, 2010, Buckeye alleged that Palmer EnergyCompany (Palmer or respondent) he2d itself out to be an aggregator of electric andnatural gas in the state of Ohio prior to becoming certified, resulting in Palmersuccessfully obtaining various contracts from public entities (i.e., counties, townships,
ATTACHMENT AA-008
10-693-GE-CSS -2-
incorporated areas) and from members of the public to provide electric and natural gasservices.
In the first count of its initial complaint, the complainant alleged that Palmer wasin violation of Section 4928.08, Revised Code, inasmuch as, despite the offering of CRFSas an electric services company, the respondent was not identified on the Commissiori swebsite listing of CRES providers as of the filing date of the complaint (May 21, 2010).
In the second count of its initial complaint, Buckeye alleged that Palmer was inviolation of Section 4929.20, Revised Code, due to the fact that, as of May 21, 2010, itfailed to obtain the required certification to be a CRNGS gas supplier in the state ofOhio.
As a result of Palmei s alleged failure to obtain the required certification as aCRES and CRNGS provider, Buckeye believed it should be entitled to the followingremedies! (1) recision of all of Paimer's contracts to provide CIZES and CRNGS withinthe state of Ohio; (2) restitution to all customers covered by those contracts, includingdarnages; (3) forfeiture to the state of Ohio for each violation; and (4) any other reliefthat may be proper or just.
On September 24, 2010, Buckeye filed a motion for leave to amend its complaintin order to incorporate the term "broker" in addition to the previously stated term"aggregator." The motion for leave to amend was granted pursuant to the attorneyexanuner Entry of January 18, 2011.
On June 9, 2010, Palmer filed its answer to Buckeye's initial complaint. OnOctober 5, 2010, Palmer filed its answer to Buckeye's amended complaint. Palmerdenied the majority of Buckeye s allegations and set forth a number of affinnativedefenses. For example, whi7e Palmer acknowledged that, as of the filing of thecomplaint, its name was not listed on the Corrmlission's website as a CRFS or CRNGSprovider, it contended that it was not required to obtain such certificatiorvs due to thenature of its business operations at that time. The respondent also submitted that, whileit did obtain its CRES and CRNGS certifications subsequent to the filing of the
complaint in this matter, it was not required to do so., Specifically, Palmer asserted thatit acted in the capacity of a consultant while working with local governments. Further,the respondent explained that, while it held aeency and/or power of attomey stat,1s forthe purposes of working with CRNGS suppliers, natural gas companies, andtransmission companies, it did not act independently of its principal. (Answer toAmended Complaint at 5.)
The CRES and CRNGS certification appttcations were filed on August 5, 2010, in Case Nos. 10-1081-EItAGG (10-1081) and 10-1082-GA-AGG ( 10-1082). Cerlificates 10-265E(1) and 10-194G(i) were issued onSeptember 8, 2010, and Sept2mber 15, 2010, respectively.
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Palmer fiied a counterclaim on June 9, 2010, alleging that Buckeye had engaged inpractices that were unfair, misleading, deceptive, or unconscionable relative to themarketing, solicitation, or sale of competitive retail services. Palmer submitted thatthese practices were in violation of Rules 4901:1-21-05(C), and 4901:1-29-05(C), OhioAdministrative Code (O.A.C.). Specifically, Palmer alleged that a representative ofBuckeye improperlv told the Sandusky County Commissioners that Palmer needed tobe certified by the Cornmission. Palmer asserted that these representations were untrue.Qune 9, 2010, Palmer Answer at 4.) Buckeye filed its answer to Palmer's counterclaimon June 24, 2010, denying these aliegations.
A settlement conference in this matter was held on September 10, 2010, in orderto explore the parties' willingness to negotiate a resolution of the complaint in lieu of anevidentiary hearing. On December 13, 2010, counsel for Buckeye filed a letter indicatingthat, despite the parties' efforts to enter into a stipulation of facts that would pernvt thiscase to be decided solely on the briefs, no such stipulation was agreed upon.
An evidentiary hearing was held in this matter at the offices of the Commissionon April 11, 2011, and April 20, 2011. Initial briefs and reply briefs were filed on May12, 2011, and May 23, 2011, respectively.
II. APPLICABLB LAW
The following statutory references provide the basis for determining whether anentity is a provider of CRES or CRNGS:
(1) Section 4928.01(A)(9), Revised Code, defines an electric servicescompany as:
[Ajn electric light company that is engaged on a for-profit or not-for-profit basis in the business ofsupplying or arranging for the supply of only acompetitive retail electric service in this state ...includes a power marketer, power broker, aggregator,or independent power producer, but excludes anelectric cooperative, municipal electric utility,governmental aggregator, or biJlirtg and colIectinnagent.
10-693-GE-CSS
(2) Section 4928.01(A)(27), Revised Code , defines retail electric serviceas:
[A]ny service involved in supplying or arranging forthe supply of electricity to ultimate consumers in thisstate, from the point of generation to the point ofconsumption ... retail eiectric service includes one ormore of the following "service components":generation service, aggregation service, powermark.etdng service, power i_hroke-rage service,transmission service, distribudon service, anciIlaryservice, metering service, and bi2Iing and collectionservice.
(3) Section 4928.01, Revised Code, defines comRetitive retail electricservice as:
[A] component of retail electric service tluit iscompetitive as provided under division (B) of thissection.
(4) Section 4929 01(N1 Revised Code defines a retail natural gassupplier as:
[Alny person ... that is engaged ... in the businessof supplying or arranging for the supply of acompetitive retaal natural gas service to consumers inthis state that are not mercantile customers. Retailnatural gas supplier includes a marketer, broker, oraggregator....
(5) Section 4929.01(tvtL Revised Code, defines retail natural gas serviceas:
[C]ommodity sales service, ancillary service, naturalgas aggregation service, natural gas marketingservice, or natural gas brokerage service.
(6) Section 4929.01(I), Revised Code, defines competitive retail naturalservice as:
[Alny retafl natural gas service that may becompetitively offered to consumers in this state as a
-4-
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10-693-GF C5S
result of revised schedules approved under division(C) of the Revised Code, a rule or order adopted orissued by the public utilities corrunission underChapter 4905, of the Revised Code, or an exemptiongranted by the commission under sections 4929.04 to4929.08 of the Revised Code.
(7)
(8)
Rule 4901:1-21-OI(BB), O.A.C., defines a "power broker" as:
[A] person certified by the commission, who providespower brokerage.
Rule 4901:1-21-01(CC), O.A.C., defines"power brokerage" as:
[AJssuming the contractual and legal responsibilityfor the sale and/or arrangement for the supply ofretail electric generation service to a retail customer inthis state withont taking title to the eleclric powersupplied.
(9) Rule 4901:1-27-01M, O.A.C., defines "retail natural gas marketing"service as:
[AJssuming the contractual and tegat responsibilityfor the sale and provision of competitive retail naturalgas service to a retail natural gas service customer inthis state and having title to natural gas at some pointduring the transaction.
(10) Rule 4901:1-27-OIM, O.A.Cj defines "retail natural gas marketer"
as:
[A] person who provides retail naturat gas marketingservice.
-s-
In order to provide CRES to consumers, an entity must be certified by theCorrunission pursuant to Section 4928.03(B), Revised Code. In order to provide CRNGSto consumers, an entity must be certified by the Commission pursuant to Section4929.20(A), Revised Code.
In accordance with Section 4928.10, Revised Code, Rule 4901:1-21-05(C), O.A.C.,states that no CRES provider may engage in marketing, soticitation, sales acts, orpractices which may be unfair, misIeading, deceptive, or unconscionable in fnemarketing, solicitation, or sale of a CRBS. Similarly, in accordance with Section 4929.22,
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10-693-GE-CSS -6-
Revised Code, Rule 4901:1-29-05(C), O.A.C., provides that no CRNGS provider mayengage in marketing, solicitation, sales acts, or practices which may be unfair,misleading, deceptive, or unconscionable in the marketing, solicitation, or sale of aCRNGS.
The complaint in this proceeding was filed pursuant to Sections 4928.16 and4929.24, Revised Code. The Commission notes that Section 4928.16, Revised Code,extends the Commission's jurisdiction under Section 4905.26, Revised Code, to CRESproviders. Additionally, Section 4929.24, Revised Code, extends the Corxunissiori sjurisdiction under Section 4905.26, Revised Code, to CRNG providers. Section 4905.26,Revised Code, provides, in relevant part, that the Commission will hear a case upon thefiling a complaint against any public utility that any service rendered is in any respectunjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation oflaw, or that any practice affecting or relating to any service or in connection with suchservice is unreasonable, unjust, unjustly discriminatory, or unjustly preferential. lncomplaint proceedings, the burden of proof lies with the complainant. Grossman v. Pub.LIh'1. Comm. (Z966), 5 Ohio St.2d 189. Therefore, it is the responsibility of Buckeye tapresent evidence in support of the allegations made in its complaint.
III. SUMMARY OF EVIDEN
Initially, the Comrnission notes that this complaint case was 6.led on May 21,2010, and amended on September 24, 2010. On September 8, 2010, and September 15,2010, Palmer was certified as a provider of CRES and CRNGS, respectively. Inconsidering Buckeye's allegations in this complaint, the Commission will only reviewthe activities of Palmer prior to the time it was certified to provide CRES and CRNGS.Accordingly, the question before the Commfssion is whether, during the time period atissue in this complaint, Palmer operated as a provider of CRFS and CRNGS withoutobtaining a certificate from the Comrnission, in violation of Sectlons 4928.08(B) and4929.20(A), Revised Code, respectively.
A. Buckeye's witnesses
1. Thomas M. Bellish
Thomas M. Bellish, an energy consultant and president of Buckeye, testified onbehalf of the complainant (Buckeye flx. 77 at 1). Buckeye is a certified broker of naturalgas and electricity in Ohio. Buckeye's responsibilities consist of bringing buyers andsellers together to transact the purchase and sale of natural gas and electricity (Tr. at266). According to Mr. Bellish, Buckeye is a competitor of Palmer and there areapproximately 90 other brokers and aggregators in the state of Ohio that are certified
(Id. at 281-283; Buckeye Ex. 77 at 4, 5).
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10-693-GE-CSS -7-
Mr. Bellish explained that, while an energy consultant represents an "umbrella ofservices" from brokering power and natural gas to conducting studies, implementingprojects, and working with companies to implement deregulated services, a broker ismore narrowly defined and refers to bringing a buyer and seller together for thepurchase and sale of natural gas or electricity (Tr. at 266, 267). Mr, Bellish stated that, ifa party is providing a competitive service, it must be certified by the Commission aseither a (1) supplier/marketer, (2) aggregator/broker, or (3) governmental aggregator(Buckeye Ex. 77 at 3). According to Mr. Bellish, if the coruultant is hired by a naturalgas aggregator, it must be certified as a CRNGS. If the consultant is hired by electricgoverrunental aggregator, it must be certified as a CRES. (Id. at 6.)
The witness defined a competitive service as:
A service such as energy procurement, negotiating rates,arranging for the supply of energy, writing, reviewing andsending requests for proposals, reviewing contracts, filingdocuments with the commission, advising governmentalaggregations, reviewing opt-out notices and mailing listsand meeting with suppliers and governmental aggregatorsat the same time, identifying gas/electric suppliers toconaumers, identifyin.g consumer load for gas electricsuppliers (sic) become contractuaIly obligated to find asupplier or consumer, enter into agreements that allowobtaining and compiling load data or biU.ing history of aconsumer for the purpose of seeking bids for consumers,selecting gas/electric suppliers for consumers or suppliers,sign contracts on behalf of either consumers or gas/electricsuppliers, act as or (sic) advising agent for either consumersor gas/electric suppliers making purchasing decisions, beinginvolved after a consumer and supplier agree on atransaction and paid by consumers and/or gas/electricsuppliers.
(Buckeye Ex. 77 at 4.)
Mr. Bellish testified that a cot:sultant loophole does not exist in the Comrnissionrules. He interpreted the Commission's March 30, 2000, Opinion and Order in Case No.99-1609-EL-ORD (99-1609), In the Matter of the Commission's Promuigatfon of Rules forCertification of Providers of C:ompetitive Retail E(ectrie Services, Pursuant to Chapter 4928,Reoised Code, to sign{fy that any consultant who performs a competitive service must becertified. (Tr, at 269.) In support of his position, Mr. Bellish stated that, in order toprotect the public, any individual perforrning a competitive service must be certified(Id. at 273, 274; Buckeye Ex. 77 at 7). According to the witness, an entity should be
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10-693-G&CSS -s-
certified if it is engaged in an activity for the purpose of completing an azrangementand receives a fee for the activity (Tr. at 291-294).
Further, Mr. Beliish explained that, despite Palmer presently being certified, theissue raised in the complaint is not moot. In particular, he stated that, because Palmerwas performing activities that require a person or entity to be certified by theConunission, there are certain penalties that should be imposed, including fines and therescission of contracts. Mr. Bellish also acknowledged that he previously informedpotentiai customers, whose business Palmer and Buckeye had both been competing for,that Paimer was required to be certified by the Commission. (Id. at 285.)
B. Palmer's witnesses
1. Mark R. Frye
Mr. Frye,2 president and majority owner of Palmer, testified at the hearing. He isinvolved in the day-to-day management and operation of the company (Tr. at 14-1$.).Mr. Frye explained that Palmer provides consulting services to a number of industrial,commercial, educational, institutional, and governmental clients regarding energyprocurement and utilization matters (Palmer Ex. 1 at 1). As a consultant, Paimer givesenergy advice and services to local governments and customers, In those situations inwhich Palmer has provided consulting services, it has done so in conjtl-Tiction with acertified aggregator and a certified competitive retail service provider (Id. at 5-6). Hestated that Palmer's typical duties are to work with government entities to developrequest for proposals (RFP) processes, issue the RFPs, and evaluate the variousproposals submitted to the enti6es. According to Mr. Frye, Palmer also estimates thesavings potential for consumers and makes recommendations to the communities (Id. at2-6; Tr. at 17-19).
In addition to developing RFPs for various cornmunities, Mr. Frye indicated that,
during the period of time in question, Palmer engaged in conversations with electedand adrninistrative officials in municipalities about the potential for governmentalaggxegation Specifically, Mr. Frye stated that, following the passage of Senate Bill(S.B) 3, several communities were interested in working together and implementinggovernmental aggregation for their communities and subsequently formed theNorthwest Ohio Aggregation Coalition (NOAC). (Id, at 21-27.)
' Mr. Frye offered prefiled direct teskimony on behalf of Palmer and was also ca(led as a witness as-on-cross for Buckeye. In ordez to avoid repetition and to provide en orderly and logical recitation of Mr.Frye's testimony, this summary includes both his prefiled direct testimony and his testimony at thehearing itself,
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10-693-GE-CSS -9-
Mr. Frye testified that Palmer consulted for the NOAC communities, as well asfor the County Conunissioners Association of Ohio (CCAO), providing informationabout rules and regulations concerning governmental aggregation, and the actionsneeded to be taken for the purpose of placing aggregation on the local ballot. If thelocal aggregation legislation ultfmately passed, Mr. Frye stated that, upon acommunity's request, Palmer would assist the community in obtaining Conunis.sioncertification. Mr. Frye noted that, on several occasions, Palmer has f311ed in parts of thecertification applications, but he assumed that the designated counsels and officialswould perform a review prior to the applications being submitted to the Commission.Once a community obtained Commission certifi.cation, Mr. Frye explained that Palmerwould contact various utilities and suppliers in order to gather data on behalf on thecommunity and then analyze and review the information to create recommendationsfor the community. (Id. at 30-34.)
According to the witness, at the request of a community aggregator, Palmerwould issue an RFP and then negotiate with potential suppliers to determine if a betterrate was available. Once a community ultimately chose a suppfier, the aggregator andthe supplier would work out the details of the contract, while Palmer would remain as aconsultant relative to technical issues associated with the agreement. Mr. Fryeexplained that the supplier agreements included an admini.straflve fee, a portion ofwhich would go to Palmer for its services. After the contracts were finalized, Palmerwould receive information from the suppliers on the savings results and would file theinformation with the Commission on behalf of the individual communities. (Id. at 38--49.) Additionally, Mr, Frye discussed the quarterly electric market monitoring reportsthat Palmer assisted the aggregator comrnunities to complete and file with theCommission. According to Mr. Frye, he completed the reports and electronicallysubmitted thein based on the data provided by the supplier. (Id. at 197-200.)
Once a community was certified as a governmental aggregator, Mr. Frye testifiedthat Palmer would review letters to residents of communities explaining the opt-outaggregation structure. In particular, Palmer's responsibilities were typically to reviewthe technical aspects of the letters. The community lists would also be checked byPalmer to ensure that the letters were onIy going to individuals within the community.(Id, at 50-51.)
In addition, Palmer cnrrently acts as a copsultant to Northeast Ohio PublicEnergy Council (NOPEC). Mr. Frye explained that Palmer's role is more limited withNOPEC, as the NOPEC communities are a council of governments working inconjunction with each other as a governmental aggregator. Specifically, Palmer'sconsulting duties for NOPEC include assisting with technical issues, pricing, savingsanalysis, and hedging decisions. D/tr. Frye also stated that a large portion of Palmer'sconsulting work in the last 18 months has been with the CCAO. In particular, Palmerhas met with elected officials and county representatives to evaluate a proposal to
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FirstEnergy Solutions (FES) to put governmental aggregation on the ballot. Palmer didnot create an RFP, but did assist in the bidding process. (Id. at 57-61.)
Mr. Frye testified that Palmer has also been hired by large commercial mercantileconsumers and industrial manufacturers to make recommendations on natural gas andelectric supply. Mr. Frye explained that Palmer assisted with the RFP process, andmade recommendations to the private entities about the proposed rates, terms, andconditions. The private entities would typically pay a flat fee for Palmer's services, but,on occasion, payments would be based on an hourly rate. (Id. at 75-85.) Thesemercantile customers include the Toledo Public School District and the Cleveland
Municipal School pistiice (Palmer Ex. 1 at 5). Mr. Frye explained that, inasmuch asschool districts do not have the ability to engage in government aggregation, thecorrsuiting services focused on recommendations of various suppliers following the RFPprocess, assisting in contract negotiations, and evaluating consumption needs for theindividual facilities. As an example of the typical consulti.ng process for the individualschool distxicts, Mr. Frye explained fhat, when the school groups were approached byFES, Palmer requested information from FES and then made recommendations to theschool groups. Mr. Frye stated that, prior to a contract being signed between the schooldistricts and the supplier, Palmer would assist with any technical ternu in the contract.Once the agreements were reached, Palmer no longer had any involvement in thecontract process. Mr. Frye explained there was no contract between Palmer and theschool groups. Rather, Palmer would be paid from affinity payment fees from thesupplier which would go to the school groups, with a portion of the fee going toPalmer. Mr. Frye also noted that Patmer has aLso performed consulting work for theToledo Lucas County Public Library. (Tr. at 63-75.)
Specific to the aIlegations set forth in this complaint regarding the provisioningof electric service, Mr. Frye asserted that, since the passage of S.B. 3 on October 4, 1999,Palmer has not held itself out to the public as an electric services company, including asa power marketer, power broker, aggregator, or independent power producer.Additionally, Mr. Frye denied that, since October 4, 1999, Palmer has engaged in thebusiness of supplying or arranging for the supply of only CftES so as to be a powermarketer, power broker, aggregator, or independent power producer. Mr. Frye alsodenied that, on or after October 4, 1999, Palmer assumed the contractual and legalresponsibility for the sale and/or arrangement for the supply of retail electricitywithout title to the electric power supplied. Further, with the exception of for its ownuse at facilities rented by Palmer, Mr, Frye denies that Palmer ever assumed thecontractual and iegal responsibility for the sale and/or arrangement for the supply of
' These customers were defined as customers that consume, other than for residential use, more than 500
thousand cubic feet (Mcf) of natural gas per year at a singL> location within the state of Olvo or thatConsume natural gas, other than for a residential use, as part of an undertaking having more than three
locations witfdn or outside Ohio.
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retail electricity with title to the electric power provided at some point during the
transaction on or after October 4,1999. (Palmer Ex. l at 1-3.)
Specific to the allegations set forth in the complaint regarding the provisioning ofnatural gas service, Mr. Frye asserted that, since the passage of House Bill (H.B.) 9 onJune 26, 2001, Palmer has not engaged in the business of supplying or arranging for thesuppIy of CRNGS to consumers in the state of Ohio that are not mercantile cnstomers.Additionally, Mr. Frye stated that, since the passage of H.B. 9, Palmer has notcontracted with customers to combine their natural gas load for purposes of purchasingCRNGS on an aggregated basis. Further, Mr. Frye submitted that, since the passage ofH.B. 9, Palmer has not engaged in the activity of assuming the contractual and legalresponsibility for the sale and/or arrangement for the supply of CRNGS to a retailcustomer without taking title to the natural gas. Mr. Frye also represented that, sinceJune 26, 2001, other than relative to its own use at facilities rented by Palmer for its ownbusiness purposes, the company has not engaged in the activity of assuming thecontractual and legal responsibility for the sale and provision of CRNGS to a retallnatural gas customer in Ohio and having title to natural gas at some point during thetransaction. (Id. at 3-4.)
Mr. Frye acknowledged that other entities, such as Buckeye, competed withPalmer for the purpose of receiving business from governmental entities. in part9cular,Mr. Frye recalled attending a meeting with Sandusky County officials in 2010, at whichat least one commissioner and several township trustees were present, as well as thecomplainant, Buckeye. (Tr, at 85.)
Finally, Mr. Frye acknowledged that Palmer fled an application to becomecertified as a CRES and a CRNGS broker and aggregator in August 2010. The witnessexplained that, although it does not need certification to serve as a consultant, it soughtthe certifications in the event that it decides to expand its role beyond that of being aconsultant and pursue the provision of CRES and CRNGS. (Palmer Ex.1 at 6-7.)
2. Leigh Herrington
Leigh Herrington, director of NOPEC, testified on behalf of Paimer. Mr.Herrington identified NOPEC is a regional councll of governments consisting of 133communities situated in northeast Ohio. NOPEC is certified by the Commission as anelectric and natural gas governmental aggregator. According to Mr. Herrington,NOPEC has retained Palmer as an energy consuttant to provide services such astestifying in energy proceedings, making natural gas price and basis recommendations,assisting in energy contractual matters, maintaining a 12-month weighted averagenatural gas pricing, making electric supply and analysis determinations, and producingpower pricing evaluations, (Palmer Ex. 2 at 24.)
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Mr. Herrington explained that Palmer serves as a resource to answer hisquestions and that he typically utilizes Palmer four to five times a month. Specifically,Mr. Herrington stated that Palmer provides advice to NOPEC regarding the natural gasmarketplace, including whether NOPEC should or should not buy natural gas. Mr.Herrington notes that Palmer has made modifications to NOPEC's hedging policies,including partial purchases of natural gas. (Tr. at 219-227.)
3. Larry L. Lon
Larry L. Long, executive director of CCAO, testified on behalf of Palmer.According to the witness, CCAO represents Ohio's boards of county commissionersand executive councils. Mr. Long explained that CCAO has retained Palmer as aconsuItant regarding energy matters for the last four years. In particular, Palmer hasassisted counties with electric and natural gas aggregation, specifically advising onquestions relating to opt-out options. Mr. Long explained that Paimer's assistance hasallowed counties to become better informed on energy issues, such as reducing energycosts and the implementation of conservation measures. In response to an inquiry froma CCAO member county, CCAO will advise the county that Paimer provides advisoryservices to the organization. A CCAO staff member and a Palmer representative willthen go to the specific county to discuss options and procedures pertaining to theservices in question. (Palmer Ex, 3 at 1-2; Tr. at 232-235.)
IV. PARTIES' LFGAL ARGUMENTS
A. Count I - Palrner is in violation of Section 4928.08(B), Revised Code,which requires that an,y e(ectric services compan^ defined inSections 4928.02{A}(9`land 4929.08. Revised Code, obtaincertification to provide CRES within the state of Ohio. As a resultof this alleged violation. Buckeye Energy seeks (1) the recession ofall of the resnondent's contracts to provide CRFS within the state ofOhio, (2) restitution to all customers covered by those contracts,including damag,,es and (3) the payment of forfeitures for eachviolation.
B. Count 11 - Palmer is in violation of Section 4929 2D Revised Codewhich requires certification of a natural ag s sitpplier and retailnatural eas sunplier As a result of this alleged violation BuckeyeEnergy seeks (1) the recession of all of the respondent's contracts to^rovide retail natural gas services within the state of Ohio, (2restitution to a)1 customers covered by those contracts, includinedamages and (3) the payment of forfeitures for each violation.
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1. Buckeve's legal arguMen
Buckeye contended that Palmer's activities prior to its certification as a CRES andCRNGS provider constitute brokerage activities; thus, requiring that Palmer shouldhave been certffied for these activities during the time period at issue in the complaint.Specifically, Buckeye aileged that the respondent's conduct in the course of its businessfrom the time of the passage of S. B. 3 in 2000 and H.B. 9 in 2001 through its certificationsin September 2010 indicate that Palmer was a retail natural gas supplier and electricservices company requiring certification by the Conutussion. (Buckeye Br. at 1-2.)
With respect to Palmer's electric activities, Buckeye focused on the definitions ofan electric services company and retail electric service, which are defined in Sections4928.01(A)(9) and 4928.01(A)(27), Revised Code, respectively. In particular, Buckeyehighlighted that the retail electric service definition utilizes the language "any service"and encompasses "power brokerage service," "ancillary service," and "powermarketing service," The complainant submitted that all of these services were actuallyperformed by Palmer prior to its CRES certification in September 2010. (Id. at 4-5.)
With respect to Palmer's naturaf gas activities, the complainant focused on thedefinitions of retail natural gas supplier and retail natural gas service, pursuant toSections 4929,01(M) and (N), Revised Code, respectively. In particular, Buckeye notedthat a retail natural gas supplier encompasses anyone in the business of arranging forthe supply of a CRNGS service to consumers and, specifically, includes a"marketer;'"broker;" and "aggregator." Additionally, Buckeye noted that, in accordance with Rule4901:1-27-01(V), O.A.C., a retail natural gas brokerage service means assuming thecontractual and legal responsibility for sales and/or arrangement for supply ofcompetitive natural gas. (Id. at 2-3.)
Buckeye opined that Palmer falls under the classification of a retail natural gassupplier as it arranged for the supply of CRNGS during the time frames set forth in thecomplaint. Relative to the statutory language pertaining to the °arrangirig" of thesupply of CRNGS, Buckeye submitted that there were numerous examples of arrangingor arrangement services offered and performed by Palmer prior to obtainingcertification, As examples, Buckeye pointed out that Palmer:
(1)
(2)
Assisted government entities to become certified governmentalaggregators or recertified as governmental aggregators byproviding advice and/or templates used in the aggregatorcert.ificarion process.
Prepared and/or reviewed documents that were filed with theCornmission in order to become certified.
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(3) Dealt with incumbent and potential suppliers on behalf ofgovernmental aggregators by obtaining and analyzing data relatedto the issuance of RFPs.
(4) Negotiated terms and contracts, helped write or review notices orpress releases in connection with the governmental aggregationprograms, filed notices and press releases, and prepared orreviewed quarterly and annual report filings with the Commission
(Id. at 3-4; Tr. at 32.)
Buckeye also identified several scenarios in which it believes Palmer acted as abroker and held itself out to the public as such. First, it pointed to Palmer's letterheadfrom May 8, 2002, which referenced "energy consuItation, natural gas brokerage, andelectrical rate management." (Buckeye Ex. 2, Tr. at 95-96) Next, it referenced Palmer'swebsite as it existed on May 21, 2010, in which the company described itself as "one ofthe first natural gas brokerage firms in the county" (Buckeye Exs. 1, 1-a, 1-b; Tr. at 95).Buckeye stated that the activities identified on Palmer's website, prior to it beingcertified by the Conmtission, denote that it was engaged in broker activities. Buckeyepointed out that Palmer indicated that its energy services included energy procurement,which encompassed buying, seiling, and transporting; energy investment; energycontract negotiation for natural gas supply, interstate pipeline capacity, local utilitydelivery, electric purchase and sales, and gas utility pipeline bypasses. (Buckeye Ex. Iat 2.)
As further support for its position, the complainant cited the testimony ofBuckeye witness Bellish, reflecting that he witnessed a Palmer representative discussbroker services at a meeting with Sandusky government officials in January 2010 (Tr. at303-310). Buckeye also relied on testimony of Mr. Bellish regarding the existence ofcompetiti on between the complainant and Buckeye in Lucas, Medina, and Erie counties,Ohio for the provi,sion of energy procurement services, including, but not limited to,arranging a power supply, negotiating rates, assisting in the certification process,assisting with the ballot process, and collecting load data. (Tr. at 305-306.)
Buckeye considered that Palmer's application filed on August 5, 2010, requestingauthority to provide natural gas brokerage service, (10•1082) to be self-incrimir,ating,inasmuch as it was filed after the commencement of this complaint. In addition,
Buckeye noted Palmer's admission that it has provided no new or additional se:-vices toits customers since obtaining certification. (Buckeye Br. at 9, citing Buckeye Exs. 27, 65;
Tr, at 17.)
Buckeye asserted that there is little doubt that Palmer is more than simply aconsultant. In support of its posi6on, Buckeye referenced the language in the
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Commission's March 30, 2000, Finding and Order at 3, 99-1609, wherein theCommission stated, in response to Palmer's recommendation that consultants beexcluded from the certification rules:
[T}hese rules do not contemplate certifying consultants, but ... are notintended to list the entities that are not covered by the rules.... if anapplicant will rely on consultants or contractors to meet variousrequirements in these rules, the applicant may be required to provideevidence that the coruultant or contractor can meet the requirements.Further, if a consultant or contractor performs any competitive service, itmust be certified.
Buckeye opined that the language of the Commission s order in 99-1609 waswritten to prevent situations such as the one presented in this case. Buckeye interpretedthe Cotnmissiori s language as being very clear that an entity labeling itself as aconsultant, but performing competitive services, must be certified. In support, Buckeyepointed to the activities and services Palmer provided in a competitive marketplace.Buckeye asserted that, if the Comrnission accepts Palmer's position in this case, aconsultant loophole would be created, and marty entities performing competitiveservices could avoid certification. (Buckeye Br. at 12-13.)
Regarding Palmez's assertion that there has been no demonstration of harm tothe public, Buckeye responded that actual public harm is not a prerequisite for thepurpose of satisfying the natural gas or eiectricity certification statutes. Rather,according to Buckeye, "it can and must be argued that violating a clear legal obligation... causes inherent harrn to the public" (Buckeye Reply Br, at 2). Buckeye stated that it isimportant that entities, such as Palmer, be certified because they are relied upon bygovernmental aggregators, which are not professionals in the energy industry (Id. at 9,10). Further, Buckeye pointed out that Palmer is actively competing against otherbroker entities, such as Buckeye (Id. at 6).
2. Palmer's legal argt.rments
Palmer asserted that it has not held itsetf out to the public as a power marketer,broker, aggregator, or independent power producer during the time frames addressedin the complaint. SpecificaLy, Pa?mer stated that it has never engaged in the business ofsupplying or arranging for the supply of CRFS in the state of Ohio. Further, Palmerrepresented that it never assumed the contractual and legal responsibility for the saleand/or arrangement for the supply of retail electricity with or without title.Additionally, Palmer stated that it did not act or hold itself out to the public as aCRNGS supplier and never engaged in the business of supplying or azranging for thesupply of CR-NGS to consumers in this state that are not mercantile customers. (PalmerBr, at 20-21, citing Palmer Ex. 1 at 2-3.)
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Specific to its actual operations, PaEmer stated that it has been providing energyand utility coruulting services for more than 20 years to numerous governmenta]bodies, as well as industrial and commercial customers, through the offering of adviceon energy markets and energy purchasing strategies (Palmer Br. at 1). According tothe respondent, these consulting services inctuded the development of an RFP process,the issuance of an RFP, and the evaluation of the various responses to the 12B'P. As partof its offered services, Palmer requested information from utilities so that the RFPprocess could be improved. (Id. at 7-8.) Palmer also estimated the savings forcustomers and provided recomrnendations for various communities on how to proceedwith governmental policies (Id., citing Tr. at 18-19). Palmer provided information as tothe niles and regulations governing aggregation and, at the request of someconununities, filled in the blanks on application forms, renewal forms, marketmonitoring reports, and annual reports (Tr. at 30, 54-55). White Palmer was involvedwith the process of reviewing opt-out letters for communities, it did not play a role inthe filing of notices or press releases with the Comniission (Id. at 8, citing Tr. at 50-52).
The respondent noted that, in response to comments it filed in 99-1609 and in Intlu Commission's Promulgation of Rules for Cornpetr.'tive Retail Natural Gas Serofce and itsProviders Pursuant to Chapter 4929, Reoised Code, Case No. 01-1371-CA-ORD, Finding andOrder (November 20, 2001)(01-1371), the Commission found that the respective electricand natural rules did not contemplate certifying consultants (Palmer Reply Br, at 2-3).Palmer rejected the proposition that anyone who provides assistance with energycontracts, RFPs, or provides energy advice is a supplier of CRFS or CRNGS. WhilePalmer acknowledged that it rendered advice and recommendations, it asserted that itnever made the u]timate decision on how to arrange for or supply electric or natural gasservice to consumers. Rather, each community made the decision as to who should bethe supplier. In support of this assertion, Palmer pointed to evidence that the NOACcommunities, for rahom 1'almer provided consulting services, selected differentsuppliers. (Palmer Br. at 8, citing Tr. at 44-45.)
Based on the definition of retail electric service setforth in Section 4928.01(A)(27),Revised Code, and the definition of reta$ natural gas supplier set forth in Section4929.01(N), Revised Code, Palmer interpreted the retail electric service and retailnatural gas supplier status as requiring the certified person or entity to make theultitnate decision as to how to arrange for or how to supply such commodity service tnconsumers. Therefore, Palmer claimed that, since it was not responsible for making theultimate decision, it was not performing retail electric or natural gas service. (PalmerBr. at 26-27.) Similarly, Palmer stated that, while it held agency status andJor power ofattorney for the purposes of working with CRNGS suppliers, natural gas companies,and transmission companies, it did not act independently of its principal (Id. at 21-22,citing Palmer Exs. 1, 4, 5).
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The respondent averred that there is no legal foundation for Buckeye's claim of aviolation of the Commission's rules by Palmer. AdditionaIly, Palmer submitted thatthere is no record evidence of harm being incurred by the public. (Palmer Br. at 2.)Palmer offered that the complainant's definition of who should be certified by theCommission is extremely broad and would lead to absurd results. In support of itsclaim, Palmer pointed out that, if the Commission were to follow Buckeye'sinterpretation of the statute, that, if a third-party performs an array of services, it mustbe certified by the Commission, then all "attorneys, consultants, couriers and those whoidentify electric and natural gas suppliers as potential recipients of RFPs" would needto be certified. (Id, at 28-30.) Palmer also submitted that, to require consultants to becertified, would be problematic, since it would result in two schedulers havingauthority to make arrangements for power coming into the aggregation program (Id, at26-27, citing Tr. at 198).
Palmer aiso argued that its activities as an energy consultant were known by theConunission, the Ohio Consumers' Counsel, aggregators, government aggregators,CRES and CRNGS suppliers, and that there have been no complaints by any of theseentities regarding Palmer's consulting services. Palmer reasoned that all of these partiesrecogrrize and understand that energy consultants have a necessary role in the energyfield and shou7d not be required to be certified. (Palmer Br, at 30-31.)
Finally, Palmer asserted that it provided consulting services to many customers
and entities that would be considered mercantile customers.' According to Palmer,mercantile customers may be served by entities that are not certified by theCommission. (Id.)
3. Commission ruline
Specific to the first two counts of this complaint, upon review of the evidencepresented in this case, the Commission concludes that Buckeye has failed to sustain itsburden of proving that, during the time period at issue in this complaint, Palmerengaged in activities as a provider of CRES and CRNGS without obtaining a certificatefrom the Conunission, in violation of Sections 4928.08(B) and 4929.20(A), Revised Code,respectively.
In reviewing the record relative to the allegations set forth by Buckeye in thecomplaint, as amended, the Conunission recognizes that our decision in this case isdependent on our interpretation of the definitions of electric services company andretai] natural gas suppIIer, set forth in Sections 4928.01(A)(27) and 4929.01(N), Revised
Code, respectively.
See SecBons 4928.01(A)(19), and 4929.01(L), Revised Code.
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In regard to the statutory definitions of "electric services company" and "retailnatural gas supplier," based on the existence of the word "or" in both definitions, anentity satisfies the applicable definition by either being in the business of supplying orin the business of arranging for the supply of the service. See Applicable Law Section,supra. Based on a review of the record in this case, Buckeye has not shown that Palmerwas involved in the actual supply of service prior to its certification.
Next, the Commission must focus its review on the question of whether Palmerwas engaged in the business of arranging for the supply of CRES to ultimate consumersin this state, from the point of generation to the point of consumption or arranging forthe supply of CRNGS to consumers in this state that are not mercantile customers. Inperforming this analysis, the Commission notes that while the term "arranging," isutilized in both Title 49, Revised Code, and Chapter 49, O.A.C., it is not defined, andneither party in this proceeding offered a specific definition.
For the purposes of properly defining the term "arrange," the Commission iscognizant of its prior determinations recognizing the classification of a"consultant."Specifically, the Commission recognizes that it has previously determined that an entityniay operate in the capacity of a consuItant without the need to be certified as a publicutifity provided it is not engaged in the performance of a competitive service. See 99-1609, Opinion and Order, March 30, 2000, at 3; 01-1371, Finding and Order, November20, 2001, at 24. Based on this clarification, the Conunission believes that, to be involvedin "arranging" for the supply of CRES or CRNGS, an entity must be engaged in activitythat exceeds the level of involvement of a consultant.
Specifica]ly, the Commission agrees that the respondent's activities related toassisting communifies with the Comnussion certification process, the completion ofcertification applications, and the filing of reports on behalf of clients were performed inthe capacitp as a consultant and that the evidence on the record in this case does notsupport a finding that Palmer's actions constitute the performance of a competitiveservice. In particular, the Commission notes that these activities are no different thanthe current treatment of consultants who perform similar services for clients acrossnumerous utility industries regu]ated by the Conurus.sion. Additionally, we agree thatthe mere educating of communities regarding the aggregation process may beencompassed within its role of a consultant
The Comrnission notes that Buckeye focuses a great deal of its attention on thefact that Palmer developed an RFP process; issued RFPs on behalf of its aggregatorclients; evaluated the proposals that came back in response to the RFPs; dealt withincumbent suppliers on behalf of governmental entities by obtaining and analyzingdata related to the issuance of RFPs; and estiunated savings potential and maderecommendations to the various communities that it represented (Tr. at 18, 26, 32, 39-40,204-205; Buckeye Ex. 9). Yti'hiie the record reflects that these activities were performed
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for the purpose of assisting in the clients' operations, the record does not reflect that theactivities performed by Palmer in this regard rose to the level of Palmer itself engagingin the ultimate decision making process and entering into contractaal obl3gations onbehalf of its clients with respect to the provision of a competitive service_ It is theCommissiori s duty to review the record in this case and determine if the evidencepresented supports Buckeye's allegations of wrongdoing by Palmer. However, theevidence in this case indicates that Palmer served in the role of an advisor assisting itsclients.
While the record does reflect that Palmer held agency status and/or power ofattorney for the purpose of working with CRNGS suppliers, natural gas cotnpanies, andtransrnission companies, Buckeye failed to establish that Palmer contractually obligatedits client for the supply of CRES and CRNGS. Furthermore, the evidence reflects thatPalmer, while not a party to the supplier contracts, was compensated by some of itsclients tlirough the supplier contracts based on the volume of the gas and electricitydelivered. However, there is no evidence on the record indicating that Palmer playedany role in negotiating this term in the supplier contracts or that the term itself waseven negotiable. Buckeye has presented no evidence that the manner of payment isdispositive as to whether an entity is operating as a consultant or a broker. Withoutfurther evidence to the contrary on the record, the Conunission is not able to concludethat the mode of compensation alone is indicative that Palmer was operating as abroker and not merely a consu.ltant.
Although Palmer's letterhead of Mav 8, 2002, noted that the respondent wasengaged in natural gas brokerage and its web site, prior to Palmer becoming a curtifiedprovider, indicated that the company's services encompassed energy procurement,including buying, selling, and transporting and energy contract negotiation for servicespertaining to natural gas supply and electric purchase and sales, the Conunission findsthese examples to be nothing more than circumstantial evidence (Buckeye Exs. 1-b, 2;Tr. at 93-96). In particular, the Cornmi.ssion finds that citations to Palmer's letterheadand website fail to establish the specific context for the referenced services. Specifically,it fails to establish that the respondent actually engaged in the provision of serviceconsistent with Sections 4928.01(A)(27) and 4929.01(N), Revised Code.
Moreover, while the Commission recognizes that Paimer filed applications in 10-1081 and 10-1082 to become certified to provide electric aggregator/ power broker andretail natural gas aggregator/broker services, respectively, such action does not signifythat Palmer previously engaged in regulated activity in the absence of certificafion.Rather, in the absence of evidence to the contrary, the filing for certification is assumed
to be an intention of a prospective business activity.
Notwithstanding the determinations set forth supra, the Commission recogruzes
that, pursuant to the Corrunission"s existing electrical and natural gas rules (e.g.,
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Chapters 4901:1-21 and 4901:1-29), there is ambiguity relative to distinguishing theactivities of consultants and brokers. Therefore, the Commission believes it would beappropriate to further explore this issue in a subsequent Commission proceeding,including possibly in the context of the upcoming five-year review of Chapter 4901:1-29, O.A.C. One of the issues to be incorporated within this examination is the mannerin which entities are compensated for their services and whether they receivecompensation notwithstanding the fact that an aggregator program may not actuallycommence or is short-lived. Another possible issue for consideration could be ananalysis of what are the obligations of the consultant to the extent that a supplier fails toprovide the commodity required for the aggregation program.
As a final matter, the Commiccion notes Palmer s counterdaim that theCornmission should suspend Buckeye's certification inasmuch as the complainant hasengaged in deceptive and mis)eading acts by telling others that Palmer was required tobe certified before engaging in consulting services. The Commission finds that thiscounterclaim should be denied inasmuch as, based on the record in this case, Palmerfailed to meet its burden of proof regarding the alleged violations of Rules 4901:1-27-05and 4901:1-29-05, O.A.C.
FINDINGS OF FACI" AND CONCZUSIONS OF LAW:
(1)
(2)
(3)
Buckeye is certified as a CRF.5 provider and CRNGSaggregator/broker in the state of Ohio.
Palmer has been certified as a CRES provider and CRNGSaggregator/broker since September 8, 2010, and September 15,2010, respectively.
Buckeye filed its complaint on May 21, 2010, as amended onSeptember 24, 2010.
(4) The complainant alleges that Palmer is in violation of Sec6ocis4928.06 and 4929.20, Revised Code, by failing to obtain certificationas a provider of CRES and CRNGS prior to September 5, 2010.
Palmer filed its counterclaim on Jur,e 9, 2010.
Palmer's counterclaim alleges that Buckeye violated Rules 4901,1-21-05(C) and 4901:1-29-05(C), O.A.C., resulting from its statementsthat were false, unfair, misleading, deceptive, or unconscionable inthe marketing, solicitation, or sale of a competitive retail service.
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(7) An evidentiary hearing was held on April 11, 2011, and April 20,2011.
($)
(9)
Initial briefs were filed on May 12, 2011. Reply briefs were filed onMay 23, 2011.
Section 4928.16, Revised Code, extends the Commissiori sjurisdiction under Section 4905.26, Revised Code, to CRESproviders.
(10) Section 4929.24, Revised Code, extends the Conunission'sjurisdiction under Section 4905.26, Revised Code, to CRNGproviders.
(11) In a complaint such as this one, the burden of proof rests with thecomplainant. Grossman a. Public Utilities Commission, 5 Ohio St. 2d,189,190, 214 N.E.2d 666, 667 (1966).
(12) Based on the record in this matter, the complainant has failed tosustain its burden of proving that, prior to its certification onSeptember 5, 2010, Palmer engaged in activities as a provider ofCRES and CRNGS without obtaining certification from theCommission, in violation of Sections 4928.08(B) and 4929.20,Revised Code,
(13) Based on the record in this matter, Buckeye has failed to sustain itsburden of proof relative to its counterclaim
It is, therefore,
ORDERED, That, consistent with this Opinion and Order, Buckeye has failed tosatisfy its burden of proof that Palmer violated Sections 4928.08 and 4929.20, RevisedCode, by failing to obtain certification prior to September 5,2010. It is, further,
ORDERED, That Palmer's counterclaim that Buckeye violated Rules 4901:1-21-05(C) and 4901:1-29-05(C), O.A.C., is denied, consistent with this Opinion and Order. Iis, further,
ORDERED, That, to the extent not addresses in this Opinion and Order, all other
allegations and requested remedies are denied. It is, further,
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ORDERED, That a copy of this Opinion and Order be served upon all parties of
record,
THE PUBLIC UTILITIES COMMISSION OF OHIO
JSA/JJT/dah
orter
Entered in the Journal
iitli O 1 zIti^ ^^1 Y^'\ c C^S.^ `1
Betty McCauleySecretary
itchler, Chairman
Steven D. L.Esser
CheryI L. Roberto
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Complaint ofBuckeye Energy Brokers, Inc.,
Complainant,
v. ) Case No.10-693-GE-CSS
Palmer Energy Company,
Respondent.
DISSENTING OPTNIOV OF COMMLSSIONfiR PALn A. CENTOLELL.A
Under the Cornmission s current Rules, I beGeve Palmer should have sought earliercertification as a power broker and a retail natural gas broker.
The case turns on whether, in the relationships with its municipal aggregation clients,Palmer engaged in the provision of competitive services as a power broker by°assurning the contractual and Iegal responsibilit-y for the... azrargement for thesupply of retail electric generation service to a retail customer..." or as a retail naturalgas broker by "assumin.g the contractual and Iega1 responsibIlity for the ...arrangement for the supply of competitive retail natural gas service to a retailcustomer ..." that is not a mercantile customer. Sections 4901:1-21-01(CC) and 4901:1-27-01(V), Ohio Administrative Code. The record indicates that Palmer developed theRequest for Proposa2 (RFP) process for its clients, issued RFPs on behalf of its
aggregator clients, evaluated proposals that came back in response to the RFPs, andnegotiated with potential suppliers to determine if a better rate was available (Tr. at38-49). These are steps that eithex a broker or consultant could perform in arrangingfor retail electric or natural gas suppIies. When such actions are performed under acontract between a broker and a client (other than a mercantile gas customer), thebroker would be providing a competitive retail electric or natural gas service under
the Commission s rules.
The issve in this case is the underlying nature of the relationship between Palmer andits municipal aggregation clients. Paimer has characterized the relationship as aconsulting relationship. However, the electric and gas aggregation supply contractsthat are at the core of the complaint indicate that this characterization does notaccurately depict the nature of the relatlonship. The complainant introduced electricsupply contracts entered into in 2009 between First Energy Solutions Corporation andthe following PaLmer Energy municipal aggregation clients: Board of Lucas County
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Ccnunissioners (Exhibit 42), City of Maumee (Exhibit 43), City of Oregon (Exhibit 44),Lake Townsldp (Exlubit 45), City of Perrysburg (Exhibit 46), City of Toledo (Exhibit47), Village of Holland (Exhibit 48) and City of Norwood (Exhibit 50). Each agxeementcalled for Palmer to be paid a fee of $.00007 per kWh delivered to retail consumersunder the contract. The complainant also introduced gas supply agreements enteredinto prior to Patmei's September 2010 certification between Interstate Gas Supply andthe following Palmer clients: City of Toledo (Exhibit 15), Village of Holland (Exhibit16), City of Oregon (Exhibit 17), Lucas County (Exhibit 18), City of Maumee (Exhibit19), Lake Tocvnship (Fxhibit 20), City of Norwood (Exhibit 21) and PerrysburgTownship (Exhibit 22). Each of these agTeements specified that Palmer is to be paid afee of $.0015 per CCF of gas delivered to retail consumers. These provisions were
included at the request of Palmer's clients (Tr. at 120). And, other than a separateagreement between Palmer and NOAC that had ended by 2001, there were noagreements in which Palmer would be paid up front by any aggregation client inadvance of a supply contract (Id. at 26 -28). Although Palmer was not itself a party tothe supply agreements, the specified payments to Palmer are persuasive evidence ofthe existence and nature of verbal or implicit agreements between Palmer and itsaggregation clients? It is apparent that under verbal or implied contracts betweenPalmer and its aggregation clients Palmer would take steps to arrange for supplycontracts in exchange for fees that would be paid contingent upon the successfuldelivery of electricity or gas to retail consumers. The distinguishing feature of abroker's contract, as opposed to a consultant relationship, is that the broker is paid abrokerage, comnvssion, or fee that is contingent on the successful completion of acontract for the purchase or sale of a good or service. Contingent compensation altersthe financial incentives and gives the broker a fulancial interest in the completion of atransaction. By contrast, a consultant that was paid solely for its service and expertisewould be financially neutral regarding whether the supply contract and retaildeliveries were completed. Palmer s compensation was contingent on the deliveriesof electricity or gas under successfully completed supply contracts. When Palmer firstentered into agreements or understandings that its compensation would be contingentupon the completion of the supply contracts that it was helping to negotiate and thesuccessful delivery of electricity or gas to retail consumers, the firm should havesought certification as a retail power broker or a retail natu.ral gas broker under the
Comrnission's current Rules.
Although it initially failed to seek certification, Palmer subsequently has been certifiedto provide competitive retail electric and natural gas service. This is a case of first
impression. The Commission has not previously provided guidance regarding thedistinction between a consultant and a broker involved in competitive retail supply of
A contract may be implied in fact wtiere the surrounding circumstances make it inferable that the
contract exists as a matter of tacit understandingHumme! v. Hummei (1938), 133 Olvo St 520. 525,
14 N x.2d 923, 925-926; Lcgros v. Tun (1989), 44 Ohio St3d 1, 540 N.P„2d 257, 263.
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electricity and natural gas. Given the testimony from Palmer's clients and the lack ofevidence of complaints from consumers served under the aggregation agreements thatPalmer helped to set up, I find that no further remedy is appropriate at this time,beyond the certifications which Palmer already has obtained.
Pauf A. Centol.ella
/dah
Entered in the Journal
-jD Q L1011
Setty McCauleySecretary
BEFORE
THE PUBLIC IJTILITIES COMMISSION OF OHIO
In the Matter of the Complaint of BuckeyeEnergy Brokers, Inc.,
Complainant,
V.
Palmer Energy Company,
Respondent,
Case No.10-693-GE-CSS
ENTRY ON REHEARING
The Commission finds:
(1) On November 1, 2011, the Commission issued its Opinion andOrder (Order) in this case. Among other things, the Commissionfound that, based cn the record ir, this matter, Buckeye EnergyBrokers, Inc. (Buckeye or complainant) failed to sustain its burdenof proving that during the time period at issue in the complaint,Paimer Energy Company (Palmer or respondent) engaged inactivities as a provider of competitive retail electric service (CRES)and competitive retail natural gas service (CRNGS) withoutobtaining a certificate from the Conunission in violation of Sections
4928.08(5) and 4929.20(A), Revised Code, respectively.
(2) On December 1, 2011, Buckeye filed an application for rehearing ofthe Commissiori s November 1, 2011, Order. Buckeye asserts thatthe Order is unjust and unreasonable based on the following
assignments of error:
(a)
(b)
The Com:nission exceeded its powers and jurisdictionin its Order by effectively creating a consultantloophole, which is not provided for by the GeneralAssembly in either Section 4928.01, Revised Code, etseq. or Section 4929.01, et seq., Revised Code.
The Comntissiori s Order is internally inconsistent inits interpretation and application of the terms
ATTACHMENT B
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(c)
"competitive service° and "arranging," and itscreation of the consultant loophole.
The Comrnission attempted to define the activities ofa consultant, while at the same time acknowledgingthat its rules contain an ambiguity relative todistinguishing the activities of consuitants andbrokers,
(d) The Commission attenipted to define the activities ofa consultant under its rules despite the fact that theCommission rules do not reference the term"consuI tant."
(e)
(f)
(g)
(h)
(i)
The Commission erred by finding that "arranging," asdefined by the applicable statutes, must exceed thelevel of involvement of a consultant when that is not areference point under the statutes,
The Commission erred by using the actions of aconsultant as a reference point for determining whatconstitutes "arranging;" absent any support under theapplicable statutes.
The Commission erred by finding, without anysupport under the applicable statutes, that actionstaken by a consuttant and actions that are competitiveservices are mutually exclusive.
The Conunission erred by excluding certain actionsfrom the definition of "arranging," including Palmer'sadrnitted participation in the Request for Proposal([tFP) process on behalf of its customers.
The Commission erred by failing to adequatelyconsider the significance of the manner of Palmer'scompensation when determining that Palmer acted asa consultant rather than a broker.
The Corrunission erred by finding that Paimer'sadmissions that it was a broker contained on itswebsite, company letterhead, and certificationapplication were merely circumstantial evidence, andnot admissions against interest.
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(k)
(I)
The Commission erred by finding that Palmer's 2010certification applications were merely anticipatory offuture actions, as opposed to a corrective measuredesigned to cut its losses for failure to follow the lawand become certified in the past.
The Comnu,ssion erred by finding that Buckeye failedto meet its burden of proof that Palmer was engagingin competitive services and arranging for theprovision of CRES or CRNGS prior,to receiving its
certification.
(m) The Commission erred by finding that Buckeye failedto meet its burden of proof, especially when it was theCorrunis.siori s rulings on discovery issues and thehearing subpoena that effectively prevented thecomplainant from presenting all available evidence.
(3) On December 8, 2011, Palmer filed its memorandum contraBuckeye's application for rehearing.
(4) Pursuant to its Entry on Rehearing of December 14, 2011, theComndssion granted Buckeye's application for rehearing forfuzther consideration of the matters specified therein.
(5) In its first assignment of error, Buckeye contends that, in its Order,the Commission exceeded its powers and jurisdiction by effectivelycreating a consu:.tant loophole which is not provided for by theGeneral Assembly in either Section 4928.01, Revised Code, et seq.or Section 4929.01 et seq., Revised Code.
In support of its first assignment of error, Buckeye focuses on theCommissiori s statement that "to be involved in 'arranging' for thesupply of CRES and CRNGS, an entity must be engaged in activitythat exceeds the level of involvement of a consultant" (Applicationfor Rehearing at 2, citing Order at 181. [n particular, Buckeyesubmits that a consultant loophole does not exist, inasmuch as no
such loophole was created by the applicable statutes or ruleswithout focusing on the activities of the entity [i.e., Chapters 4928,4929, Revised Code; Chapters 4901:1-21, 4901:1-29, OhioAdmu istrative Code (O.A.C.)] (Appflcation for Rehearing,
Memorandum in Support at 2-3).
Buckeye opines that, through its Order, the Comnussion hascreated a loophole whereby an entity that calls itself a consultant
10-693-GE-CSS
may avoid the applicable statutory requirements (Id. at 2).Specifically, Buckeye avers that the Commission has "improperlyptaced its focus on Palmer's self-professed label of consultant,rather than upon its undeniably competitive services and actionsduring the precertification period" (Id.).
Buckeye reiterates its belief that the Commission previouslyaddressed the consultant loophole argument in context ofarguments raised by Palmer in Case Nos. 99-1609-EL-ORD, In theMatter of the Commission's Promulgation of Rules for Certification ofProviders of Competitive Retail Eleciric 5erolces, Pursuant to Clurpter4928, Revised Code (99-1609), and 01-1371-GA-ORD, In the Matter ofthe Commission's Promulgation of Rules far Competitive Retail NaturalGas Seroice and its Providers Pursuant to Chapter 4929, Revised Code(01-1371). In parHcular, Buckeye asserts that, in these cases, theCommission indicated that a contractor wiII be required to becertified if it performs a competitive service (Id. at 3, citing 99-1609,Finding and Order, March 30, 2000, at 3; 01-1371, Finding andOrder, November 20, 2001, at 24).
Consistent with its position relative to this assignment of error,Buckeye asserts that the Ohio Supreme Court recently addressedwhether the Conunission can create and apply a classification by anopinion and order when the classification is not specificallydelineated in a statute or rule. Specifically, Buckeye opines that,based on In re Application of CoIumbus Southern Power Co. (2011), 128Ohio St.3d 512, 520, 2011-Ohio-1788, at 31-35, the Ohio SupremeCourt determined that the Commission's creation of categories andclassif'ications which were not contemplated by the Revised Codeor the O.A.C. was not a result that the General Assembly intendedand, therefore, the plain language of the statute controls. (Id. at 3-4.)
(6) In response to Buckeye's first assignment of error, Palmer submitsthat the Commission did not create a loophole for consultantstl-irough its Order. Rather, Palmer asserts that consultants haveexisted long before Buckeye filed its cornplaint in this proceedingand that there is no statute prohibiting, restricting, or limiting aCRES provider or CRNGS provider from retaining a consultant(Memorandum Contra at 2-3). Palmer asserts that, to the extent aconsultant engages in typical consultant-related activities, it is notconverted into a CitES or CRNGS supplier. In support of itsposition, Palmer recognizes that, while the General Assembly couidhave required consulta*:ts who are retained by CRcS or CRNGS
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(7)
(8)
providers to be certified, it did not. Additionally, Palmer assertsthat the General Assembly did not prohibit, restrict, or Iiniit the useof consnitants by CCtF5 or CRNGS providers or limit the type ofconsultant that could be retained. (Id. at 4, 6.)
Palmer dismisses Buckeye's claim that In re Application of Columbus
Soutlrern Power Co., supports the argument that the Commissionabused its own jurisdiction and power by exceeding the authoritygranted by the General Assembly and then by failing to follow itsown niles. In particular, Palmer states that the facts and applicablestatutes in the current case are distinguishable from that of the citedproceeding. Further, Palmer opines that, rather than creating aconsultant loophole, the Commission simply interpreted its ownrules. (Id. at 6.)
With respect to Buckeye's first assignment of error, the applicationfor rehearing should be denied. Contrary to Buckeye's assertionsregarding the establishment of a consultant loophole in this case,the Commission concludes that its determination in this case wasconsistent with our March 30, 2000, Finding and Order in 99-1609and our November 20, 2001, Finding and Order in 01-1371.Spec::cally, i.-t both of these orders, the Commission stated tI•,at,while the applicable rules do not contemplate certifyingconsultants, this clarification does not apply to instances where aconsultant or contractor performs a competitive service consistentwith the rules. In those scenarios, the Commission indicated thatthe corisultant or contractor will be required to be certified (99-1609,Finding and Order at 3; 01-1371, Finding and Opinion and Order at
24). Therefore, the Commission in this case did nothing more thanapply the existing rules and determined that, based on the recordpresented in this case, Palmer was not engaged in the provision of
a competitive service.
In its second assignment of error, Buckeye contends that theCommission's Order is internally inconsistent in its interpretationand application of the terms "competitive service" and "arranging"and its creation of the consultant loophole.
In support of ita second assignment of error, Buckeye submits that,while the Commission recognizes its prior holdings with respect tothe classification of a consultant, discussed supra, the Commissiondisregarded its prior holdings and, instead, issued an Order that isinternally inconsistent and effectively permits the creation of aconsultant loophole which is in conflict with the appiicable
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certification statutes. (Application for Rehearing, Memorandum inSupport at 4).
Relative to its position on this issue, Buckeye notes that theCommission, in its Order, recognized that the key question to bedecided is whether or not Palmer arranged for the supply of CRESor CRGNS to customers (Id. at 5, citing Order at 18). Buckeye alsohighlights that in its decision in this case, the Commissionultimately determined that, since a consultant does not arrange forthe supply of CRES or CRNGS, it does not need to be certified.Buckeye submits that this determirtation is inconsistent with theComrnission s detenYdnations in 99-1609 and 01-1371 that theclassification of a consultant is irrelevant to the questions ofwhether the consultant is engaged in the performance of acompetitive service or arranging for the supply of CRFS or CRNGS.(Id. at 4-5.)
(9) in response, Palmer su'omits that, rather than simply relying on therespondent's self-defined classification of "consultant," theCommission reviewed the record and determined that Palmeracted in the role of consultant/adviser and nol as the ultimatedecision-maker (Iviernorandum Contza at 7-8).
(10) With respect to Buckeye's second assign-ment of error, theapplication for rehearing should be denied. In reaching thisdetermination, the Commission finds that Order in this case isconaistent with its determinations in both 99-1609 and 01-1371. Inparticular, the Commission highlights that, pursuant to 99-1609 and01-1371, a consultant is not required to be certified unless it isengaged in the provision of a competitive service, which includesthe arranging of CRE,''i or CRNGS. Therefore, it is not the mereclaim of being a consultant that results in the need for certificationas CRES or CRNGS provider. Rather, an analysis must beperformed as to the nature of an entity's operations in order toascertain whether certification is required. Based on the anaJysisperformed in our Order, the Commission determined that therecord in this case did not support Buckeye's allegation that thenature of Palmer's activities during the time in question did not riseto the level of provisioning a competitive service.
(11) Ln its third assignment of error, Buckeye asserts that theConurtission attempted to define the activities of a consultant,while at the same tirne acknowledging that its rules contain an
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ambiguity relative to distinguishing the activities of consultantsand brokers.
In support of its position, Buckeye submits that it is inappropriatefor the Commission to recognize that the current electrical andnatural gas rules contain an ambiguity relative to distini,vishingthe activities of consultants and brokers, while at that same timedetermining that Palmer's activities were that of a consultant and,therefore, not competitive. Specifically, Buckeye questions how theCommission can resolve the identified ambiguity by simplydefining the pivotal term of consultant in the context of this case.Buckeye submits that the reason why the rules do not distinguishthe activities of a consultant from those of a broker is because therules do not even contemplate the classification of a consultant.Based on its position, Buckeye believes that the Commission s focusshould be on Palmer's actions and not on its self-defined label as aconsultant. (Application for Rehearing, Memorandum in Supportat 6.)
(12) Palmer responds that, rather than attempting to define the activitiesof a consultant or relying on the self-defined "consuitant"C:assificatlor'4 tlie C0rr'uTiission analyZed the dctivities that contpr'.Se
being in the business of supplying or arranging for the supply ofelectricity or natural gas and then dete.rnxined that the complainanthad not satisfied its burden of proof relative to the allegations setforth in the complaint. According to Palmer, instead of findingthat Buckeye's activities constituted being in the business ofsupplying or arranging for the supply of electricity or natural gas,the Conunission determined that Palmer's activities were more
akin to being a consultant or advisor. (Memorandum Contza at 7-8.)
(13) With respect to Buckeye's third assigiunent of error, the applicationfor rehearing should be denied. As discussed supra, theCommission, in its orders in 99-1609 and 01-1371, recognized that aj`consultant° may or may not require certification depending onwhether or not it performs a competitive service. Rather thanrelying on Buckeye's self-defined label as a consuitant, our Order
reflects a detailed analysis of the nature of Buckeye's activities, asset forth in the record, with respect to the statutory definitions ofelectric services company and retail natural gas supplier as set forthin Sections 4928.01(A)(27) and 4929.01(N), Revised Code,respectively. From this analysis, the Commission determined thatBuckeye's activities, as described on the record in this case, for the
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time frame in question, did not signify the provision of acoinpetitive service.
In response to the concem raised by Buckeye regarding theConunission reaching its deterrnirnation in this case, while at thesame time identifying the ambiguity regarding consultants andbrokers, the Commfssion notes that its decision is premised on thecurrent record in both this case and the existing rules resultingfrom the proceedings in 99-1609 and 01-1371. To the extent there isa change in the rules relative to the definition of brokers, this willoccur on a going forward basis subsequent to the completion of anyfuture applicable rules proceedings.
(14) In its fourth assignment of error, Buckeye avers that theCommission attempted to define the activities of a consultantunder • its rules despite the fact the Commission rules do notreference the term "consultant."
In support of this assignment of error, Buckeye points out that, inits Order, the Conunission reviewed the activities of Palmer anddetermined that they are encompassed within the role of acorsultar.t. Notwithstanding this determination, Buckeye assertsthat there is no rule, statutory provision, or any guidance todetermine whether certain activities constitute that of a consultant.Therefore, Buckeye believes the Commission has overstepped itsauthority by attempting to define a term, (Application for
Rehearing, Memorandum in Support at 7.)
(15) Palmer responds that the Comrnission did not attempt to define a"consultant" or what activities constituted a consultant. Instead,Palmer submi.ts that the Commission relied upon its interpretationof the definitions of electric services company and retail natural gassupplier as set forth in Sections 4928.01(A)(27) and 4929.01(N),
Revised Code. (Memorandum Conira at 9-10).
(16) With respet,t to Buckeye's fourth assignment of error, theapplication for rehearing should be denied. As discussed supra,the Commission's analysis in its Order was not premised on anundefined term of "consultant" but, instead, focused on the natureof Palmer's activities, as explained on the record in this case, in thecontext of Sections 492$.O1(A)(27) and 4929.01(N), Revised Code.
See, e.g. ©rder at 19.
(17) In its fifth assigrun.ent of error, Buckeye contends that theCommi.ssion erred by finding that "arranging," as defined by the
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applicable statutes, must exceed the level of involvement of aconsultant. Specifically, Buckeye contends that the relied uponstandard is not a reference point under the applicable statutes.
In support of its position, Buckeye asserts that there is no supportfor the proposition that a consultant cannot be involved inarranging. Buckeye opines that the operative analysis in this case isto determine if an entity is engaged in providing competitiveservices through the arranging to provide electrical or natural gasservice. Rather than performing such analysis, Buckeye concludesthat the Conunission simply found that arranging and consultingare mutually exclusive and that Palmer is merely consulting.Rather than determining whether arranging and consulting aremutually exclusive, Buckeye opines that the Commission shouldhave determined whether Palmer's actions constitute arranging forthe provision of CRES or CRNGS. (Application for Rehearing,Memorandum in Support at 8.)
(18) Palmer asserfs that the Couvnission, relying upon its March 30,
2000, Finding and Order in 99-1609 and its November 20, 2001,Finding and Order in 01-1371, properly defined the term"ar-ranging" in its Order in tl'us ntatter consistent with its previousrulings (Memorandum Contra at 10-11),
(19) With respect to Buckeye's fifth assignment of error, the applicationfor rehearing should be denied. As discussed supra, theCommission's Order focused on the analysis of the nature ofPaJmetrs activi5es during the time frame in question as set forth inthe evidence in this case. As part of its analysis, the Commissionengaged in exactly what Buckeye advocates, an analysis of whetherPalmer's actions constitute arranging for the provision of CRES orCRNGS. See Order at 18-19. Further, the Commission notes thatthe intent of its Order at p. 18 was to establish that generallyconsultants are not required to be certified, unless they engage inactivity that is proven to rise to a level that satisfies the requisite
statutorv criteria,
(20) In its sixth assignment of error, Buckeye contends that theConunission erred by using the actions of a corisultant as areference point for determining what constitutes "arranging,"absent any support under the applicable statutes. In support of itsposition, Buckeye contends that, in actuality, the Commission has,absent any legal foundation, classified certain activities asconsul:'ing servlces. Similarly, Buckeye believes the Commission
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has used the term "consultant" as a reference point for whatconstitutes arranging, inasmuch as, based on the Commission sOrder, in order to be involved in arranging, an entity must exceedthe level of involvement of an consultant. (Application forRehearing, Memorandum in Support at 8-9.)
(21) In response to Buckeye s fifth assignment of error, Palmer assertsthat the Conunission did not use the actions of a consultant as thekey reference point in making its decision Rather, Palmercontends that, if the activities performed rose to the level ofengaging in an ultimate decision-making process and entering intocontractual obligations on behalf of its clients, then the Commissioncould find that the entity was providing a competitive service.Palmer opines that the Commission, upon weighing the evidence inthis case, determined that the.respondent's activities did not rise tolevel of ultimate decision-making and entering into contractualobligations on behalf of clients. (Memorandum Contra at 12-13.)
(22) With respect to 8uckeye's sixth assignment of error, the applicationfor rehearing should be denied. As discussed supra, theConunission's analysis in its Order was not premised on anundefined term of "consultant" but, instead, focused on the na"tuseof Palmer's activities, as set forth on the record, in the context ofSections 4928.01(A)(27) and 4929.01(N), Revised Code. Based onthe record presented in this case, the Commission found thatPainier was not engaged in the supplying or arranging for thesupply of a competitive service in the state of Ohio.
(23) In its seventh assignment of error, Buckeye contends that theConunission erred by finding, without any support under theapplicable statutes, that actions taken by a consuttant and actions
that are competitive services are mutually exclusive. In support ofits posifion, Buckeye opines that the Conunission's decision resultsin the conclusion that certain activities are either consultingservices or competitive services, but never both Buckeye finds thisdetermination to be problematic in light of the fact that the term"consultant" is not defined. Buckeye also believes that such anapproach provides the public with no guidance as to which actionswill be considered consulting services and which actions arecompetitive services. (Application for Rehearing, Memorandum in
Support at 10.)
(24) Citing to the Commission's Orders in 99-1609 and 01-1371, Palmerresponds that the Conunission did not find that actions taken by a
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consultant and actions that are competitive services are mutuallyexclusive. Rather, Palmer believes the Commission contemplatedthat, to the extent a consultant or contractor performed anycompetitive service, it must be certified. (Memorandum Contra at13-14.)
With respect to Buckeye's seventh assignment of error, theapplication for rehearing should be denied. In reaching thisdetermination, the Commission agrees with Palmer that ourFinding and Orders in 99-1609 and 01-1371 do not stand for theproposition that actions taken by a consultant and actions that arecompetitive services are mutually exclusive. Rather, althoughmany activities that a consultant may engage in do not constitute acompetitive service, to the extent that it does perform a competitiveservice, it must be certified.
(26) In its eighth assignment of error, Buckeye contends that theCommission erred by excluding certain actions from the definitionof "arranging," including Palmer's admitted participation in theRFP process on behaif of its customers. In support of its position,Buckeye notes that Palmer admitted that it had extensiveparticipatio^, in its clients` u P processes. Buckeye believes that itis unduly restrictive to determine that, while an entity hasperformed a number of functions, it is not a broker simply becauseit dfd not make the fin.al decision on behalf of the client.Specifically, Buckeye points out that Palmer developed theproposal process, prepared and issued RFPs, evaluated theproposals, analyzed data on behalf of clients, and eventually maderecommendations to the client. (Application for Rehearing,Memorandum in Support at 11.)
(27) Palmer responds that the testimony reflects that, as a consultant, itmerely made recommendations and did not make the ultimatedecisions involving supplying or arranging for commodity service.Palmer submits that, if it was indeed making the ultimate decisionas to the selection of suppliers or arranging for suppliers, certaincornmunity members of the Northwest Ohio Aggregation Coalitionwould not have selected different suppliers. (MemorandumContra at 14-16.)
(28) With respect to Buckeye's eighth assignment of error, theapplication for rehearing should be denied inasmuchcomplainant has failed to raise any new arguments
asfor
thethe
Comn-tission's consideration. Morec^.er, the Commission continues
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to emphasize that our conclusion in this case is based on theevidence of record, which did not indicate that Buckeye actedinappropriately during the time period in question.
(29) In its ninth assignment of error, Buckeye contends that theCorxunission erred by failing to adequately consider thesignificance of Palmer s compensation when detennining thatPalmer was acting as a consultant and not a broker. In support ofits position, Buckeye notes that the Order identified that Palmerwas compensated by some clients through the supplier contractsbased on the volume of gas and electricity delivered. Buckeyebelieves that this fact should not have been viewed in a vacuumbut, rather, in conjunction with the other evidence supporting theclaim that Palmer was either acting as a broker or otherwisearranging to provide competitive services. (Application forRehearing, Memorandum in Support at 12-13)
(30) Palmer responds that the Commission did consider the mode ofcompensation and determined that the mode of compensationalone was not determinative of whether an entity was operating asbroker or as a consultant (Memorandum Contra at 16-18).
(31) With respect to Buckeye's ninth assignment of error, theapplication for rehearing should be denied inasmuch as thecomplainant has failed to raise any new arguments for theCommission s consideration. As stated in our Order, there is noevidence of record indicating that Palmer played any role innegotiating the compensation provision in the contracts or thatsuch provision was even negotiable. Moreover, Buckeye presentedno evidence that would indicate that the manner of payment aloneis indicative that Palmer operated as a broker.
(32) In its tenth assignment of error, Buckeye asserts that theComuiission erred by finding that Palmer's numerous admissionsthat it is a broker (i.e., website, letterhead, certification applications)were merely circumstantial evidence, as opposed to adrnissionsagainst interest. Specifically, Buckeye submits that an admissionagainst interest is not circumstantial evidence but, rather, is directevidence and is conclusive of an issue in dispute in this case andshould not be disregarded. At the very least, Buckeye contends
that Palmer is guilty of misleading the public by holding itself outto be a broker, when it is not certified to do so. (Application for
Rehearing, Memorandum in Support at 14.)
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(33) Palmer responds that there is no admission against interest withrespect to the letterhead, the website, or the application for acertificate. Palmer asserts that the Conunission properly weighedaI1 of the evidence and determined that the website, the May 2002letter, and the certificate application did not reflect any evidencethat Palmer was engaging in CRFS or CRNGS. (MemorandumContra at 19-20.)
(34) With respect to Buckeye's tenth assignment of error, the applicatfonfor rehearing should be denied. As we noted in the Order, merecitation to Palmer's letterhead and website by Buckeye does notestablish that Palmer engaged in the provision of CRPS or CRNGS.On rehearing, Buckeye has not raised any argn.ment that was notthoroughly considered in the Order.
(35) In its eleventh assignment of error, Buckeye states that theCommission erred by finding that Palmer's applications forcertification were merely anticipatory of future action instead ofremedial in nature to address its failure to comply with existingrequirements. In support of its position, Buckeye highlights thatPalmer's certification applications were filed after thecommencement of tiu; complaint case. Additionaily, Buckeye callsattention to the fact that Palmer acknowledged that it has providedno new or additional services since obtaining certification.(Application for Rehearing, in Memorandum in Support at 15.)
(36) Palmer, in response to this assignment of error, asserts that there isno evidence to suggest that the certification applications were filedto validate prior activity or "to cut losses" (Memorandum Contra at20).
(37) With respect to Buckeye's eleventh assignment of error, theapplication for rehearing should be denied. Buckeye failed tosubstantiate its allegation concerning Palmefs motives forrequesting certification when it did. As we concluded in the Order,in the absence of evidence to the contrary, the filing of certificationis assumed to be in anticipation of a prospective business activity.
(38) In its twelfth assignment of error, Buckeye argues that theCommission erred by finding that Buckeye failed to meet itsburden of proof that Palmer was engaging in competitive servicesand arranging for the provision of CRFS or CRNGS prior toreceiving its certification. Based on the evidence in this case,Buckeye submits that there is no legal basis for the Commission tofind that Buckeye did not meet its burden of proof. In particular,
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Buckeye subrnits that Palmer admitted that it took every action toarrange for the contracts except for making the final decision andsigning the final contract. Based on the various activities thatPalmer engaged fn, Buckeye questions what else it would take foran entity to be engaged in the arranging of service. (Application forRehearing, in Memorandum in Support at 15-17.)
(39) In response, Palmer believes that, based on the Commission'sanalysis, it is clear that the Commission was attempting todetermine whether Palmer engaged in competitive services orarranged for the provision of CRES or CRNGS (MemorandumContra at 20-21, citing Order at 18). Palmer believes that theConunission anaIvzed each of the arguments raised and presentedclear reasons why Palmer's activities did not constitute a serviceinvolving the supplying and arranging for the supply of electricityor natural gas service to consumers (Id. at 23). Palmer callsattention to the fact that, while the Conunission considered therespondent's RFP activities, it determined that they did notperform the function of engaging in the ultimate decision-rnalcingprocess and entering into contractual obligation on behalf of itsdients (rd. at 21).
Additionaily, Palmer asserts that there is no specific definition of"arrange' and the Comnvssion recognized that its decision in thiscase was dependent upon its interpretation of the definitions ofelectric services company and retail natural gas supplier. Palmeralso highlights that the Commission recognized that it hadpreviously deteradned that an entity may operate in the capacity ofa consultant without the need to be certified as a public utility,provided it was not engaged in the performance of a competitiveservice. (Id. at 22.)
(40) With respect to Buckeye's twelfth assignment of error, theapplication for rehearing should be denied. Contrary to Buckeye'sopin3on, there was not defirStive evidence presented on the recordin this case to establish that Palmer acted inappropriately incontravention of statutes and/or Comrnission`s rules. TheComaxission must rely squarely on the evidence presented in thiscase and not on speculation or conjunetion. In that the complainanthas failed to raise any arguments for the Conunission'sconsideration, which were not thoroughly considered in our Order,Buckeye's twelfth as.signment of error is without merit.
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(41) ln its thirteenth assignment of error, Buckeye avers that theCommission erred by finding that the complainant failed to meetits burden of proof. Buckeye believes that this is especially true inlight of the Commission s rulings on discovery issues and the trialsubpoena. In particular, Buckeye believes that such rulingsprevented it from presenting all of the available evidence andrewarded Palmer's stonewalling of the discovery and trial process.Buckeye recounts how, prior to the hearing in this case, a subpoenaduces tecum was issued compelling Mark Prye s attendance andtestimony in this case, as well requiring hirn to bring specifieddocumentation Buckeye appears to argue that, although theCommission granted Palmer's motion to quash, the informationaddressed in the motion is the very information that the Buckeverequired in order to satisfy the burden of proof that theConunission has deterrnined that the complainant did nat rneek(Application for Rehearing, Memorandum in Support at 17-18).
(42) In regard to the issuance of the trial subpoena and the requestedfive categories of documents, Palmer responds that the issuance ofsubpoenas is ministerial in nature. Palmer notes that, on March 16,2011, it filed a motion to quash or limit the subpoena issued to Mr.Frye in order that Mr. Frye not be required to bring any documentsto the hearing beyond what was already produced in discovery.Palmer highlights that, in its March 16, 2011, motion, it hadasserted that the documents sought in the subpoena were muchbroader than the scope of documents previously provided toBuckeye.
Palmer contends that the attorney examiner's Entry of March 30,2011, granting Palmer's motion to quash was correct andappropriate. Palmer further points out that Buckeye neither filed amotion to compel nor took an interlocutory appeal from the Entryof March 30, 2011. (Memorandum Contra at 28).
(43) With respect to Buckeye's ttrirteenth assignment of error, theCom.n ission concludes that applieation for rehearing should bedenied. To the extent that Buckeye sought to object to the attorneyexamine(s Entry of March 30, 2011, it should have filed aninterlocutory appeal of that ruling or raised the issue in its brief, oranother appropriate filing as provided in Rule 4901-1-1-15(F),O.A.C.
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It is, therefore,
ORDERED, That the application for rehearing be denied in accordance with thefindings above. Jt is, further,
ORDERED, That a copy of this Entry on Rehearing be served upon all pardesand interested persons of record.
THE PUBLIC UTILITIES COMMISSION OF OHIO
Paul A. Centolella
A:.dre T. Porter
JSA/dah
Entered in the Jouznal
R44`i ZQ12A^oa! J 1 we.o--f'
-C^te^c )- 7Z^^/,kCheryl L. Roberto
Barcy F. McNealSecretary
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the CompIaint of Buckeye
Energy Brokers, Inc.,
Complainant,
V.
Palmer Energy Company,
Respondent.
Case No.10-693-GE-CSS
ENTRY ON REHEARING
The Comnussion finds:
(1) On November 1, 2011, the Commission issued its Opinion andOrder in thds case. Among other things, the Commission found that,based on the record in this matter, Buckeye Energy Brokers, Inc.(Buckeye) failed to sustain its burden of proving that, during thetime period at issue in its complaint, Palmer Energy Company(Palmer) engaged in activities as a provider of competitive retailelectric service (CRES) and competitive retail natural gas service(CRNGS) without obtaining a certificate from the Commission inviolation of Sections 4928.08(B) and 4929.20(A), Revised Code,respectively.
(2) On December 1, 2011, Buckeye filed an application for rehearing ofthe Commission's November 1, 2011, Opinion and Order (Opinionand Order). Buckeye asserts that the Opinion and Order is unjustand unreasonable based on the following assignments of error:
(a)
(b1
The Commission exceeded its powers and jurisdictionin its Opinion and Order by effectively creating aconsultant loophole wluch is not provided for by theGeneral Assembly in either Section 4928.01, RevisedCode, et seq. or Section 4929.01 et seq.
The Commission's Opinion and Order is internaLyinconsistent in its interpretation and application of the
terms "competitive service" and "arranging" and itscreation of the consultant Ioophole.
The Commission attempted to define the activities of aconsultant while at the same time acknowledging thatits rules contain an ambiguity relative to distinguishingthe activities of consultants and brokers.
The Commission attempted to define the activities of aconsultant under its rules despite the fact that theCornm.ission rules do not reference the term"consultant."
(e) The Comrnission erred by finding that "arranging" asdefined by the applicable statutes must exceed thelevel of involvement of a consultant when that is not areference point under the statutes.
(f) The Commission erred by using the actions of aconsultant as a reference point for determining whatconstitutes "arranging," absent any support under theapplicable statutes.
(g) The Commission erred by finding that actions taken bya consultant and actions that are competitive servicesare mutually exclusive, without any support under theapplicable statutes.
(h) The Commission erred by excluding certain actionsfrom the definition of "arranging," including Palmer'sadmitted participation in the Request for Proposal(RFP) process on behalf of its customers.
(i) The Commission erred by failing to adequatelyconsider the significance of the maruler of Palmer'scompensation when determining that Palmer acted asa consultant rather than a broker.
6) The Commission erred by finding that Palmer'sadmissions that it was a broker contained on itswebsite, company letterhead, and certificationapplication were merely circumstantial evidence andnot admissions against interest.
10-693-GE-CSS -3-
(3)
(k) The Commission erred by finding that Palmer's 2010certification applications were merely anticipatory offuture actions, as opposed to corrective measuresdesigned to cut its losses for failure to follow the lawand become certified in the past.
(I) The Commission erred by finding that Buckeye failedto meet its burden of proof that Palmer was engagingin competitive services and arranging for the provisionof CRES or CRNGS prior to receiving its certification.
(m) The Commission erred by finding that Buckeye failed
to meet its burden of proof, especially when it was theCommission's rulings on discovery issues and the
hearing subpoena that effectively prevented the
complainant from presenting all available evidence.
On December 12, 2011, Palmer filed its memorandum contra
Buckeye's application for rehearing.
Seiuoi 4903.10, Revised Code, provides that any party who hasentered an appearance in a proceeding may apply for rehearing
with respect to any matter determined in the proceeding by filing anapplication within 30 days of the entry of the Order in the
Commission's journal. The Commission may grant and hold
rehearing on the matters specified in the application if, in its
judgment, sufficient reason appears to exist.
(5) Buckeye's application for rehearing has been timely filed as requiredby Section 4903.10, Revised Code.
(6) The Commission grants Buckeye's application for rehearing. Webelieve that sufficient reasons have been set forth by Buckeye towarrant further consideration of the matters specified in t'neapplication for rehearing.
It is, therefore,
ORDERED, That the application for rehearing be granted for further considerationof the matters specified therein. It is, further,
A-®51
10-693-GE-CSS -4-
ORDERED, That a copy of this Entry on Rehearing be served upon all parties andinterested persons of record.
THE PUBLIC UTILITIES COMMISSION OF OHIO
Andre T. Porter
JSA/ dah
Entered in the Journal
DEC 14 ZDSf
7SBetty McCauleySecretary
Chefyl L. Roberto
4928.01 fEffective Until 7/16/20121 Competitive retail electricservice definitions.
(A) As used in this chapter:
(1) "Ancillary service" means any function necessary to the provision of electrictransmission or distribution service to a retail customer and includes, but is notlimited to, scheduling, system control, and dispatch services; reactive supply fromgeneration resources and voltage control service; reactive supply from transmissionresources service; regulation service; frequency response service; energyimbalance service; operating reserve-spinning reserve service; operating reserve-supplemental reserve service; load following; back-up supply service; real-powerloss replacement service; dynamic scheduling; system black start capability; andnetwork stability service.
(2) "Billing and collection agent" means a fully independent agent, not affiliatedwith or otherwise controlled by an electric utility, electric services company, electriccooperative, or governmental aggregator subject to certification under section4928.08 of the Revised Code, to the extent that the agent is under contract withsuch utility, company, cooperative, or aggregator solely to provide billing andcollection for retail electric service on behalf of the utility company, cooperative, oraggregator.
(3) "Certified territory" means the certified territory established for an electricsupplier under sections 4933.81 to 4933.90 of the Revised Code.
(4) "Competitive retail electric service" means a component of retail electric servicethat is competitive as provided under division (B) of this section.
(5) "Electric cooperative" means a not-for-profit electric light company that both isor has been financed in whole or in part under the "Rural Electrification Act of1936," 49 Stat. 1363, 7 U.S.C. 901, and owns or operates facilities in this state togenerate, transmit, or distribute electricity, or a not-for-profit successor of suchcompany.
(6) "Electric distribution utility" means an electric utility that supplies at least retailelectric distribution service.
(7) "Electric light company" has the same meaning as in section 4905.03 of theRevised Code and includes an electric services company, but excludes any self-generator to the extent that it consumes electricity it so produces, sells thatelectricity for resale, or obtains electricity from a generating facility it hosts on itspremises.
(8) "Electric !oad center" has the same meaning as in section 4933.81 of the
Revised Code.A-053
(9) "Electric services company" means an electric light company that is engaged ona for-profit or not-for-profit basis in the business of supplying or arranging for thesupply of only a competitive retail electric service in this state. "Electric servicescompany" includes a power marketer, power broker, aggregator, or independentpower producer but excludes an electric cooperative, municipal electric utility,governmental aggregator, or billing and collection agent.
(10) "Electric supplier" has the same meaning as in section 4933.81 of the RevisedCode.
(11) "Electric utility" means an electric light company that has a certified territoryand is engaged on a for-profit basis either in the business of supplying anoncompetitive retail electric service in this state or in the businesses of supplyingboth a noncompetitive and a competitive retail electric service in this state. "Electricutility" excludes a municipal electric utility or a billing and collection agent.
(12) "Firm electric service" means electric service other than nonfirm electricservice.
(13) "Governmental aggregator" means a legislative authority of a municipalcorporation, a board of township trustees, or a board of county commissionersacting as an aggregator for the provision of a competitive retail electric serviceunder authority conferred under section 4928.20 of the Revised Code.
(14) A person acts "knowingly," regardless of the person's purpose, when theperson is aware that the person's conduct will probably cause a certain result or willprobably be of a certain nature. A person has knowledge of circumstances when theperson is aware that such circumstances probably exist.
(15) "Level of funding for low-income customer energy efficiency programsprovided through electric utility rates" means the level of funds specifically includedin an electric utility's rates on October 5, 1999, pursuant to an order of the publicutilities commission issued under Chapter 4905. or 4909. of the Revised Code andin effect on October 4, 1999, for the purpose of improving the energy efficiency ofhousing for the utility's low-income customers. The term excludes the level of anysuch funds committed to a specific nonprofit organization or organizations pursuantto a stipulation or contract.
(16) "Low-income customer assistance programs" means the percentage of incomepayment plan program, the home energy assistance program, the homeweatherization assistance program, and the targeted energy efficiency andweatherization program.
(17) "Market development period" for an electric utility means the period of timebeginning on the startinq date of competitive retail electric service and ending onthe applicable date for that utility as specified in section 4928.40 of the RevisedCode, irrespective of whether the utility applies to receive transition revenues^u^d4erthis chapter.
(18) "Market power" means the ability to impose on customers a sustained price fora product or service above the price that would prevail in a competitive market.
(19) °Mercantile customer" means a commercial or industrial customer if theelectricity consumed is for nonresidential use and the customer consumes morethan seven hundred thousand kilowatt hours per year or is part of a nationalaccount involving multiple facilities in one or more states.
(20) "Municipal electric utility" means a municipal corporation that owns or operatesfacilities to generate, transmit, or distribute electricity.
(21) "Noncompetitive retail electric service" means a component of retail electricservice that is noncompetitive as provided under division (B) of this section.
(22) "Nonfirm electric service" means electric service provided pursuant to aschedule filed under section 4905.30 of the Revised Code or pursuant to anarrangement under section 4905.31 of the Revised Code, which schedule orarrangement includes conditions that may require the customer to curtail orinterrupt electric usage during nonemergency circumstances upon notification by an
electric utility.
(23) "Percentage of income payment plan arrears" means funds eligible forcollection through the percentage of income payment plan rider, but uncollected as
of July 1, 2000.
(24) "Person" has the same meaning as in section 1.59 of the Revised Code.
(25) "Advanced energy project" means any technologies, products, activities, ormanagement practices or strategies that facilitate the generation or use ofelectricity or energy and that reduce or support the reduction of energyconsumption or support the production of clean, renewable energy for industrial,distribution, commercial, institutional, governmental, research, not-for-profit, orresidential energy users, including, but not limited to, advanced energy resourcesand renewable energy resources. "Advanced energy project" also includes anyproject described in division (A), (B), or (C) of section 4928.621 of the Revised
Code.
(26) "Regulatory assets" means the unamortized net regulatory assets that arecapitalized or deferred on the regulatory books of the electric utility, pursuant to anorder or practice of the public utilities commission or pursuant to generally acceptedaccounting principles as a result of a prior commission rate-making decision, andthat would otherwise have been charged to expense as incurred or would not havebeen capitalized or otherwise deferred for future regulatory consideration absentcommission action. "Regulatory assets" includes, but is not limited to, all deferreddemand-side management costs; all deferred percentage of income payment planarrears; post-in-service capitalized charges and assets recognized in connectionwith statement of financial accounting standards no. 109 (receivables from A-055
customers for income taxes); future nuclear decommissioning costs and fueldisposal costs as those costs have been determined by the commission in theelectric utility's most recent rate or accounting application proceeding addressingsuch costs; the undepreciated costs of safety and radiation control equipment onnuclear generating plants owned or leased by an electric utility; and fuel costscurrently deferred pursuant to the terms of one or more settlement agreementsapproved by the commission.
(27) "Retail electric service" means any service involved in supplying or arrangingfor the supply of electricity to ultimate consumers in this state, from the point ofgeneration to the point of consumption. For the purposes of this chapter, retailelectric service includes one or more of the following "service components" :generation service, aggregation service, power marketing service, power brokerageservice, transmission service, distribution service, ancillary service, meteringservice, and billing and collection service.
(28) "Starting date of competitive retail electric service" means January 1, 2001.
(29) "Customer-generator" means a user of a net metering system.
(30) "Net metering" means measuring the difference in an applicable billing periodbetween the electricity supplied by an electric service provider and the electricitygenerated by a customer-generator that is fed back to the electric service provider.
(31) "Net metering system" means a facility for the production of electrical energythat does all of the following:
(a) Uses as its fuel either solar, wind, biomass, landfill gas, or hydropower, or usesa microturbine or a fuel cell;
(b) Is located on a customer-generator's premises;
(c) Operates in parallel with the electric utility's transmission and distributionfacilities;
(d) Is intended primarily to offset part or all of the customer-generator'srequirements for electricity.
(32) "Self-generator" means an entity in this state that owns or hosts on itspremises an electric generation facility that produces electricity primarily for theowner's consumption and that may provide any such excess electricity to anotherentity, whether the facility is installed or operated by the owner or by an agentunder a contract.
(33) "Rate plan" means the standard service offer in effect on the effective date ofthe amendment of this section by S.B. 221 of the 127th general assembly, July 31,
2008. A-056
(34) "Advanced energy resource" means any of the following:
(a) Any method or any modification or replacement of any property, process,device, structure, or equipment that increases the generation output of an electricgenerating facility to the extent such efficiency is achieved without additionalcarbon dioxide emissions by that facility;
(b) Any distributed generation system consisting of customer cogeneration ofelectricity and thermal output simultaneously;
(c) Clean coal technology that includes a carbon-based product that is chemicallyaltered before combustion to demonstrate a reduction, as expressed as ash, inemissions of nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or sulfurtrioxide in accordance with the American society of testing and materials standardD1757A or a reduction of metal oxide emissions in accordance with standard D5142of that society, or clean coal technology that includes the design capability tocontrol or prevent the emission of carbon dioxide, which design capability thecommission shall adopt by rule and shall be based on economically feasible bestavailable technology or, in the absence of a determined best available technology,shall be of the highest level of economically feasible design capability for whichthere exists generally accepted scientific opinion;
(d) Advanced nuclear energy technology consisting of generation III technology asdefined by the nuclear regulatory commission; other, later technology; orsignificant improvements to existing facilities;
(e) Any fuel cell used in the generation of electricity, including, but not limited to, aproton exchange membrane fuel cell, phosphoric acid fuel cell, molten carbonatefuel cell, or solid oxide fuel cell;
(f) Advanced solid waste or construction and demolition debris conversiontechnology, including, but not limited to, advanced stoker technology, andadvanced fluidized bed gasification technology, that results in measurablegreenhouse gas emissions reductions as calculated pursuant to the United Statesenvironmental protection agency's waste reduction model (WARM).
(g) Demand-side management and any energy efficiency improvement.
(35) "Renewable energy resource" means solar photovoltaic or solar thermalenergy, wind energy, power produced by a hydroelectric facility, geothermalenergy, fuel derived from solid wastes, as defined in section 3734.01 of the RevisedCode, through fractionation, biological decomposition, or other process that doesnot principally involve combustion, biomass energy, biologically derived methanegas, or energy derived from nontreated by-products of the pulping process or woodmanufacturing process, including bark, wood chips, sawdust, and lignin in spentpulping liquors. "Renewable energy resource" includes, but is not limited to, any
A-057
fuel cell used in the generation of electricity, including, but not limited to, a protonexchange membrane fuel cell, phosphoric acid fuel cell, molten carbonate fuel cell,or solid oxide fuel cell; wind turbine located in the state's territorial waters of LakeErie; methane gas emitted from an abandoned coal mine; storage facility that willpromote the better utilization of a renewable energy resource that primarilygenerates off peak; or distributed generation system used by a customer togenerate electricity from any such energy. As used in division (A)(35) of thissection, "hydroelectric facility" means a hydroelectric generating facility that islocated at a dam on a river, or on any water discharged to a river, that is within orbordering this state or within or bordering an adjoining state and meets all of thefollowing standards:
(a) The facility provides for river flows that are not detrimental for fish, wildlife, andwater quality, including seasonal flow fluctuations as defined by the applicablelicensing agency for the facility.
(b) The facility demonstrates that it complies with the water quality standards ofthis state, which compliance may consist of certification under Section 401 of the"Clean Water Act of 1977," 91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstratesthat it has not contributed to a finding by this state that the river has impairedwater quality under Section 303(d) of the "Clean Water Act of 1977," 114 Stat.870, 33 U.S.C. 1313.
(c) The facility complies with mandatory prescriptions regarding fish passage asrequired by the federal energy regulatory commission license issued for the project,regarding fish protection for riverine, anadromous, and catadromous fish.
(d) The facility complies with the recommendations of the Ohio environmentalprotection agency and with the terms of its federal energy regulatory commissionlicense regarding watershed protection, mitigation, or enhancement, to the extentof each agency's respective jurisdiction over the facility.
(e) The facility complies with provisions of the "Endangered Species Act of 1973,"87 Stat. 884, 16 U.S.C. 1531 to 1544, as amended.
(f) The facility does not harm cultural resources of the area. This can be shownthrough compliance with the terms of its federal energy regulatory commissionlicense or, if the facility is not regulated by that commission, through developmentof a plan approved by the Ohio historic preservation office, to the extent it hasjurisdiction over the facility.
(g) The facility complies with the terms of its federal energy regulatory commissionlicense or exemption that are related to recreational access, accommodation, andfacilities or, if the facility is not regulated by that commission, the facility complieswith similar requirements as are recommended by resource agencies, to the extentthey have jurisdiction over the facility; and the facility provides access to water tothe public without fee or charge.
A-058
(h) The facility is not recommended for removal by any federal agency or agency ofany state, to the extent the particular agency has jurisdiction over the facility.
(B) For the purposes of this chapter, a retail electric service component shall bedeemed a competitive retail electric service if the service component is competitivepursuant to a declaration by a provision of the Revised Code or pursuant to anorder of the public utilities commission authorized under division (A) of section4928.04 of the Revised Code. Otherwise, the service component shall be deemed anoncompetitive retail electric service.
R.C. § 4928.01
Amended by 128th General Assembly File No. 47, SB 181, § 1, eff. 9/13/2010.
Amended by 128th General Assembly File No. 48, SB 232, § 1, eff. 6/17/2010.
Amended by 128th General Assembly File No. 9, HB 1, § 101.01, eff. 10/16/2009.
Effective Date: 10-05-1999; 01-04-2007; 2008 SB221 07-31-2008
This section is set out twice. See also § 4928.01, as amended by 129th GeneralAssembly File No. 98, SB 289, § 1, eff. 7/16/2012.
4928.02 State policy.
It is the policy of this state to do the following throughout this state
(A) Ensure the availability to consumers of adequate, reliable, safe, efficient,nondiscriminatory, and reasonably priced retail electric service;
(B) Ensure the availability of unbundled and comparable retail electric service thatprovides consumers with the supplier, price, terms, conditions, and quality optionsthey elect to meet their respective needs;
(C) Ensure diversity of electricity supplies and suppliers, by giving consumerseffective choices over the selection of those supplies and suppliers and byencouraging the development of distributed and small generation facilities;
(D) Encourage innovation and market access for cost-effective supply- anddemand-side retail electric service including, but not limited to, demand-sidemanagement, time-differentiated pricing, and implementation of advancedmetering infrastructure;
(E) Encourage cost-effective and efficient access to information regarding theoperation of the transmission and distribution systems of electric utilities in order topromote both effective customer choice of retail electric service and thedevelopment of performance standards and targets for service quality for allconsumers, including annual achievement reports written in plain language;
(F) Ensure that an electric utility's transmission and distribution systems areavailable to a customer-generator or owner of distributed generation, so that thecustomer-generator or owner can market and deliver the electricity it produces;
(G) Recognize the continuing emergence of competitive electricity markets throughthe development and implementation of flexible regulatory treatment;
(H) Ensure effective competition in the provision of retail electric service byavoiding anticompetitive subsidies flowing from a noncompetitive retail electricservice to a competitive retail electric service or to a product or service other thanretail electric service, and vice versa, including by prohibiting the recovery of anygeneration-related costs through distribution or transmission rates;
(I) Ensure retail electric service consumers protection against unreasonable salespractices, market deficiencies, and market power;
(3) Provide coherent, transparent means of giving appropriate incentives totechnologies that can adapt successfully to potential environmental mandates;
(K) Encourage implementation of distributed generation across customer classesthrough regular review and updating of administrative rules governingAc6&^alissues such as, but not limited to, interconnection standards, standby charges, andnet metering;
(L) Protect at-risk populations, including, but not limited to, when considering theimplementation of any new advanced energy or renewable energy resource;
(M) Encourage the education of small business owners in this state regarding theuse of, and encourage the use of, energy efficiency programs and aiternativeenergy resources in their businesses;
(N) Facilitate the state's effectiveness in the global economy. In carrying out thispolicy, the commission shali consider rules as they apply to the costs of electricdistribution infrastructure, including, but not limited to, line extensions, for thepurpose of development in this state.
Effective Date: 10-05-1999; 2008 5B221 07-31-2008
4928 . 08 Certification to provide retail electric competitive service.
(A) This section applies to an electric cooperative, or to a governmental aggregatorthat is a municipal electric utility, only to the extent of a competitive retail electricservice it provides to a customer to whom it does not provide a noncompetitiveretail electric service through transmission or distribution facilities it singly or jointlyowns or operates.
(B) No electric utility, electric services company, electric cooperative, orgovernmental aggregator shall provide a competitive retail electric service to aconsumer in this state on and after the starting date of competitive retail electricservice without first being certified by the public utilities commission regarding itsmanagerial, technical, and financial capability to provide that service and providinga financial guarantee sufficient to protect customers and electric distribution utilitiesfrom default. Certification shall be granted pursuant to procedures and standardsthe commission shall prescribe in accordance with division (C) of this section,except that certification or certification renewal shall be deemed approved thirtydays after the filing of an application with the commission unless the commissionsuspends that approval for good cause shown. In the case of such a suspension,the commission shall act to approve or deny certification or certification renewal tothe applicant not later than ninety days after the date of the suspension.
(C) Capability standards adopted in rules under division (B) of this section shall besufficient to ensure compliance with the minimum service requirements establishedunder section 4928.10 of the Revised Code and with section 4928.09 of the RevisedCode. The standards shall allow flexibility for voluntary aggregation, to encouragemarket creativity in responding to consumer needs and demands, and shall allowflexibility for electric services companies that exclusively provide installation ofsmall electric generation facilities, to provide ease of market access. The rules shallinclude procedures for biennially renewing certification.
(D) The commission may suspend, rescind, or conditionally rescind the certificationof any electric utility, electric services company, electric cooperative, orgovernmental aggregator issued under this section if the commission determines,after reasonable notice and opportunity for hearing, that the utility, company,cooperative, or aggregator has failed to comply with any applicable certificationstandards or has enaaged in anticompetitive or unfair, deceptive, or unconscionableacts or practices in this state.
(E) No electric distribution utility on and after the starting date of competitive retailelectric service shall knowingly distribute electricity, to a retail consumer in thisstate, for any supplier of electricity that has not been certified by the commissionpursuant to this section.
Effective Date: 10-05-1999
A-062
4929.01 Alternate rate plan for natural gas company definitions.
As used in this chapter:
(A) "Alternative rate plan" means a method, alternate to the method of section4909.15 of the Revised Code, for establishing rates and charges, under which ratesand charges may be established for a commodity sales service or ancillary servicethat is not exempt pursuant to section 4929.04 of the Revised Code or for adistribution service. Alternative rate plans may include, but are not limited to,methods that provide adequate and reliable natural gas services and goods in thisstate; minimize the costs and time expended in the regulatory process; tend toassess the costs of any natural gas service or goods to the entity, service, or goodsthat cause such costs to be incurred; afford rate stability; promote and rewardefficiency, quality of service, or cost containment by a natural gas company;provide sufficient flexibility and incentives to the natural gas industry to achievehigh quality, technologically advanced, and readily available natural gas servicesand goods at just and reasonable rates and charges; or establish revenuedecoupling mechanisms. Alternative rate plans also may include, but are not limitedto, automatic adjustments based on a specified index or changes in a specified costor costs.
(B) "Ancillary service" means a service that is ancillary to the receipt or delivery ofnatural gas to consumers, including, but not limited to, storage, pooling, balancing,and transmission.
(C) °Commodity sales service" means the sale of natural gas to consumers,exclusive of any distribution or ancillary service.
(D) "Comparable service" means any regulated service or goods whose availability,quality, price, terms, and conditions are the same as or better than those of theservices or goods that the natural gas company provides to a person with which itis affiliated or which it controls, or, as to any consumer, that the natural gascompany offers to that consumer as part of a bundled service that includes bothregulated and exempt services or goods.
(E) "Consumer" means any person or association of persons purchasing, delivering,storing, or transporting, or seeking to purchase, deliver, store, or transport, naturalgas, including industrial consumers, commercial consumers, and residentialconsumers, but not including natural gas companies.
(F) "Distribution service" means the delivery of natural gas to a consumer at theconsumer's facilities, by and through the instrumentalities and facilities of a naturalgas company, regardless of the party having title to the natural gas.
(G) "Natural gas companv" means a natural gas company, as defined in section4905.03 of the Revised Code, that is a public utility as defined in section 4905.02 ofthe Revised Code and excludes a retail natural gas supplier. A_063
(H) "Person," except as provided in division (N) of this section, has the samemeaning as in section 1.59 of the Revised Code, and includes this state and anypolitical subdivision, agency, or other instrumentality of this state and includes theUnited States and any agency or other instrumentality of the United States.
(I) °Billing or collection agent" means a fully independent agent, not affiliated withor otherwise controlled by a retail natural gas supplier or governmental aggregatorsubject to certification under section 4929.20 of the Revised Code, to the extentthat the agent is under contract with such supplier or aggregator solely to providebilling and collection for competitive retail natural gas service on behalf of thesupplier or aggregator.
(J) "Competitive retail natural gas service" means any retail natural gas service thatmay be competitively offered to consumers in this state as a result of revisedschedules approved under division (C) of section 4929.29 of the Revised Code, arule or order adopted or issued by the public utilities commission under Chapter4905. of the Revised Code, or an exemption granted by the commission undersections 4929.04 to 4929.08 of the Revised Code.
(K) "Governmental aggregator" means either of the following:
(1) A legislative authority of a municipal corporation, a board of township trustees,or a board of county commissioners acting exclusively under section 4929.26 or4929.27 of the Revised Code as an aggregator for the provision of competitiveretail natural gas service;
(2) A municipal corporation acting exclusively under Section 4 of Article XVIII, OhioConstitution, as an aggregator for the provision of competitive retail natural gasservice.
(L)(1) "Mercantile customer" means a customer that consumes, other than forresidential use, more than five hundred thousand cubic feet of natural gas per yearat a single location within this state or consumes natural gas, other than forresidential use, as part of an undertaking having more than three locations withinor outside of this state. "Mercantile customer" excludes a customer for which adeclaration under division (L)(2) of this section is in effect pursuant to that division.
(2) A not-for-profit customer that consumes, other than for residential use, morethan five hundred thousand cubic feet of natural gas per year at a single locationwithin this state or consumes natural gas, other than for residential use, as part ofan undertaking having more than three locations within or outside this state mayflle a declaration under division (L)(2) of this section with the public utilitiescommission. The declaration shall take effect upon the date of filing, and by virtueof the declaration, the customer is not a mercantile customer for the purposes ofthis section and sections 4929.20 to 4929.29 of the Revised Code or the purposesof a governmental natural gas aggregation or arrangement or other contractentered into after the declaration's effective date for the supply or arranging of thesupply of natural gas to the customer to a location within this state. The cuQtWermay file a rescission of the declaration with the commission at any time. Therescission shall not affect any governmental natural gas aggregation or
arrangement or other contract entered into by the customer prior to the date of thefiling of the rescission and shall have effect only with respect to any subsequentsuch aggregation or arrangement or other contract. The commission shall prescriberules under section 4929.10 of the Revised Code specifying the form of thedeclaration or a rescission and procedures by which a declaration or rescission maybe filed.
(M) "Retail natural gas service" means commodity sales service, ancillary service,natural gas aggregation service, natural gas marketing service, or natural gasbrokerage service.
(N) "Retail natural gas supplier" means any person, as defined in section 1.59 ofthe Revised Code, that is engaged on a for-profit or not-for-profit basis in thebusiness of supplying or arranging for the supply of a competitive retail natural gasservice to consumers in this state that are not mercantile customers. "Retail naturalgas supplier" includes a marketer, broker, or aggregator, but excludes a natural gascompany, a governmental aggregator as defined in division (K)(1) or (2) of thissection, an entity described in division (B) or (C) of section 4905.02 of the RevisedCode, or a billing or collection agent, and excludes a producer or gatherer of gas tothe extent such producer or gatherer is not a natural gas company under section4905.03 of the Revised Code.
(O) "Revenue decoupling mechanism" means a rate design or other cost recoverymechanism that provides recovery of the ffxed costs of service and a fair andreasonable rate of return, irrespective of system throughput or volumetric sales.
Effective Date: 06-26-2001; 2008 SB221 07-31-2008
4929 . 02 Policy of state as to natural gas services and goods.
(A) It is the policy of this state to, throughout this state:
(1) Promote the availability to consumers of adequate, reliable, and reasonablypriced natural gas services and goods;
(2) Promote the availability of unbundled and comparable natural gas services andgoods that provide wholesale and retail consumers with the supplier, price, terms,conditions, and quality options they elect to meet their respective needs;
(3) Promote diversity of natural gas supplies and suppliers, by giving consumerseffective choices over the selection of those supplies and suppliers;
(4) Encourage innovation and market access for cost-effective supply- and demand-side natural gas services and goods;
(5) Encourage cost-effective and efficient access to information regarding theoperation of the distribution systems of natural gas companies in order to promoteeffective customer choice of natural gas services and goods;
(6) Recognize the continuing emergence of competitive natural gas marketsthrough the development and implementation of flexible regulatory treatment;
(7) Promote an expeditious transition to the provision of natural gas services andgoods in a manner that achieves effective competition and transactions betweenwilling buyers and willing sellers to reduce or eliminate the need for regulation ofnatural gas services and goods under Chapters 4905. and 4909. of the RevisedCode;
(8) Promote effective competition in the provision of natural gas services and goodsby avoiding subsidies flowing to or from regulated natural gas services and goods;
(9) Ensure that the risks and rewards of a natural gas company's offering ofnonjurisdictional and exempt services and goods do not affect the rates, prices,terms, or conditions of nonexempt, regulated services and goods of a natural gascompany and do not affect the financial capability of a natural gas company tocomply with the policy of this state specified in this section;
(10) Facilitate the state's competitiveness in the global economy;
(11) Facilitate additional choices for the supply of natural gas for residentialconsumers, including aggregation;
(12) Promote an alignment of natural gas company interests with consumer interestin energy efficiency and energy conservation.
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(B) The public utilities commission and the office of the consumers' counsel shallfollow the policy specified in this section in exercising their respective authoritiesrelative to sections 4929.03 to 4929.30 of the Revised Code.
(C) Nothing in Chapter 4929. of the Revised Code shall be construed to alter thepublic utilities commission's construction or application of division (A)(5) of section4905.03 of the Revised Code.
Amended by 128th General Assembly File No. 43, SB 162, § 1, eff. 9/13/2010.
Effective Date: 06-26-2001; 2008 5B227. 07-31-2008
4929 . 20 Certifvinca governmental acictrectators and retail natural gassuppliers.
(A) No governmental aggregator as defined in division (K)(1) of section 4929.01 ofthe Revised Code or no retail natural gas supplier shall provide a competitive retailnatural gas service on or after thirteen months following the effective date of thissection to a consumer in this state without first being certified by the public utilitiescommission regarding its managerial, technical, and financial capability to providethat service and providing reasonable financial assurances sufficient to protectcustomers and natural gas companies from default. In addition, a retail natural gassupplier may be required to provide a performance bond sufficient to protectcustomers and natural gas companies from default. Certification shall be grantedpursuant to procedures and standards the commission shall prescribe in accordancewith rules adopted under section 4929.10 of the Revised Code. However,certification or certification renewal shall be deemed approved thirty days after thefiling of an application with the commission unless the commission suspends thatapproval for good cause shown. In the case of such a suspension, the commissionshall act to approve or deny certification or certification renewal to the applicant notlater than ninety days after the date of the suspension.
(B) Capability standards adopted in rules pursuant to division (A) of this sectionshall be sufficient to ensure compliance with section 4929.22 of the Revised Codeand with the minimum service requirements established under section 4929.23 ofthe Revised Code. The standards shall allow flexibility for voluntary aggregation, toencourage market creativity in responding to consumer needs and demands. Therules shall include procedures for biennially renewing certification.
(C)(1) The commission may suspend, rescind, or conditionally rescind thecertification of any retail natural gas supplier or governmental aggregator issuedunder this section if the commission determines, after reasonable notice andopportunity for hearing, that the retail natural gas supplier or governmentalaggregator has failed to comply with any applicable certification standardsprescribed in rules adopted pursuant to this section or section 4929.22 of theRevised Code.
(2) An affected natural gas company may file an application with the commissionfor approval of authority to recover in accordance with division (C)(2) of this sectionincremental costs reasonably and prudently incurred by the company in connectionwith the commission's continuation, suspension, rescission, or conditional rescissionof a particular retail natural gas supplier's certification under division (C)(1) of thissection. Upon the filing of such an application, the commission shall conduct anaudit of such incremental costs as are specified in the application. Cost recoveryshall be through a rider on the base rates of customers of the company for whichthere is a choice of supplier of commodity sales service as a result of revisedschedules approved under division (C) of section 4929.29 of the Revised Code, arule or order adopted or issued by the commission under Chapter 4905. of the
A-068
Revised Code, or an exemption granted by the commission under sections 4929.04to 4929.08 of the Revised Code. The rider shall take effect ninety days after thedate of the application's filing unless the commission, based on the audit resultsand for good cause shown, sets the matter for hearing. After the hearing, thecommission shall approve the application, and authorize such cost recovery ridereffective on the date specified in the order, only for such incremental costs as thecommission determines were reasonably and prudently incurred by the company inconnection with the continuation, suspension, rescission, or conditional rescission ofa retail natural gas supplier's certification under division (C)(1) of this section. Anyproceeding under division (C)(2) of this section shall be governed by Chapter 4903.of the Revised Code.
(D) No natural gas company, on and after thirteen months following the effectivedate of this section, shall knowingly distribute natural gas, to a retail consumer inthis state, for any governmental aggregator, as defined in division (K)(1) of section4929.01 of the Revised Code, or retail natural gas supplier, that has not beencertified by the commission pursuant to this section.
Effective Date: 06-26-2001
Chapter 4901:1-27 Certification of Governmental Aggregators andRetail Natural Gas Suppliers
4901:1-27-01 Definitions.
As used in this chapter:
(V) "Retail natural gas brokerage service" means assuming the contractual andlegal responsibility for the sale and/or arrangement for the supply of competitiveretail natural gas service to a retail customer in this state without taking title to thenatural gas.
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on zrvd t y iinc#&t_ th_it °arrotn ru^r." as ic=it,tedtx} t9tu Cert,it'rc.aior.
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the lin,^ ant! become oct-tt lie.d it2 the past.
jn^:isston crk®d !3v nndintt ihnt BuGa x}.• iaile.& to incet its hurctEtri nl pror,l
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^ C'o^t^pl^u'nui's 1^a^licati+
This foregoing document was electronically filed with the Public Utilities
Commission of Ohio Docketing Information System on
1211t2011 4:24:40 PM
in
Case No(s). 10-0693-GE-CSS
Summary: App for Rehearing Cornplainant's Application for Rehearing electronically filed byMr. Matthew Yackshaw on behalf of Buckeye Energy Brokers, Inc.
(^A t`i.ri1'1 13i 1c tl I1T.t 1 itiS CC)\411NSIr)'v O1'; 0113()
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ns.t^t^fisl ,^^ ittr^^crt^tnt^tbl^.° 1l.^ttifr :1'(,ar^a'titr ,l-frrtrrr>a'irx S}x^itil+ie.l 1 : 1'l'fU t`_'011). I20 Ohio
4 S9. ? J 114) hi r-11 k9 <tt 2O, cit c msrellc ictn N'eni^iiiei,i n1 `<, v (?:(1!1dj
1 p-d t)hio ^t.wd >3t, 200.a .f){tio6707 ut ^0. [lo^^'t1^er. iia rtdwt to in%ol<e dre tura;,tl,cion ol the
t)t.icI :4uhiarnc (Yui.. tht hrit} ceb.utt icde.1v of dtC Ot'der Oi t'lte Coirnn = 7im Inura I.ir._Q10
it5r t'nc^,u u'i,^ . 1n ^.q^lrf?c:iiui u) r t'e h3c ui i r is u µu itiL lii0 Mt htttrclw^i.r t<^ oht uri,rn^ r+ aiu;v
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I.'C i!1iiUlc I it+ lrtlt)11 L7€hl () lClcP 1T 1Ca1 lt1 13[ICI:CV L' iee.l<t1P! tt\l^tv of aA o s Rig 17IDC.IlI;9 el cC10C 91
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A-077
l^nme^it t3fl:rrr^r°Nt^. 1
1'h:, C:rnmt1p.ion its poirc.rs and jt 1 2tnCl SCli
T cth•clt [ alit^n tt cuuhttftwt laci}rhu!c "hiclt is .na rett ii3" Fot 1't; ttte Ge na.il A5scnl in
^either R.( 7`^.C:I at sccl. or It C. 49;') Itl ctse.q ttE7c'^t:eruttcttton>tatu,e5 ).
llae Lomtltistun.. in h; c+We . Si oad Ehe.d "to tte imohad itt `erianonw" Ctt ° iPte >ttplah' W
t t? }?S +int f R^li,ti. tni ctaatt ttmwt '.teern,~ageCi in <tctvit<< tltat. enoecis titt• ler=el of utvnh'eanen#
of tr cartsttltantY (t7piniuiA autl Cirac•r. p. 18, eaitpltatiis atttlcd) F3v 51, ltoltiittg. tl'tc Comt a.sic,n
ltl, cretctcd a luah(att9i^ QU crtnWultettrts,yL rebti anl i2[ttity th.tt c.nlls it,t.lt ac cott:uhmtt trra^ il:ndd
tite ;irquir,nnents; of 11
tntot d P:a^ sa
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tit:tftti tat t7te. Chnxsl rti,sznhl;. tlid t
7k,ole tr+ cvist b4cau,c; no suclt luctlihrrie »as crcnicd i>r pronitt
i.^ortiticomy Slniittcs. foca,sina pn K c.l t:si!i.cation cf a cvnstt:tnnt;
t`cnnni"" >n htt5 irnlrrot.^ct^lp ulaa;od it, t;ocnmon Paln;er'n ;el,f'-itrol, ,od label srt' conlii!!ant.
iOt€M i%tn,itttpan th Lstx9catiab[v -xttlW6ttivo sctwVes tmd ,t<aions .lttinuiz thF p^uecrt,ifl^ali[rn
p tiixi
t ha;?ior 4938 o1 ?.17c t<^ined ct cc, the ;twtatnro frznnt'
ii^ail J_.I "iuc Sei^lue i"CRf' "7. 4tl 492S.06 pri^^^ides thtat "^LJa
't,m?ctilttc
i y. tlt::^.
.,cLIllY11S5I+^11 S}i8ll atlr)j'f 13t1u.'+ to v~Cl!\ otkf this ChitiJtiC1" }'ltl1\`CvW. (.11C,rC [llC C11150117tttt' 17D
ltrcrvisi^^rtc in Chxl7tri =113?_8 tFluch allint the f.'onni^:,`ion to even atn5hdkr Narh,ll'rr a conai3tam
cau^.ili:ntt.is axanl5t ii ,n thr nccti to 1C a^rtiiicu u^itltLrUt rUwtird to Ihte arttliti^5 i>l the
';'urtncr. thc ^%orct cons^_ilulni-' nito (h)Qs nrtt rqtpeat^- rxt Ohio Adnru^is,trtii.^zc Cocc Ch;,InW
1-!,)t?C 1-.'1, »^hi, h ^untairt^ tlc CnntuE,^u>rt'^ itdcs Fnr the aplilitaturand muFiarccirrcnt u!
CT.:IIl?tct 492J.
}.s uvo J^ onsult 7 a; ra-,.,r Iri Chanter'9'Y is in Se!<eicCo invnlsfi;;3[[! er:e)rgy EetytCfeirt pia
me.elv
A-078
Stl relttrl; . (`lr<Zpttn 4929 oi the kev rsed Code pw=idcs the statu42rry h'an)c"
I mttieak C,a; 4csA.ces ( ti-T. (LC 4929.1U I?r<mtdes iSint `-[t} pto-blic
ta:litie.s aOtirntissitrn Slaall itdoltt rules tu carry c)n1 .ltin chn{)tct rl_-,att) tae)'e ate ab;uJtAtc:lt tso
pr©vishra)> ir= Chapter +tt?y :\I tch allmw thc C;ut7lmisSiE)a to. ent?`siclci tncOheA ^t cuttsxtltant ts
e.a:eznpi tiorrm the t',ued to l7e c ttlliul without teptid to the .tctivitite:s o1 tJte c011atilfant. i'urther',
Che o^ortl °cttrtstift.ani" ral Ql1it) At1 utniti nuv^ C'.nde Ch^yptcr 49-0;:1-24,
wI'tch coui,oh i< rlic {f)twa7ission'^,rtles for ilte apptlrcatioer and unircxCkt^r,ni al Ch,ilater 49^=9.
!i7 ^t.nintttr^. nottlzer ihe C3ecrct il Assemhly: t3i^r the('oninti^sion ti>oii, dta, evcr
c.t>>5iderct' tlw tI'tsQficatiatz of a cbi)sultant m csarr! anr ccetglv: iti thr tam, iti 1'act, the eanlv p.riEu
rec.t>ior'a th.I Ihe Ctm)nrisston htts cun.i<Icred the, cono^-pt of s:'t)n,,ultan't ^\as clurag CI)r
afcinti4tin g procc:, tili t'k.tr` 14hcrc Nlitrer. it^Li1; t^r atin fi)r a wn;ultcant 1«upl.clc.
J3utthe C:m ennsuit.:nt Or cunVtictc y C ml)e[Stiae
ust he cetrfitFe(l. (4t`1-Ifo(15. t7p,tiniart auCl DtYJu, N1,trct^ 30. 2000 . 11 3_
.nl7liasia .tida9t `antiletrl}^ )rt (he r.ii4nt,th,ittg p;ucc;ss ittr l'1ANCi`+. the C'nnimtssit,n qtated..
.tchett , c}n,uli;,ti)f or ut'tnrnactx)r perfttrrns it eompxetitn'c sm-Nice, the.^ "911 1)0 tequired to te
ce.rtifitxd tnr..cr th::bc rttle;." (E:1-1371 1 u)dhnt attc, {}tdcl''iove
cleeiJ) C nlikc Chis cosi?, 00,1
bar 20. 2f;f1L at 24. efuphasm
i g Irrocvss. Ci e< omuaia<ron`. Goeiie ^ias ,nt t1kr
I th4 t;ottta+It,rnr, a.nd not its rta t cl,r•sai'ftc::rtie3'n <irl.iheling.
he Ohu) tiuhremc t'otiu reecntiy actdt.asul an. V;sttc af w•he¢hor the: C"nut7is15
._Iea!e tvid apply ti ^I^i„ificutiur t lt-,tcd spccilicttllv irr tttr >t,ttuCe. tn t•ic r^a^yrrhrttutr;.
t'hruu;!,h a• t\l tMt WE irtirm tiuGi <Yrder. Thr c.ise of ita re Co'trrrt!w.c ^oarrherrt Put) rr C v di^eti^;cs
tthethwr 11,r ( 'ornnu„inn rt-t^ pcrrrutwd tu create adttiiionitl cyelot eti of canytng cq.5ts r,bach
^t^ali! h. wc,)t_reJ h^ ta pt,tti.:I e.Cint;tnm Etr t.it'i,t'rrnt7tenttAl ii;\e5linanls. lrt '<` ln]aJvoj
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A-079
Oliio Supico:c t"otttt :uunci that Ckte COn'nlii>sit1n s t;rcation oF autcgo ites atad cl tlcatiun,
which are not cr.tnieniplttt-:cl o, t^cus tv{ I)° the Iv .tsed Cocle or ilic AdenPnisurnuvt C'i^de }s 1
te:;uli %ae cir, not 't;c4tcvc 'Che t icsteritl -As~setnhl^> intant9ed;' tonc(udin, uz,le^att (hat tht }=1.xii
(;tn^Aua,-,<oi tI ]d.. at.:4;
stiItam ;nt:,tthute itt the t)pitrian and (.Irder, Ihe +,_1?nrmas°;iou e^c,:eded
492116 u3d 4929.10, hv a4<q,fitit5 ittd ca'eatvig u1';sonihft in tx,thlf fh ( .rettera rehe cliUq 0
etintt lttmf e.ven-wtitmn rules wI :I of the ,'cit) c u1: ( hzilat<r, 492$ i, ,d =I929.
etpec ivev. tt csh.tiuad the ac Tc i is a"n rtdes. hl ci.ntiiV, tltt r rr-gtar'Y aP a asnsuliant',
^^1ti4a is ttr,t es'an coni.innplettcd hzeit]tet 0 .a.C. t h,zpterS 49f)1:I-31 or 4901 : t-?t). `.nd b I'aileEi
to Coilo"N i ts os<<u euirlnrtcv !nv ..t4atting u Ir,opiloae tiar consut.iu.=;; tml7oivt r«ai d to .vhcthcr tl-r::
consult.utt L?etRyn;ty at+^ <rx,tltrtrtiti: serlic.cs or arrttgc4litr the provivhm qt C:IZt S or C-12NGS.
tI c Co3in1'.::si0n has 4l+uNr1"' ri^'Litt'tl its )\n^I] Jtlti^ttiC:it?i7 arid }>0`n%1=a- k7) e.CC¢`vC,iLi^a the 4tlltbRair^
i2tetttc<9 13) tltc trcrt itt.1 r=ts`';c'mblv, and thcn tttiling tu'i''oll€ttw ih own itrlEs. (tt ;hort, t'tt¢re is no
sttch thin.; as a cni2^ultar^t tan131o1e tHnctwr thc I<zw t^tt? trt that is Ihti ex7ct CItbt;t 01 thC
iition iuid Clrtler.
cx_^ _li
lhQ C'i7n"tuti5ou (>h¢niun aird Orler is tnPernally tncnnsictent in its in^ctpii^iatfon nnd
,rl,ihlie.,ui,rn nf ilic t,^.'tu.s "e0rt7106tive : eii ju,^, :a.ld aaeulgiu - an4 io cm:+tit)n oF thc coMo,tltu1t
Trx^pltoi^.
lhc t'o:nnu^; uti ttckituth9,i.l ^cs .tw €^ticzt I^^t^'tit^s tstti7 tesl_^.^t ro Iltr, cI¢ts5i1^i.unon i^f'tt
coit<,iltai.t S_C)pinittn t<trd ilic en(l. the Crtrittnt;sian us y;i:u
hnlilin > an(1 insteacl swstes Ltn OhWan m^l'tieh is inten.tal4y tncatt3i=,tcet an<9ealicel;^ ^^srtnit
ilic cree;ttor •,r a cc, tsuit,tnt 'oopl'totz in sntxravcntiott o'f titc f cttiticndon Stattitr:s.
A-080
Tho Cbrnnuissiott eu'.-ktn» otc.fgcs thrrt tho fircus tt[ ti7is c€ts4. tutdcr tlac C'eitilltiitinn
`aiututel, k Ohctha' or not ',t'.tnc.r strunged Cur th.: sulrpiC of CRr'S rt, C1v,iUS t^> cei5t_n3ters,
1,v^iuri jir. (7rdei. p<ts_e 18) IhiS is hecawe, t1' Palmi?r tiratt (ed. ior the suprl} o(" C1tT;S cr
t R:a,S, then it has t.nE a;erl in Vhe pet konnt,tc;e of cumpetitive savtccs under th: Ctt°tii-ention
^tattu:es atkl muwt t7c sci tiiied wit)t the C'rt'ltnti>sinn (Jn this iost e the C tntnti:s5i>>z puooides:
^uir 4ile tetm t.r;9lao,:_ 11ii: C'.n^ll1`1i^Sion
10 ctl 7}71nPt of it'+ pCiiJJ' Ci^C2i'p71L12L1LllilS fl'i%6r7L1tIFa^r t13. c^ 1^4ltLC.lUf}tt of
Colault2+iit." Rpocifi;:a(1y, the C'otnmis,mn rec.r tlizr:: tfartt it has)^>r:.'rtntt:h.^ dvtcrntinacl that ;art e.tt(tt^' anzt} nperatu iai thU citkrautt of ^
wr^.t^alta,tt tii?h.,xat the nc..tl to be ec ttDeCE as tt tnlllie tali" procWed ii is
not ert ;aged i n the pe.rfunnttnce af' a ctimkretitivc seas t4u" Bctset.l on thisi tu^inE['clitt.Lc iiun. die: C'nrrtmisSicsn cch ..vcs that, Iti be irirulvel in
[i>r tl;c Atitt[tl) of C'I:il. S cts C.'.3t\(i`i. an entitw uiuat be eti};agcc] in
aetiN it^ fGat exreM the iecel (r1' inrtttx-swuttt-tif It cunsultslnt. tCaltitnon
a12ctJRier.pa^-JO 1$.emChctsisaddecl.ituernst'.citzuions.ntntt'ca)
T6^ t'c^ntnti>,ia^tt tl^^,ti ttiakes lltc i1logical a7;ickuEicm tlurt inerekv hecou;e, sa ounstdtttti;
dUPN not CiITHIii'.C. P?w tlle stll?17 C,5' ir t:4tes ittrtnercl tc be cQttiti,ecl. But thC
.ontntis>ion_ itt itn privr Itolatir,s: Ptin ^atabkJ^l7ed Phzu tlte clnssitc:"tt,ion a^ <t cottst
Ct7Il1}71t:icl^IT[Ci(:^itllf 3171f t11311 t11C L11n1} I'dlt'-Vtllit iS3i{C is yt'}lollCr tik,' Coll:itlll:
'he pcrfot n;lltcc i>[ t ct tttnetih, c. scnvicru or ttrrattunne 'rCn PFu supply nf C h}.i5 oi ('(L\ Cr,`i.
1n,14,od. :he C'onutx,sion litlds that bcuuse Palmer has S^lt^cl;ss.tiekl ilseEl as s
n>uhra3t. it tttust ncrt h'^ au^ 3`t'xl in the nr,rlrtntttnice' of a cttnnpcuir.^ h,r..in• ^A5 such. thc
trnuni>si Ottiniun ttncl t).dar is inctrnsi;aent nut pah^
nthct r;:rt^;ttrnt: m,at;c in tlie f)17iniou and ()rCler=ls+a
ith its prirar httikdit)&s. bw etlso fha
t^i,iclc2ye-tc 1n: 11;uO o^at;vc^ .,,zlinlric int,pat Hiidngefnrcie;upplynlCRF`;=rffdNCn.PwtW^
^,^o<ea nf thi^ portion of FF-:^rt,i n,r i t Vt :vil- ,rcett thr_ r.rn6it;on of Utn Cprna'usGlon. Y-081
Assi«ntnent[ of Ifrrn
ilrt t^;o:ntnla^lrlit attelnpts _n ciallne tht: ttAmi[ics of a contl;lint in lts Opillit,n anc€
tltiinltt1n,'.4 t[tat t13z. i.otarmissinlt'S rtlkes uuntain m,luhi;ulq rel,tti^^c ttr
cllYtlll(2Ui+I .n,^ tl7c 8ta14^tFe:5 trf tt,n^alauClt; :a,tC^{ ut'O^CiYS.
fjt,^ (',}tnnlitall)It Stl-1f4s tl}}.t '^pYtttilitlFS't ti) t11C ( d)7:IlIlniSiOn s cXl*,tiIlL elc-Ltt Ic.iii LIIKI D'<i'Sill^kll
i as r-nies. tlrctTcis twttbigt i[y relative to disiinguisllit>.g the
tjt,ol.crs." ( 1)pinirll and (.)nh r 19-2fl, err^tiii
1r1 otlor :carcfs
certtr'al is,uo t3f thiti e:
I. inTent;tl t:i1.1 l0ns Of
s
s t17e Iv4iiioir tlurt (iettr is .1 Putent a.nhtu!ty t,rr tl,e
'^ ttcliti^fiii.s Y"Zt., in staitc oi, tht; .:Irnbituii,.'the
rn,L7issr.ni .qa[cs «ltz .,bu,lnte asstunneu Ehva,t PMncr`s maians wvav tht ai'a conaultemtand
not ctlnltlc`tlcce. U an .^CI'1'!tnl`,tr:l7tarulv is i1md71t,>Uilus. LIlc; i)rO(rCt %vti.A qr rntC 13lCttnk? II cxttlto[
[x,st;ihli^ h.; t.^ I'ctrt^rtl.xe the 1411aiYa_n of sa w'o.rd vchich docs not even appear a1 Iht^ cc,dL 11e
,cusott i.hc rttles do -ni ^l1xt.n^-Lli^h clte a4tlivtttes of a eunsuttanl Crttm tl7oce of a 1^7^,,1<rrs
hdt(111^^! PhC 11t1u'.S t9tl I10( CV`cln CUrtYiilJ?atC the Ci£1s`+ttlca(.Ull of 6tclH1Stlitf1711 to I>tiiltil \8i7h,
1 h`.1171i?t4lltt\ SUTrtUtlCilnL this kJue is a cLC<Lt1011 of ti1C CCili17n1oUtCS tol-n c'-0l1fUti1(jil.
uYutii^m thelt ":as , n uwti hY Palnnor swlf-ci,jsthc^l_inn R., a otm,nllant. ifllic ('imnnis,irm
Ninans cair.ll%Ae;l: "ui, 6he 1.ativ ttltd ii.:: paiorholelin». >,h:en no arnbig+lt e.xists Tht fncus trtu-aa
bE' ur; the n^^l nns of thc cntit, and not the ::ntitv' s'l:t-^larot,cd lahc 'u a consulrLUt.
1A4i^=n)sletih of ErrprAn. 4
ITdY1115ti1C11 )1C1.Pillhfcct (.0 rIC tGL' TI1c 71,11Vltii`°, ()Ckt COr13tt t<Ctt L111CICi Ify L111C5, d caiAtC
Ut" t^act' th;at the Cunan+.-.ssc
6ric.k,r,yo de
ant.n thc tirln convul(
iroP11G 6tV )', i'he terin "cor^sultant" is ot
Fo _C.; VJla fcr 1wt)OSe ): lhis pMliti n cf'^hC arUurnenL, it vaiH accept t'1 4t MerCiS an anib
Connic,a^on.
tnd bv In
E1-082
1Ptc ( otuminsmvt tavie«a tic acaivit^es oi`I'atlrsyr'rattcl tlcte;untnGCi hhtii ite .1L1iv.it,t, EIr-'
ctlcom77amcd ithtltlhucobe^t r.:onslalt¢tnf.
Specifacally. tl,c C^miln«,l^^lt t+^^t^4^ taat tlle re,pntc,cru's nCi^ttrdsILllit^^l tU ,i$SitiCiO^. G01111}1Jllltll''LS 441L^7 tlit .Stt?11 CCI'ti,IcaltiC^11
pr^c^s^. thc a3 tlrlvtinn ^7i" 4ru;i<'tttion ap171tcrai.tnzs, and the lthll^ o(_. dtiC,a^tt^ eaf coi^tlutnlru"s rtzxdin,, thetaholta „tt beh^tli rt1' clir^^t, c;
uggr4 atiosl pt-occr, m:ac c• encotnpa„zd At1xin it: rulc o1 .i icrnwt,ant
(,037inioci a:td C)rder, pa,<_,i^ 1 Ri
uallG^the i'omiui^,ttrn iac(tnmN^lwchtley'
Ptl6rnur dc^cYctpcll an RFP tetu, C%altuitul "hc E''ml7ost
di?u^Il zulth. ,i.t7clrmLicut aul,tpiiolatarr,in,f .uuC.tiliil,rafeil SL
CtW?1!Tlliltt1l'.5
lllLilli;tl:> 01173411'il)
pptCtlt{ia
;9U,:Cj I'^I'vS o
I'1.31 QAI17r:. JeAci, Itt iC'>'Ut?tiSC lEt t
lut uehalf o(' gl,tv^.t`ant4ntEil ^irUltcs P+Srelatecl to tlt e [asuanu oF RI-Y`;^ tuld
f rna<!e rcczlmmetldrtrian, to tfi,^ ^.-aric>tr,ehtUt,cntct(. tllpirtion ar>.tI t)rdel, page 1 S l,lterr ,I
C.atT7nliJElttrl fi)LlnC
h..it 1,a1111^rl l,ztlc.l tls?erwt Statof mtirlaiti^ 'e,i[I;
u'21n^1n7s,¢inn fciIISJ,^:,3t
cliertls thrc,tltrh ttto ^tqaltsticr
alecu urtv ,lalivercd, tO;,,utic
'irr po"ycr L'tf attol ncy ti7)' t17i pra x,sestrpplicrs, natural t>as clnt.tipail.lc^. tlnd
t.. t^^'an C01111)"nsflted h^ snn1-' ol iu;htlsad un the vt^litnta ofliv tin+:I
rJ Order, Pllge Y Q)
In cpit,^ of all ot the,e ,+Ctivitie^_ Iv1tic'it 1'tilit7er tttln5ti, t.o its actit`e ^articip^tiult. tLl^
^n^nt;t}s^l tn tuxJs that Pnlttrct acCitxe tt.Qra,lc as a cn;tlltaict. 73btt tbrrc iS <u,solu,c.1^^ I^o rtrlc.
110 >;.:1LLIL01't` pl'6%'1i1k',Il. 111,1 110et11G Ci".tt^1.11 4ct1^1
^crs Chpo:l itr; atuhmritv 6,1 titt
dehnt. :1 t rt7I r\^hich .lnws n(tt e, cn cvi5t in 11'Ie al?ttfiot-ttaie lavw<u^tcl tqPPlyin g it <<t chcicle ih
V\ llat tt7e l unimissECtn shrlulll h;t%C clenC iS tcvCt
Ii
tirlt= to
ll th ltn4tl}si . R:ttllcr Ihan tt inst)
0ritAh,!r ^rrtain eclions w^le the szc,lntt., of a cmi^ultaut. it ;Ilot,l,.l Ira',c ai.il}'It^tl
Vll .1it;ia' Ih ^C SElIT7^ 1Ct1u11S Col}^lttl.ltifl ^1111
S ^J' ( R\CA.
, tri:t I t >iti;
IjAl1.:J ti^ Il(ItSO t+^'cC t0 Clc u7ttlltle,`
the pr(n i>inl) 01
A-083
FhU Conntttssi+,n envd by Eitttiutg rh;3t ou'rangitlg:' as delt,ed b;, thc (W&atiati
c:ccCed tllc i^Vtil l11 ivivahrctuCCt]t ol a ed?2lsL7It4nL W'Fen 11,1t is 170 1 o IC['i,'.1-enC+r lyoiilt
UI1deC the 1c" I SY_tlutt:[;.
a. nVntittned the C'03r11nttiStOtt 'Ictund tlret
t
u.,pl<< of ( 121:5 oi C;tti'Ci,-^_ an entity rnttat be k^n?ztgud in ttcth°iti that e:xcved.s the Ict^Ll ct1'
inkolt^entenr of a "trscilmzt ` POpittkn and Clliler pai;e I$) "I tiis Spttcn. ta, ,ilalig 10ri1 Cl,c,
{lnelin^^ tlJt Pt^l^tler ^^a^;utin llic Llc crra[ed tlte consultaztt
11:5 13ut dut4 is ,tli",>Iutely iav? snitpexr[ in lvti t:)r in fact ti5r .I;e: ptrpt't=iiia, thad a
c(7nStt(PaiIk ct:titut?c he i
l h=: ::^ t iit
liil an
ke) itul
i'
it
)tl ,h^:: illii,[lii ,llai thc IlildS tlt.a dC't^J1n147Cti t-4."1_1CCI't..' IItL`.ld}tIS.^ 1S ^71^'C9lc'.,^ II7'IarL34 ^ll l^,? kJ(Iq^lll7[:S1CC:
^ei t t es. n Unettu, it is onl, tt: gicy1, i[1 dctem^.ne vslte?Itcr the e^;Jnitr in trlvu(t-Qcd in .anmttpt3o t{a
;,ru"Adu .'tictrica.l or nan.ie:d ga; sc*,rt icc. BuO tne C`otz mleSioat 4Cps a St^ . II tiit,ls tl:a€
arr11-ir:ittt? t7nd cntas(tlt.i tnu[ua?Iti t.xelu5l^^ aud tL<tt
e ticih tlt;it E, ti,^ f
I`'ttlraer is nrt;rek con,ttltirt;
8 COP1r1t^StoL1 u 7u^ tllat p.ifnt^I^ i5 t at ]d `iPrein^ 1P^ (?rob^i(ii, cunn)2i^7.^.'e :^c'rC^ci.S_
^ tt^ d7ri>ciclc ;ti^ 7tihtl_^urt f"ot ic iiotlinj; tl d a:tmn7ittg, taxust ^Xt.Led tlic I'^\ a1 of
im"rilr<nttnt ill a cu,!^,ullttnt ittc ('omtnksic)n ht: miis,ca a critical ,;tcp it^: ns nnalj:i^ nf thC
,ujtie:E1 iti,ur i11 thiS tatse. OtMC O,;titl tlit C'zei3musuvi¢ slulald revcr,.' ttA awnt, vK ktu n'1 t.i.dn
t)^^^41lnLllil?3 4i'lll?ll'^ dl'f(d111?ltl^ itllil C(111^1'llttil9 .iCC nLh,lflll4 cKCIt151 ^^.. 11 C`. Ptiln
Jctertniiu letlzu- Paltnt'[ 'tC[ii'D15 ia
!?PO7CI
"1g' 1!}t t'.I''c
ophoR: t1ut is
yiiyti 'Irtt:d
inttine krn' Utc triyvt,ion ohCi^l.ti qr CR.`v'W^.
o}' ftr4n Vvntlrer6
1 Iti ^^^`1nC11^51 1'-11d'Icdl hF^ thll l }ic 21Ct1011ti Ut !l cl tn,thltltlli fl a Jii^t'-tt`I.cC j?Otlll fi)T k'sh
"iiiul ll fn; swtm,t tu^del tl7v^ CeTtih^t!itttt St:^txtiles.
A-084
111^ Rn 1Lc Cc>nrnciN7iOtt'n deti,,on 19 chaC it I^4tnd n(n Onl)' tliart. ^tn cntii.e. tn ba
im<d I eo su i 1an,_=in,•,musLmcscc! itlc ickel vt
5nitiqt7 >f''.u•rarlong'.
cltnsuheVltt_ t>tn aku tPiLil f'laln>el-
i5 namclt :+, corsn{t:lnt.. ln do.aig su, it hao de tact<j classtliCd c4l'laln ut-tititic, et4 . t,ultilt'_,
ac.Cl;-ities ti.ti.thout l;rasis in. th., scatutes. A11tI Etec:ause it has decidt•d to use the tnTi "coWlCttltt•.
ts .l re Itronc.; noint 1('l ^%hai r<trhtitEateS an:m^yitt+ _ it has 014o de 1'ac:kt ^zetern'linet9 Cha[ the itlme
A.C.tilyias t7rC nC>t itt0iilueCl
tinc.h tirii.ltl<', iltclu.lnd ass
,tndlilr r^4ieainv cloct.ulian^
t
ge»,ernunent entities in becoming c4tfit.ied
i;lh'%i7r t'ePtl(111(r`S 6i13' 111C: I}ypCe59, and [lFcP'IR!^
d to he 9'ilcef «^itiz the Commission to ob aln re,rlikiGatiinn-
fe-ali3tc wda 1?oth .ucult>6cnt an<'1 }>^>Can4int stlpplier+> lm 1'cha;4' odcert.iticcl ^^IC in^^teninl
tgg1 ;tnsort M (.+br,inlnu in((li ttt:^tiarn, nnattz;rtg infoclltatinn, prit^ann^ rct)tac^r, ii> i•+>,>mafs,_
nC?,OpaUl1e ta]ll;l, ,tihf 110g0{litttllg cOlltlm; idpl1t"̂ r tAl mf4tC ilr wln{%llig t W:"4 and f)wS
on clri,)tLS; iIWN`idiY7^ Cu:3101ler snhj3qrr 1ti<"yznri.n.4 a1lt"ul
12l'ilil'IV and a7117ULif t'Ef'7(` t 11nD;9 mith. M0 t•fk!.11n7E55101,i,; :liu ""t)Pit
rcCi:nIS7G21t1 Oll :7C^^re<ritlnlti. AId of lius was JUw@ tll
i u^ltl. c,mpOliti>C en.irnnnlcnt t.t-hr.rn nt.naerous ccmf-lauics lil;e S3t
,:crtdiecl uuder the C criitiottluvn Stalttt^^^. v^tirrrt >trti again?t F'ainier t(; perRlrtrl th(isG servions li'Ir
.ntr>E rEltiti
1hc-c; is aiittltlk: ns> ha5t,^ in ltr%^ <) I>at cach and e\ an^ ,>nt. 1}( tness .retwut"
1i71ts intc 111c clltsl'lceio^1 p( : trrnst.iLtant fcspeCi.tllH sinn c contiultrru i, mlt C cCi n clcl:siltcatic.n
nnd^:r thc lam^1. and lurtl;er lo Iinc1 thut tnch ttucl CLc•rS oun of t:heA uctiotls .n na: comid.r.ral
n^l'tzn^in _ Icu the pn•visinn ol (•Rf `i ty. ( K\t1ti_
A-085
^z
A,s9i-n+rrcrzt of Lre•trr- itim2i be.t' 7
1 he (a?nrt;u.it!ai cn;:d by 7?nd,b_ U!^t aat.tiUtts tziken trv a eor scd(at;t 4n.1 ^ ^tic>n^ tlt:!, ar
cnnlpE'titNC sCrciccl El4'c° nlutUdllC alClua.1 c, tiv3th(1Gt 3nV sttPtX)Yt tinelrl th: C,eJrkitvatit3n $tztunh5.
r-tt54tcn 1'ou11 d th<tt tf7e
taanci[v &S e oousttttant and ^lr^t tt"xe tttt(cncc ttn the rcccrrcl in this catc: does !rnt suTptrr€ a
fitultng ttvtt t'etMteC, u.ai:rns co!tmrtuEc ttte pcrli,trxnancc of tt epntpcithvc ticrt^icc^ t(}pirthrn at°d
dt e. tta;fe 18) [3u in cl.iirtt So. the. ( wntisaian has zatade flte fec;td cleke.t'tnit3atarni that actions
tttt.^n l,,c n cansulrrttt atul actx^^w Chrtt ^3re U.ntirPetiihn. sc.\ tc < ace nn!hial[y rvchacive lo ?ae
stVC, ifthet^ wcL"^ Lctioll: td
c
f'ul} into
^ Palmer tt'ero acti<:tns p4tJcrnteil itt th^
u a37Cf ct}IDI7oCiti^c 501'\tCCs, it
M-elv k>:.u the r:otrt;kitif. lt>ph!tt . 13.!t the t.ntaunis;s;n;t has, iu;te:til. mnrle tlte
.CI1 dcd li.vttcl in thc xiboec scction r eqn .rlti.!;u-t that
yalt;Ci< t^ - tlC!'1 c:5 IAIl 1luvC3 hVtf7.
wh ::ate;2oricv
he t'^rima ^ 1Ilttlt in t1tr, ftust`tivtt is that tharr, is tro :,upprn'r in tlte 3awPai' it Ii ttl;.t^:, OI.c
tenu mtnlwtititv scteu;es.' Kidi lind5 its s[1Lvalie c1eR!,rtton ir, hnZlt thu 4tatutes and Ch+<
(.aturni;.'!w's uiae. tt i-tc.h!dcs auctint!s tt!ke!i Ly a Wilor mtd ac:tic!t;c tttkt:n to .urn!tgc fbr the
pr<s;;aun !f con3poi use Auric and nutttrctl.
to fhe te.!!a "cirnsullnnt" rchiz•k 3 t.lc`J[nifinlt ii
t C. c mnissisan's rttlCn. 'I`tt. callv tnade a hl<utket
tC'. !^ no acti(n tlaati could 7,oasthtti- i'all into the cat"crv taf boTlr a c,trrnl ti!.ti,t^^:
ntin !ng ncrivs. I b uD<.bu !his statait•cnt withtwt h.tvin;;,:i conc!:,.c :'lcti!iru4m o'C
_.COUq!G:;u 1 tSC(^nh;i7F tU t7i
.n3 cuidanic a; to wPaich l!ctic
CU'1}^)UtIIIFC; ^^t1TItCSS.
1 the Ctmuni,sivn Ftmher it >>ruvidvv thc' Eiutilic s+ith
ttrttSiclercd. cunsu4tu't^^ ticrvtccs and ssiiiclt nctlo!u .!rc
`f hct Conntu"'5k>u (iten c,rn;ttur:; dtia
Iht, rt 1cs_ ar7r in l:wt 9,htw word
A-®8CS
i u tn bez- 8
I I'he C'olmtlu_ion errcd br esclt
2`'in tllr:rr:
lzied particit5au„tt ln the teytiest I'o! ]tecl),O?el ("RFP') 1 rt)ec'SS ,tel 1 elxxl!'
s eUStrnP.rri.
Utn inL rhe hLaring ott this til: uot, Pdnat rtt[tntCted thttt it hstcl cven,,he t.nrticQtiou u1
ses_ litr. C.utllallLion k,um L that Ch,ese ^ati, ttlc^ u u5i nu crt ur,t^tiag
mure lhan cem
Ilc.uctui :l rhat:
tittn^ fro.m tltc ct,,Cirtiuo>1 (11, "ll;u
clicnts." iOpie:ion anrj Qrdet'. ttare- l(f)
clcvclal^id an R1'3' pl i+sue(1 RITs oltlrclialFtrt`itS ac rq^^atur+nltmncc! hra'potiats thil .,atuQ Eaach in reshun5i: ille dcr,.lt^th n^ Sllppliv ;rt Iiehtllft7f gOVei W xtmttil cutsties I,1^ uht tt^ I inti
or=n;; tLn,a rdnlct3 tu tt;e, i";stlaner; ar`Itf'l's; rtrAri c,tintatc 1saviry's,)aoCCn ittl tutd lnctdc rec.llaittt:nd3tdittas to Il7e vat'iou.s oontinunities thttt, ittepreml6cr':. ((7pmae^ enLt f)rdt=r, lrtlae. 1$)
^ctcrtlr t^s5_ tLr ( otumiasintr 1'cutir7 tiint these wr,ie ltttT t'he actittns ot o brnker, bu9 lti
o[ani, 1lecaur,c i'a(iYlel did iicYl make Otn.lil at dcct;ii>l7 t>n behall tlt dtte•. client.
I hare could lle im narl titt er cii;,cuption cC a hroker t1r,w Ih<tt atI . ucatetj hr 105nc•t it2d
.itz rc can I,^^ wlu=hing itiort: akln tu tll7on;.nng ihaai tuiE.in>v~ evcr} actiixz other tir:ui ln.ikirtg the filtnl
t,ii^n A'^^( cmi^^ 'iiil Nalln^[ Ir^^elul^r lltc prt'^ho,nl Ix^cess f^ut it, ^tit rd atlic3 issucd rht, It ^ I'>,
^^'nl.u;tied ihe prt,pn,i1^ and .utulyecl thc clw'a un ivEttilf af Lhe zlints. w;ti eu-etritEaQ made
,ecOto.ll^lciljtlr1o11s 10 thc cfitilt. (^h,;' ol'llc uwtion thrtt the Cliuz1 t iclol: in ihis hr hl"; c.ortrl,atitive
.1 1 % ir011ulVi7t itia5 nl lkii;i-, t'dsc tinal decttiirni hasccl mn i,'nin t:r .5 3tcotnnlcrldatiotn IC 1'rrhar,- did
7U atT211i.'_C' lpT the G'ctititUl ,4 13leSc utttlirElCLS oRC lS 1CIl to "V1liICr: mitCl tll ! drrFtllL'e I'i.lf ;It'L^
i:Olll.','aclS^I
A-®87
lbe C'pmNniainn er::x
Paimcrc cnirtpcnatoata " rttvt' wr,ts at,tttg as a tonsttlfart :,s t,plta
broker a iuattxt' "riah icas uvuisidermil sjgtEcat" hc Lt1c Cemokiht in I Is dlss-unung tTi
iiw, Cnmmn icut prca^ idcd vi?rc
en<tle4f 1ar its .!ctivilic, nt method is ;irtutrlltdi hcriiti"r.ttll:hc?ti;1
rat uf,Tirrt3r i1'urnhcr 9
trr aule0,ttatcl)^ cott5ir!ei tt,c sisuafrt^eo?.cc E7f ^.Iie murlr tt(
utah sis rcgatthtog, i1iz method in wtt.;h Patri
I
Iundmt7eIlt ii tssut:5 ui tlvs rax_ h acla,t^e^led ctl thai fultnL°r. "wI7ile uot u.patrtt to the sapplict:
romunicxs l";is Coml7^n^a I cEi^tnt; throttf,*.h the, staP171icr cni-ttr: ci', hrtscd rrn thtt
cotricit^ du.(n•ered" ( f)hiniart atrd Otr.{er, page 191 !"tut in the e,ncl tlta
ARtnti3'Si unt ahlQ te ca.r;tiluctt:'thnt
indieszmv t9i.tt fuKWr n-a5 r>^^^raiitx as a ]aro,ker and
(.>rdr:,
11tst, h is ion5ewtat tttiirgctttrous 1'vr t
CO
,rtrpertazetioaa ttluna ,
011SUliant " i0fliitll,9 a1'di
ission to >ti; , t that °fhe tn:,de irl
,tlonc" is the omtr c+.rit1cltc4 ;li.it et^tG Inec;<tate;i to ^t tlrat Pu}mt^ teas actim"
a hr{IkCr. lt IS LfUt i)itllk'r tOf ttR'. C(]ii]}Pi$stiti,tl t0 look at tl'1C C,Jf1lI7C11S Itf011 CN3lICilC.^! in II t tlCutttll
t\hrlr i^tu,rsa; all o1 tlir adtli(irtn: l oA^cmhtamingcvidcttce ur tiulpcart of 1 ntling th;i Ptttn'.mus
, trhrr rtcwit a? ^t hmhcr or orli ^^e ,titt) {tio^ iae. cnnihrtitik^t .er\iCr,ti.
\h r. th^ Cotrunissirrn", lin3s <iiseoncctr, ittsal} ^t:arninUd Pzlnacra cnrtlractuai
.mr ntcitt tairs a.nd Jamr mixicd tlr.tt ilru-\ «4rc eleaulv inti ic.^ti^c qPtt btol.errulntrr^ti,it,i
othinr t.ltalt a tieptirtnt tgNcmcut hctt+aeu l'.tlnt:.r auri NO-\( that Ptacle,nciu,l tviC1t1the:rc itierc rio sris°een'tents in i'•'Itieti Yo-ilmer ttiau[d hepaid up #-runt h, any ag?rcptttc7n elient in ackttruce of a stq7iltrutt'ae.t.1? i; .ppareni d^.tt tuIdea t-utl>al or ]Intltiircl t,ontt'ttcts hctaectt ('ttl.int:r and
it.s au icgatiuit ciicr,ts l'alrttcr \mouftl take v;eps to arry, Iitt st3pl,tlycorU iets in cX haneu: Or tees that tvould N, p<tid c^^ntit°t;ent q 1>on thc
st.trcc,::(nl dc:litca'p ot Ioc-tricitk or ^tas tt, ^etuil c"nszuno!-s. `I`hcdistitat;uislirngfux€rrrrorabrqiur'scontrnci ,itidTOs'ec4lo_ioouNuSirCr<alawonrhip, iti rl1art tlic i^iul,zr is 1, sud a broi«ra^^,, cornirtnt;iE,n_ oi cc that
A-088
12
is Cotltiltaent cnt thc aucceas'#'uL csatupleriun of a etr£ttr.tet Cor 11tc lirlrclrtsv
UI s£Sic ui i: °_OUiI oC SePV^Lce. CiJntin-?en.t OO.mlYJ11S21tiOL1 cdlLi7r5 tjlc tlilantarit
itacetttires and phas the Irrol.er a It tancial interest in tht e^nt}ierlou o1' 'tti'CliLscLCtil3ln. '3V- cOntt'Yist. a cOlltinlyRt L1171t N'RS pEliZ2 SP1CI1' 1QS ItS SeY\ iCQ
and umhert.ee muld bti ttuane.iQ tteu6ral tc r<uclSng tvhCthc.' the ,tlpph^cattll "et atarl rentl uciiel;ttea v.eane cul7"<plet_.xl- t'uttt£et''s crrrn{£e£rsatiott
";ttiio££tingent on theElcliveries uf electricity nr.,v.,a4untlet'succ.cstiftzlly
co£ntrletcd sut5ply coatracts.,, 1 I"}he firni slactulcl havc song^tt
uatiflcation as a tu4ail holaCr lrtl,Jter ct- ra rttail nsttt tl i,a.ti ht03 £...fC7issc'rttittg C>h-niun (,t f.-'tatu£n'r Cerntt:rlellw page ?, n.phas'I KIeCi,
inurr}ol ci.
llic COI'fllntiilU
olnrtte.ti)
si Ip itzn)rc the rrttt.ie of cc,t ue.ttta(ibn as dlr4ct GuA, rn.e ol'
tlre qtatur, ^CI',alnr:r as a 6rcii,er nttci not a ct3nsttl?aut, pal'faealail}' Mt'w tltere is <Lmp1e: cviJ.rrtec
of i)iiZi'C i^cifA91I^s 1!c Ifli"It1+9U h^ Riliili'.9' II'. I)71Y i14_'hlti" C(TI77pk'14U1f ei1V'tOI11nCtP.L.
Cl;.rrni' A^
T^h: C<trnanl,;ion tn'^ti hv (indln^,, ihtiat I'idnaer's ntam..rcu ; atlnria.>it?tt_; th.at it i:c a hruKct-.
Kl;ich arc conlainecl it. ias "cbsi:e, it^ tumllaany lcitcsltcad. and its ccr£i15cs'li^>n ^y^lalsCativn. ale
ntclcl^ ctlc£annstcutUal u6tlcnc4. as c;posoc1 to adntissiouo agait;st tt£tcr.an t,ilcl! 190 ditv-ct.
„<<raclu:iv;^ :alxl Etind£ctg c i^idenX< unntNi hitt Paltne" tme bmlcer status.
t,cltcral}v.a ><ttlv s acimtti5ic>n against its uvv'n int'enst is <tnc uf the rriast dananint I;iWcas
CVKICHC^ illat cftn hl 11TCSi'17tNC(. IIl i! la'^. s411t, ccrasiderk couclusi.vc evidenct o,an
ue be^atr,e <t ptu t^^', terstilatllm ^t^^€tim: its ov^^u t.£ts£zst is hcltet ecl tll hc i3tc ntu`~t a;.xtihle and
Linhi,;^cti
li t1te; c:asa chtre. arc nl.n:rrous occasiur;t tihera 1'alnner cdmi,te.cl to aictlng os a brakar nf
:aeCttrio uid nntur hv u, di13g it_.cIT out to £hc: prOl c .t, :,uch. fPte coml7;:
Ieuerltelt^l that ;va^ t,ud bp I'aint,^ r rlW u!_ drc rClc\ tant tknicliun,4 cluul,airuc, Htat it i; h
lts;?I( otn ro be rt natut=tl gr Irrol^er-^` l,l3udrevt f li.tl h:.x9t hit 2) 1'alme,r als.; pvmu€ud l.self lu
tEtc hul'l I^ as a n t'.Iral g..s hrt;i.c:t n, ics y^^eh^,itc^113uckcYe Tl l.tl I:sltiiblts t. 1 a. .rid hj
2f il7ztl!c. Palln<c s,lntittcd thal iL v\tts antatural sL-^,as hrt,l.sr in tts uvvn 010 c rtulraiv=;I
ah 711tRt110n thll \t .( sqhLowed lU Ole ( .Ottn7II.ltisltlil. (F3Ucl,CC`e. 1 rlUl 1".AIUh11 i) 111 CI11`' ('4.hC1'
A-089
hwsc uclnulem ;tiuti.l be cl:.pcr,itice evidence tiiat 1'aln'rel was. iudt:cd. a rmttr
broki'r.
I inut,'sit n places ttbsoltttc[y no v:ei 9'<r oi ti7ese c.o
;ac.t. lt' nnds t:re;c cr,cini
( Y7fni31
CtPttt"S1
q 1arIC1^ L}ldt 1:1 u
!hc I'C.fCI'Ct1cC5 itl"\IccS.
11inu rnorc than circnntstttntial c,dt"nce,. !ti }rtirticu^tn. thc
1C1 ti11C1 bG1:O$!tC f1til 10 c!Sumlkll the ti1h4111t:
IEy i t f:ailS ta esta1TIi51t that [Palmet.l xluall%
t17ga,Gr.{I in the ("?IIi7ViviJIl QFsC CACtI . (0pf1"GCtln iCID41 (I(Clt'd', p4lgC' 19. t77tP.(i'tal C7I.1Cdp115 (1lltfiCtl)
; lu ;tt?tTai.,_ u^.r agaitrq interva( is t'tirT e.i cunlSirrt3tiul iviclerre _ i1 is dincY rviClewc ;enii cqncltcakc
of tlic isstr; mucl shnld not snrzpl}' be c 1 rt,Dnsdae?.
Bitt invre ,3n;^oWta;tt'1c^ tirc p=irhttsc:o.f tttc C tatiliocao+t Statuie, reec to hro6t,ie iit:; ]rublie
vk-1!il tjhC .1ttii'r(ttlcc tlt..E c:i;l"It"laaics tatll ir, "13YaPtIt~_' in coID(>ciit,ivc (7rttctiCciR }7cvc bcr,u UcitillcCl
rr^ tltc szu ^.Zn an ;t}: t[xat t, hold'utg ioclf<xtll tu he a ttruliLri<t t9x sheH it i,, ut,t. ;
O1.ll111i'ICin(' 119-1'_ c"RF2C{' V21'upg 1r1at the t,.iltlllif7i{11 q ^iCEitEtte"i t1211 to ' 41.91'(j {3gi111St, At (I:C YCrt
^^^. l. Paliilcl is_^n,1ty trPmi,ic.tc9ing the {>ublie l7y hol.dittg iodt'qut to hc rz btt,I,ek o^lte,n itisus
Ilt1l ci'.ClilfoCl to CIO a,. 1'13wit aCt1r11tsh7pn a(Jili:. "'illl al) the other 8ctrb'r(fCti iiT1d `+JI't7CCS
pertm-rvd i,.kilnn°" nInl.e te>> an nt,cmhchmitr;? r i4c,t,rhir,st Pulr7tcr.
1si^=neaie-11i cal' 1'i;rror (^"unrbee J.1
1'hc C^<arntzu^ston cnuil 6R° itn<Inl,; drui PnIm;'t; 20 IQ rJpp1ictunn ror cettilical;on wwa
rnCTtil^ ant^iil7dror)ui IiltWC actioo5 cJ4 opOfJSCCl t0 a cc,i1-ectii'e useasnrE clc;^°necl ut cut its
I«sns p,t 1« Etulwe ni 'Ollo, tz L,m,anei bucom e..'rtiCied it1 ttic Ilust.
It - undt5lw er! t{11tt, i11 1010 .iftcr tttc Liiinw!of'thc (u plt3tltt rt tltis t4i5c. Pt3iire 1'1^al
,1NyICiiIIU'q' tu i?Cl.mIItc' i;cf'iltlCd 121 1?PJFidt U:Ytll1El1 gas and c12CtTtC 111UICc1' Sc ^.-lCiS Ullif tP.n
^^^cn• ol prucictinp,. ,.tch ,san ie^s WlilC horg !tnculuuca. I'lau C:umm+ssiou
nn _ I",i;din m lhan it titt^t Pctlr,tcr plov'tnuslc mt ttrcd in ragul I ulivi:"
A-090
14
irl thc ubs^ntx R^thm in the absence of cNidcnce to thc ctfntnr). tlll fiii nP titz
eotnllc;atii.m is as5uinc.d to be an iUtCenllon ol, a p:u;,tlcctivc lfusutea, ,tctiaity,
()1oi;t. ")21_'c 19) f ltli€ 2l`-^C'C)IY111]ISsNt7 has vid\4-Ct1. tl]IS e^ICIC]lGC :t'! 21 4L.CLtluit.
,r tnari9ing thcruount<,,in oi'cG 1tloice bn{iatc tt e3txY rnacrid lirtds ttlLit tlwte is "o ^, ider;e.c tc^ rhe.
contran
-i hi^s is laerltatps the mct;t (larma'r.
,ltr t3rocue,}intis tl lr PWnlcr Srn.igitt
^ h,r^i^laitlt ^ta:; lilecl !n tktis ^
ul , r', ii'es to it, t•u:7
d mitwd t3,at it ht;s pracirleal no lte"^ ol
t>iaia2inu .lrtt certitle.atiata. t5f COu.rs'c, this s Wticue it
t.rls proviciing a[illl htttxol?lc of hro(.e: opc scrvitcs to its c•ttmoinars (br t: Iitll
t7bt<li;^tiw eea'li[lent.iozs.
11ho (.Imunsroli ca'r+;`d by liutllng ohat 13ucGvt=c tiilJv'd rq >swr itt btirt7cn ol pt'tnli' that
hi1lTrJC'i1'^,.a 1(1 i;01111}a.'
o''all vf the eti^i<4ettcc pn'selltul a^iaizlst Pntmer dur
d cet'kiFCalton ttvrn ihe L.or71mtssirm aftcr the
f'alrter has eantlidh
,ltl3 Prtutlrnt; ii' tltc prtlvisttan t C1c[5 ut
(i^ plii1F C^a'tJlli:'t9Ctt7]}-
1'h, ('n=uttu,5iittt- in tts cc.^nrl'usintl. t'u^ur.tl tlt:t¢ Buckeye has the hnrdeo of ItraOf in thira
nsiHvr a:r: tllat Btr l tiye "11a5 t'aifed to intt t17tii, hrior tt, ei.l-tiPic:;t.io<] ('n
^;^t>tclni^^ i _'41(i Pttlrr,er on geC,l nt uelir'+titp a: a pre,vidmr oC ( R _.S ancj C IZ^.Citi witnrtiat
ttbtaininp ccrtilicatirn fitan tlac t:olnmi;sicui `(Cllaiuian at.c{ (7ader., paF^2 27) ' h^ t I^pr^truon4 in
t1nN ntattc lclatct. lu f'.11mW:' S ct la"muu,c vcrtlc.rs ;:iild its c.PTc,aS [o wlay< -or t
1-ti or t RWN lf [he C txn;lis,lo,t
ru%l>ion
tn; ,,;+lelt- P2trt[,CCI ctn tlhe,ihcr P€tltl e t.4a7 pautiJinl,
Rt ;ti ^u C IZ\fiL, thcn it 1r.ax t ie\\^cci tltc ecidellce the itlt:ort..l stanu.ard in 'rtinrl <!itd
<}7€`^llltl I^C:6` II1C CllCl,:ltil; Lo c.c;LCti11tRE 1^11^Ih.a 1181t11tr i1Ll:;ul1 in cRil'.(ldtti9lct >i7^1C.,;ir
„^Gd itlr thc {tl nm i6ic?u Elf C RI ^ or (':`NC;S.
A-091
15
t3ut fr411t a° e4idet7ttjr^st<indl,caint, tllc t+'ciz?ht of tl'ie 4:rclence aU^aiu,`;t 4'zil mr
s^^it^lnune tnld there ss no lega( b;tst; tor le Ummlissiun'S tinctin^ d7tu 13t'rckeye did rtot
meet it; hmcen u1 pn,of. J'13e (:rnrrn;;aun heatd tts'a clnr's tw(xrth of etlaowe " ilt:re I3uckq e
sui7t;drtct an d Pjhtter sicslittetl, [u rts lYtci'[cilta'.ann at iho UT' hsucrs>, itn ^aigntiull artd.
antllszs t,C ano%iwco srtcl ntal..g recunuuendtltietn ia cli^nt; Pillinc ,.ttlmit', tu t_ikhl^ e.'er,
n50r m.(.ine the l
u
naore cicar;.3efinitian ^^7` `m^rar^o^^th^^r^ 1'almcr's..l Pcn^i4 It^ €trtatt^e-i"urrhr,cr linnrr2tci5 rln(k.-ill of
tl2e•,e .iGllolh %\i'lti L3kCq ! iT 1118
b,,el; iu leslrorisv R) th" R1Ps: dealt Gt^it.h i;icunahrlt ^at7plte7^ r,)n E^eh.df`oi
:':)vn in tlte C'amrnti:sicx5's
it to Gn<l iiiau P.ilmt'r's t+icii
)linnstt!+t'tc9 C1t•de.a-. it sltenlsscn^e:n enLir
of thr annPH,iv: i aiocs rstkclr 1?}1'uIlncsr in ns eftdrta to
cuiitr,:icts. lt litlilt;, ,t,iwitg oih4r tltinig* tltftt f'alvlca's rtctit-NtCs
l:li t11e ('t>mwisslo ) cer'illcniiui' pi'tnY,^S_ tltt; 4tunplc'Lemt UI
1 11IT^' or tCl'ItS !)'.1 Itehal`s D: C.IC"1Lz. ^ rfjm101a and t.hda. hng
L
^:7tlrr S ]^<Nlc.\\Illk 2:11
cnt acusci,,,ti:?tz
at{ 1n c.<?tnn7tttnric^
rti)^it<itiun Li'o 1 thc,
131 It 1`urther inldv t] at "al+tes
« cc;zla:-1ed 0l"
rnmcnLal cuu!ics Li,
estiitiatau Saring> I^
1
d ;tgntnr ikc final ccutt'acr. IhGac coac +c no
iuie Gttvironnent of crrgy gia:t ltinn_ )vhich
r, )vi.th ira ifi
inimi n•ul cnnillti2.n;; r.faYu rc:latad to the t^;;uart; i+lR1I a_ ,nni
ntiul Aual :rtacle iccon'u7ier^eldiiotls tv the wttttim a^tnnni«ities di.)t it
rCprCSeHJQ , _ tOriitiou U rul (Mr. page 18) Ia fiitlallyCounci t}rat Pa3niLt' ° heIc1 r;^ei:c) ;intus
a11l0or huaer ol untornee Ior tht: pnrlluse nl )v,7rl:img wt h Cl<I6 I5 -^upplicn;.. jutui ., ^us
0):1'117fallle8. 1!lnd if311tiI!l15J10;1 C'C1R,Yl)P11iP.1...7 ' an(I -14`aS UY777^.1C17tiG1.i^Cl 11\' $(ICIc w_ its {.ileLli,
iltroucll he ;ulnptiei ronir<ECt, hatie<l on the vultnl)e 7(tfte gas and clet'i t)ty (Opilusn
A-092
It")
utld Order. page ! 9) Ifthis does not constitute arratrgisig it is illipossible to discern what exactly
does con
ionaliv. the Cotmnission makes reference to I''almer's argument that ut the past ten
years, neither the Commission, nor another contpetitot', nor a consumet' has ever sttbnlitted a
Complai3u cottcerning the actions of !'atmer - nor has anyone ever questioned its certification
staiets until notiv. Even if this vvas prtroen {which it zvas nt>t), Buckeye submits that the lack of
prictr cornplaints is completely irrelev.utt and ttktt the only televant inquiiy is vt^hether Palmer
was ertk;a&ed in cotnpetitive services. It is higl3ly improper for a trihanal such as the
Coniinissioji to hold against Birckeve thc fact Qiat no prior entity has questioned the legality of
i'aftncr's activiti.cs. "fitot is simply nct pr'obLitive evidenee.
AStiiguntcnt Uf Error Number 13
1iti. Comntissita effeti by finding that Bt,tckeye failed to n'teet its Fturdcn of prool;
especially where it is the Commissi<tti s rulings on the (itscovery issues and the trial subpocata
ihat e!'fectively preve.nted Buckeye fi•om p)-.se:nting all of the available evidence natci re ardeci
Palmcr's stoneu,t71Eit7p o#'the ctiscove.ry and trial process.
Final(p. assuming .argue,ndo that Buckeye has not tneC its burden of provin;,a that I'abner
rvas e,tga^ed in ealapetitive hich }3ttckeye det7ies), this k (argely hcco-utse tlie
Cctmmissiqn granted a sign.'rCrcant fi9otion to QuttsH in favor of Patmer on thc ene a>t''trial, wltich
signitictznilv hantpet(i }3uckcvc's abiiity to present cartsrin evidence at trial. In tight of this
erroneous deeision, it is intproper to hotd trgaiitst t3uciceye the fact that tlte) were not ahlc to
produce enortgh evicience in support o'f its position. T3ucke.pe was tota(ly thvti^arted by the
Commission itself frotn producing that cvidnnce.
Speciticatlt;, prior to trial. Eluckeyc requested the issuance of a trial subpoena upon Mark
Pryv. presidcnt and tmyority o" ncn' of fnl,ner. The Commission's AttonenAdtisor issurtl thc
A-093
17
u' p;ac»a. INI'rich in addil:ion tti Coln^r-Ilil - Air. 7 rve's :rtctrutanoe artitl t';;lirnqn^ at tri,rl re,lt,ired
ntm to I>ria'^ astur,thet dentunr?ratud ductitttr'Itut to UikL r4ttet iCu.:=auoiiiQ^y
iSSuetl the ,uhltoena Pzrlnet' f-tIcd u u7o•iot, to quash ar,;ut1g th.it 79ucl.c^e ^Aas reOttirint; vJr.
Lrinz ttith thin ^tczatittex^;5 not produced in
ara,rv tL,tzt an cttbri tu ex:tcstd the hlrtnd^ ctm21a1cCua cliseot
rtezt^, aitd thtri t7nv ttia's }tui tin;
y
eci hy ,min<_= th,rt ttte documenu^ reyuested in ti(t f rYc'', subPosta.
in tlte ,catnc of the ori=inzl i ist=ovt:r;raiurstn. knotvo tu cxixt, unti relr
1'a(mcr-had unntinucl t,l fail to prudukc the tlnc.m
w is i3ttcltieeG'; la, Ctpl)oytc
Buf. ltY t o9]1Cni,5i6n t5ot onfc deC
t't3t now holds that lamt apainy i3t=cl:cy.^ by stntiat^u t
c'S lt1e1i3F i71 1`alt73t'1: 5 CU11`LE5<t11}l t' EiCtt\.iLtt-5.
'Wclitienalk^. it rcitcto be
t'onri7izsi,tn ^ letotnrt I:',.unitc:tr, 1
cd itia
'uhpnen
dri; nCornnatrl»} and ptetiertt it to tht
ialt [ail t17c1e ti t isstl 5«ith the scope
01 the :(i,Il n lcft:7_ (i 11'11.1112 tlllillP sIsl1tIlCl ili#Yt; been i1nLCtu hllof tU L94Unl' tll^ Si,fi^lYtli.(}^7 dtlQ Itrli
aftUr NttlitleV Clcditted tv.lt it cil<I ttot want' to ]n'odt;l:e tly dlJCu111o)'.tt.
tin
.>, eil of th: .lhtrrc rev zon, l't.3cev4 ,reyuezam thut its appllctttion (ar rchoaritzr be
erturtccL ^^.sroull?ouF a11 Q tlte fot37t^aiaaiott hlu
it did not «^
'ss' uod io
l.ocunu;iu;.
:ekea^e hati not larndttccd ;u Iisicnt
the suit;7ucnn tt<t5 t^'rtteCi to blr. Prte bc thc
sed t>n thc lttbcl W f I'trPn er n:^ a
clttn,<uhtutl t; ]til+rl tltat I' i tiior Prs^ ilsLlT l3ti ;.he Cettlicalilni `^ttl
^tttt^sv ^» ti o\kn rulcs tlo n<7t <[i;cuti: ltilx.ls, it anSti discusses ;tculrns. I'h y ;tatc that if m
iinfilti m^ShCb tn c0gayc Ii: col
it nu^t he ecr:iil€d t
;di,
cttltcft sin ICC.` l,t -tram.te [ot the Itirr. niptt of l 1^tS ur ^^:f^y.
lzibetl <u' c!<tssiCicaUrut. 1he C'trmmisn^st^t hd^' .jl
tin uliloms Cdl L1hc'IS and l ttS>IS 1(Il`lIS 1'i.t11C
lamed
A-094
ric ons. t3uckcyc requests thed the Cotmnission reconsider this matter in accordance vrith the
law of the State an+! instead Irlous sutc,y oca Fultiier's acdons. Frutherrnore, thc Ccannnission
should order Fatmer to prodtrce aTl relevant doctiments so dutt the appropiate retnedy can be
tlshioned tor Yalnaex's ttutYterous tiiolations of iavN.
IslNlattliewYackshaw
Matthew Yackshaw (00) 9252)lolz'n S. Karninski (0076977)Day Ketterer (-td.Millentiium Centre, Suite 300200 Market Avenue Northulntrni, Ohio 44702Telcphane (330) 4,) 5-0173Fa.csimile (330) 455-2633L: mail: nU.tickst2taw cc9a ;kcttercrcom
,'lttorneys for ComplaiBuckeye I:r ergv Brokers, Inc.
<;C1't111Catt OY `^C3-tiCc
cCrjiY^(htit a t'tic cnLI LtC-Citrate tolr, of the Lotcgomg (utnplatitmnA tiahP iri)g
1a111ttrnndt1111 uC Ldrv iai Suplyuit. ui ri;tp'icat.iou lo k2.cau^^ta.um_= \ras srrvcd tqpon AIr.',A9. lltoe^trt;
^tF ' cl. and ty Stelthcti A1, I1ov atcL 3:Sc1 Vt,ra'vs. Sa<<r, Sug'xlout' xt P< <.0 1_I.P &? F
(b, Streo. P.O. 13ox 1+1(}3, ( ulwnbug. {7hu^ 23°.:15 I rx ctrittr( .titd awd n:ul t5, 'Vtttl thin I,t <.i.^.,
)ec r7t! er. 2011.
'i',)tt}te Yt cl:,hs:t}ttl e ", 1 <c}^slr.ttti\ (-'^0019252)
".RCI'LjOt 1
A-096
20
This foregoing document was electronically filed with the Public Utilities
Commission of Ohio Docketing Information System on
12/1/2011 4:28:55 PM
in
Case No(s). 10-0693-GE-CSS
Summary: Memorandum Complainant's Memorandum of Law in Support of Application forRehearing electronically filed by Mr. Matthew Yackshaw on behalf of Buckeye EnergyBrokers,Inc.
A-098
Attachment 2
consubstantial 437 contact patch
Sange r combine (words, pLrases, em ) syntectically. eon•sul•tar (kav suLtaq, n. I. a member ofe seculer (+ar. a. o( sfunere to take up, apendl +-tus ptp, sutfia1 . 6, to edmtt of grammatmal analysls or interpreta- dergy whe advisee a biahmp. 2. a specialiet who edvteea -ibn- -lox)
tinn. -^. >. the art of mnshvi°g. 8, s elhinq that ie fhe Aoman Curfa. p620-30; c L. equiv, to coasu((ere) to -Srn. 1. depletion. explaltation, uEiliaetionaea. 13925-76; ME canso-uen < L re 0 oxauLr +-mr ^roxl eonsumprtian goods'. Eee eurrsv mer gaoa:pot toRether. bufld, e9uiv. to omt- eox- + so-uere ue.to pile eon•sum•a•bl9 (kan sourme ball d)- L. able [1890-951np^ ar ge, cerh. ak,n to steenere te apread, srxewi aee ant tn be coesomed, as by eetmg, d6inking, r ust f'u) - nn-struer, n. ^abk g' ods . 2- beble to be a d up dTeate
ConsV mp tlon Ldx/, a tax, ea
aales tax, levied m
Conpcsub-4tan-tial (kon'sab alzn'sballr ndj. oC one rymsunble ¢aaur[¢ -. 3. Usually. eo
su Glea, 06^ sumer gooLa or servicea at thetime of sela [190a
ocessadd t a sa sahatan ce, e nee, or n.111. +µ350-1 s4ub00- fv d t orhi fna 1 1
ngthat Is produced to be vovavved e pr^ 1895-05; Coxemte . neon•sum . eonsam p/tlo n weed/. See grountlsel tree. (1920,MEallre s0sm ie1 quiv to c Se l -
- substaNtia4 e-0IVbtY, n aq Amer.]antlo) s -btla -['1 oIsm, n a- s E^staNtleblst, n - esue-stan'th coR4ume (kan esomr). ea^-a aing. -o.f. con•SUmp•tive (kan aumprtiv), ndJ. 1. t°ndivg oal'Ity, n - on sub-atan/Nal-ly, ad,: 1. to deetroy u enyend by n m woo upu
m2, eet or nme; aeetructive', w Eeful. 2. pertalning to c
ooC •Sub•sfan•tl•ate (kon'aab stanzahe -t'L u., -a4ed drink np: devour. S. to deetrog^ aa by decompovtion or umption by uae. S. PnlhoL . pertalnivgto or f th^a ine. -uL 1 . o profeaa N. dartrine ofmmaubateutl- huming'. FRz om,euened (he fo.ear 0. tn apend (money, netare or eonsumptlo b. diepo d to or af(eeted wltl
eGOn 2. to become umted iv o o mmn m uFstevice or
time, c ) x•esteIDlly. 5, ta ebsorb; grosa: ¢on naed onsum pttan. -n. 4.n.OLder Use. e person who auf(eS'.netuze. - L 3, tn nl[e in 5aubstenca with c °sfty'. -i. 8. to undergo destructloel aw Romtebere sis. [13'I6-1425; ME: llmivatvg morbvmture. 4. tn regard no so us^ned o [1590-160Q < NL vv _v. 7. t° use or uae up consumer gooda [13W-3400; humars < ML ro cmptiuus wastefol, daatru°tive: a
s,ebsto t mua (ptp, of ceneubslnnlifirel, e^qui•'. to ¢°n- ME ( a MF c sa ner) L eena4m¢r¢, eqalv Ee en- auMVarox, -rye) - en•sump/tlvatly, ndu -con- batonti(a) e =
xga -') -+ s e Eo Eake op (perh. a n^ au6mr- mp'Uvaness, n
carrsub•stamtl•a41onr (kov' ab e4n'. he glshanl, ^s°bs-la) aquiv. to eubs-, vac n[auh^ suo- + ConG, Continente.l.The ) , tl docMne that the aubsGnce of the bado^ ^d sm e to 1zke, b°9))
.. .^F Z. contenta 9. contibent 4. conbl d f Gh t A A t d wtth U rebuturris f Ljte 9yn 1 exhe t deplete 9 qnownhols, d'seipat eont., 1, canteinly 4 e t ntal. 5 contlnue 6, co otivued 7 cont B mnbr d d whis of th E I e. I I690.te0U NL ron CanStIT-Cddy fkan edS'med 1) d, a i I
sub t t I' -(. f b tarmnl- ) q. to tremelY: o edly prafow.d wish, [1]00-10' b u ed ]deC 11taaL d0 m tmL 11 On pr free tptlocon-w ns
x- + ruuere)subetamfoton. +n xs s rlvox] an sur.ten + mx^taum con•taet(konrtakE), n lsthe act or state of touching
Con•sue•l8 (kon m6 la; Ir.. Spy kon ewe/le). n e fe- con•sum•er (kan Zrmar), n. 1. a person or thing a nauching or meeting. es ePLwe things or people 2. irtmal Inven name: fmm n Lnfin ortl meuninF'onsola- thet c°nsvme 2 ErOn e paraon r o gmuaeti0n thet mdiate pr°ximi4y or oci Wov 3. an ecquaintanecticn e" u e o consmodity or servlre. 3 Emt. a m8 ' colleegue, or relatlve thmugh wham s person can gair
Con•sue•tude (kcnzswi tEtid', tvSad'I n cstom, I l y an ea mal, thao feeds on plavts or other e' ue1s. ess to i formation fevars, Influeutiel people, and theeep. haveno lagal Ibrc (1960.1900, ME c L c [13]5-1426 for he ME aadarer;' 1526-36 fer Fke. 4 Etret sauncbbn of eleadc mvduomrs, nsvnlly
16d5, equf . to on- oe -+ s-- (sFor't s fsu- ie cuvent sensea; ME; rsee coxav ,- n'] -can-semrer metal, that coetS ls turtent (Imv, ofken c°mpletin or -to become ccuatomed, akin to vnus one a owN + etSdJ ahlp'' n^ nor apllry,• w i4 5. Geal. the 1[ rwe, nlly aos] consuu3 er ad/vocate, cousumerist. (def 1)- Plan a I' e, Letween strera that differ in IlagLhology or
Con•SU9•ta•di•na1-y (kon'aml t6d'n ec'e -ty66i, consumser ered/It, craait extended by a retail a5oce,mleued Me eonPe'so5oc ol la c°ndifYaneCu whmn Iwo ordx customery or lrediponaL 113"/F192a ]ate ME I bevk, Lnavrz compavy, a' other lender, chielly for nhe
consnAf¢dtn6riue-, AUiv t° ce s-l-udin^ (s, a( con purchesa o( von5mer gaode. [1925-90] 'tto inchd^ otlxr
idnals or coups ere pc ced,n commumcelianL.L I"udal u ¢ /er goods', Ecna . gaoaa that are r eady for a ieht e a
eaoea
. Cf etegoric ontect, prlmary coc nvj conauT ntlary co act, rymyathelln no4tact 8.
con•sVl (konUSall,E 1 nen aofficial appolnted by tne c u paon in eatrefactien. of human we fq es dothi°g Soe contaet lena. -ul. S. W put or bring Into contav0.g ^vernment nf ane c nntry t° laak sRer ifs mmmercial ^nfooQ e d ea not utllieed !n eny furtber praducrlon 10. te ¢ommunlcee.t xitF: We'II eantaof yox Iry rnni( arterexLS and the wellare of ife d4zene iu another couo- (rontraeteJ withcnnr[e! gands). Alap callad eonsumptlvn hlephon¢. -t, i 11. to nter InEo or be m wntasttr 2. th th 1 f gi t fLh ' t gooda. 088!T901 dj 32 m nlvingorp od aby F gorprnzimmo - p bl . 3 . F H' t. f the [hr p e CUNSUm•eY•]4n1 (k . effolook ). 1. d -t -. onfact ollergy ]1620 30- L cont t a touchingour
g t t f[h F t 12 61' d'& EF pd enn for h p ti f the t ou - t° e tnc % enl .! «ngere to179918a1 i1360 1400 41
E L' t a t1 11 tak t seleas i fodo or dangam° p dustr mial dmg nd t ch (ro oraN + to e vomb f r o(nlonqme Lobo n dert 01 con J¢re to coras v, but u^g end vte- v Eoucb) a auffix ( r m̂°n; cf + ^^atxlIetimrehi5 fbothwrdsisuncle.ar] - eo su-lar, vj. e axpertising unfair su ctn^i oc 2 the ennceVt thet en
e- -comtactual,
ano'ng af g vgeo°ads rs od ante Ikon fek'chao I, o j- sub M1ip' r c o as to . odu. a) tl_ -cpmtecrtu-
-Uszae. 9ee council. the e on y. 3. t^epfncL ar p tke. of an reasing al•lyptlo o(gaod°:nedficojAmermnneoneucv¢risne -Usage. Many v he in EnNlisl. Fnve derlrad fromeoo/sular e/gent, e c sular o(ficer cf Lbe luwest 1194045, Arner: mNSame.x +-4m1 nouns. One can he°d en erga za[inv m[ee tne mark;en alaEiened at b eter tbe breed or bre,d the cutleE Heocece q W h(Eeenre v no Fnao d Iloar ,
Saervicv et^tevestablianed eeon
onszu
umm-e es mar c IIy 1eL lees4 Ehere Is o histotlcal ustificat oo fo^r upie heafull ¢ ar r•i4ttl [
(kan o^ stJ n 1. Alrso celleJ a
p who (s dedicated to Vra nc freq U> I d cinoween ( xe r med nCo Su Iate (ironies 1 U . 3 the p,manges f! - IIy t C g d p g tl. IC re aed rlahfs of eo F . s acc PI a b I 2 the p t k L1 ty '. d 1. 2x, f P t' g t S iptere fy
amenn,P 1 TI mn agvng'or ! f 1 3. (% p) g •, [Ig °.r-lo - d-1 , d M p p ny. Eeepte M1eNom
by 1 France C 1999 to 1804 195(L ) 1^ bw C t't d p b bly 1'g ly baceusenienc ' S con sumeY•iza (k n so zma '), _ 1 d. I Po ' th d veto u I1900 , ML L naWn i eqvi.. L. canau] cox u, . I meke da or a - zvapa to ea- s m oo pmduct] fsbla or availeblr. for erees thn , me idea tbis use of aovrncl hes beaomests nre I o u ptlorv to co ompmncs bv rnuhing tanderd in ell typee af speeoM1 end wrlting. Coxrne'r es a
oen/sulate gen/eral, pl. c uletes gen8rel. the tAem oneopec 2. to unconrage or foster the wideapread n m ning "v peSaon througL wbom one can gain es-afGee i aatablishmant of a consu generaL [3680-65] ns mmUOn ef (goode or e rupductl - Ala° eauTBr, s [o info meti anJ tha 1'ke' is aleo tanderd DiY
sul gen/eral, pt en
sula sen r al a consular msu rdae4 [cu suvnrz +-ae) -can s er i . ot the embneey aaya thnt J,e coup hos been sur-^s a persooawFe la staGoued e a x ^- r.^. `¢l hasL enk, a ation, n ayuLo(Ac ' ofLFe hg
ab e place ofmnsiJereble comm rci°I impurt°nce or au consnm/er pClee/ In/dez, xn index of the chaesme con-tde•tant (kav Lak'tant), n Med. a sabstencepervlses other m suls [3145-55J 'n th cost of gooda evd g ea to a typicel cOnsu r thet ight induce an aller
^y by c ing tn oontact
with
COn•sWt ;,. kao sult'; n konraul4 kan vu1t11 u.a I. w based on tbe ts oC the me e ods and s r fces at e the skil oS e mucn a me m rana _[corvrncr + rvr ].ek atlvle information hom; e k guldanee Rom; b e p rod. Abb¢: CPI Alsn call d cast-af-Ilving indea. Cap/taCt bVnaryuAn binap, aystem it which
CmosWt t'oar Ivtny.. 'benee a [1645-60] the of 9- eurromding each etar e ratsnfng ma n,,,ef. z. to anvanpea r ^' _in coor¢fn' mg fm formatiom C'o^uu(f yon, dictionarv (or u.e Consum/er Prod/uct Safe/ty Commis/sion, tacc^tere of 0e uord ie to havakingarlensr IR.pObg^ to 9S2s ha tt av tvdependenf regulamry genp, creaLed in ceNtaeY Cement/, syntheGc edheelve that is applied'n F p prooe ts tl bl ga t ruck ol itdt ek,
f 5jury fram seperetely t tl f s to beloined a d is ellcwed01 t ' 5 t .d d is- conaumer proau le. A6^.: PSC with [h f tl en being brougf L into catitia ( t , 1 t I. Ilv f 1. b' )^ H d('9 neaettonme
Ited (Ih hia dor 5 to give p Css^anel °rex CorlsVm/er et Ike/ A boyeat[ of a poodacl F> eon a9on veed -- T
apert xdrim: serve as consWtanL - r ). e ca sultation a°mere orten n pmteat mer e ise nts price Cmn/taet dermati/tis, Paih.a( io0ammetion ol' nb¢6. Ardmm i+e et meetinp, eep. o e for eeditloua pur- cOTSUtn-Ing (kan aW'min6) radL' atmnqlY and ur- skln cauaed bY em allergs raaction to motact wifn sn amPoses. []525-35^(< MF' cutulm: ) c L consultere to de- +gently feif . o ,ing need m be auaessfuL (cuxsuwe maL vegeteble, ar cnemmal aubateneeliberata, cansalt, freq. o! c°nsWere lo couault, teke coun- c'] -on aumzing-lY, adu -c. amsumllne- eon•teCt-ee (koNtak t€/), n 1. a pereon ar fhinF theLaer f ness n.) rm - caetrd. 2 p n h 1' e arrc'rinimi
Sy 1 C pl't Ik g' 't coIF9VT•rnate f, k t dy kin. su 't municated wilh hern o t L d by E r vingNm b] 'U d. p' E doubt, koutea mlt) u t tl tl p_ 1 , Ison d_ k P p[ bIY qf I f d P er- r og eo a tate fp f 4; C gal 2dE pl te ( t CCOR2Cf fly Ing ' NL P I' g' wllch visu,d
refgement agr . t th 1 k, by pl dg or the erenoe is nade Lo the bor ¢o d -[landmm'ks 1B95-
frrr.d. g to h g views . T6 P. 6_y g offs IIe ^t Th 3. t p y t d't deu! 40Mur] I
pl te (fh Of aeation °[ mvecon sVlt an ey lan 1 ) IT, p! I 1 the g ) b LF f t maxibil sexual t - ^ n enannnrtaet Inhlbl/ttop 13io( the cas
state of ^-.neing a sult tth P [ f . r p Ce t- suo remeh skilled sueecb n co [ 4r°mels end dlvfelon m ralls thaE toucF each oL[ ecl lls L 4 PI te oI ' I g t g ty 2 f e ( Ih 1' _ 5 6 g f pe h ghast °r 1960 66
f m tl 1 p -d . ilt g d' 3. I . d gr h f t h IL c con/taet lens/, one 0'eult [ (d C_ 1. 21 . 1 '] f .[ g p [1400-S01 Le ME ( d) < L that are held In place over tl p f y, 11vot hroue lonsiom
Con aUlt 2nt (k 1 tntl 1 p 1 gi fection), equpLp f r[ pl t, bng to and varre<t viaion Jefecte i° ... picaoush. Cf h a lenz,v Ioculer lens, ..ort lens (ISHf901prof iunal or ert d^ e nsrlfm ( o b s p ' t^°)su + s ntra ithods 2 e pe v.'hoc sults som en a or -orn^) c° su mum^ma-mry m(kanlY.odu s;om;m a'tlv atne eunRact Inetamor/phlsm, G¢ol locellzad mete
tl ing18eo P8Q (< F) e L con°ultnnt Rofce^me is conr ^ma'tor LO co, anCOgma ror
ta
'S, / orphism ' buItlng from the l ea[ of at 'gneous in[rus, p p- of ullare)- Eee aorvsoLr. nrvr7 5ynsumL rompl te p°rfect f h ompl- h lon. 11895^01
Con 5 IL aet Sh p (kan svVtn[vF'p'), n. [he etate or nch eve. -qnt. 4 tmperfect, unGnrahed oNtaet rnme', naval mne desined tc esplode cofflce of bamg e coosulLanp wnsultancy. IvoxsoSV.vr eon•sum•rata•t[on (kon'9a 'r haetl, n 1. ehe o°rset with the hull of e ahtp Cf a... stie mine, mag---mr) . ac
em g etof netic mine. [1680Tp51
Con-SVbta•Lion (kon'eal talshaN. n 1. the act of ^d; pting:
er.`ectiocampla,etian
fulfpl 2mentth 11 G
35ate -14of
(10;b
ME mn- con•taCtor (kon^tak 1- kan takrtarl, n. Elect.e I g f 2 ( R f d I b - m^aciaun (- MF) a L¢onsum t- (-, ( con lor- h IIY operated swit°h f h aspestublssl.Onq
d^se 3 f g of ultwenimw- t mnlfb) Bee can ] d rz PC ^ ] t' p _ 11905-10 (^-^^^[ p[ t' ,1 f l 4 E g_ L. conSVm/maLO y beh / L h 1 b.h ' + 1e-riva t F e ' 1 C I f aettern Inat o . .[ tle 1' P u b t f pa/per, 1. Ph 't dtemp I 5 A f I. I LL Y 1540. p' . I P ft fape ocouevllot+i (e af au 1 6) q to c sullatl es) ^meves tbe seC f k I sPec fd the .[ g lu F a 0-1-1 P t trs m d. 2 dh. i Irxcked
(Ptp. o! mnsultorg aea ov..uSr - c') + -iw" -tox] captared pre by a hungry predator ld snnFUasbed Paper or p p I'k product d to Ine ahehes, tlemrAre
eo -sul•[a•tive Ilcen suV ta tiv, konrsel tv'ti+), Vj- ^ram nppa uLLVO bel mumrl.[190Q10) nrt ces, r;te
or perlainin u m1[ consulutoni ) 1edvisoreyu A [lao cm^s bt oaf om•sump•tion (kan sump'shan), n. 3, the act Of mrv oon t aet pfomateh/V the a of c°ntact behveen a Nretor on gs b 'e, decay, or destmcticn 2. the emount ar otive ehide and the road surface
Y k [orVe I t 1 [ t IY I dl 9SE d he hgl , p fg L 3. Es )
, ni n able p I 'th, gq I(
con•suli Ing Ik ul 4^) dj. 1. pl d bl _ I g_ 6 P hdi d Ola. [Ih t Ig . 1 s°Igrh -•dv 1. lip".111v Iv d- p p fe 1 d', t I p 11' 't 1 . b progre lve x tm ftl b d N' h 6 IuW' I: Fthos p 1 nhe pf . If I-"
MEgscon g 113 0 140(1, I• 11 - I ^ ^ 1O
2. ol p[ Fg 1 A C . nrdlst g P h1 t ePm'° 1MF] L pl ( f I d ^ sn x p . f 1[ 1 I I n rl.
P- P' 8 [ q t Pll 1 Y11.6 L . dl (kSYd IL acdrtan. . uhinP mam 11990 1800: wlrsata + o°I 1 tp f.vm to 0.oxsimc L cn cay mp b n fho /a1.5 111, Cull kn. n a tl fmnt covm
Uompetitlve Retail tlectric Provider Regulated Company List
PUCOOhio.Gov
State Aeencies Online Services
selected industry: Competitive Retail Electric Search
ProviderI t:
Broker / Aggregator5LINX ENTERPRISES INC
275 Kenneth Dr
Rochester, NY 14623
Acclaim Energy, Ltd.
2 Riverway
Ste 800Houston, TX 77056
adl High Voltage, Inc.
629 Deerwood Ln
Keller, TX 76248
ADVEN RESOURCES LLC
13518 Tradewinds Dr
Strongsville, OH 44136
AEP Retail Energy
325 Jolm H McConnell Blvd
Suite 225
Columbus, OH 43215
Affiliated Power Purchasers International, LLC
224 Phillip Morris Drive
Suite 402
Salisbury, MD 21804
ALTERNATIVE UTILITY SERVICES INC
750 Veterans Pkwy
Ste 104Lake Geneva, WI 53147
Amerex Brokers LLC
I Sugar Creek Center Blvd
Suite 700
Sugar Land, TX 77478
AMERICA APPROVED COMMERCIAL LLC
http://www.puco. ohio.gov/apps/RegulatedCompanyList/index.cfm?I ID=70
Page 1 ot 41
0
A-100
7/19/2012
Competitive Retail Electric Provider Regulated Company List
13451 McGregor Blvd
Unit 29
Ft Myers, FL 33919
AMERICAN ENERGY CONSULTING LLC
1233 Weybridge Rd
Columbus, OH 43220
Arc Energy Inc
2600 Oakstone Dr
Columbus, Ohio 43231
Aspen Energy Corporation
9550 Dublin Rd
Suite C
Powell, OH 43065
ASSET ENERGY LLC
6923 Oleander Ct
Liberty Twp, OH 45044
Atlas Scinergy, Inc.
829 Sherman Avenue
Evanston, IL 60201
AVALON ENERGY SERVICES LLC
5507 Lambeth Rd
Bethesda, MD 20184
AVION ENERGY GROUP LLC
1475 Buford Dr
Suite 403-186
Lawrenceville, GA 30043
BANC CERTIFIED MERCHANT SERVICES LLC
5006 Cemetery Rd
Hilliard, OH 43026
BEST ENERGY LLC
233 S Wacker Dr
84th Fluor
Chicago, IL 60606
Better Cost Control, LLC
2274 Washington St
Newton, MA 02462
BidURenergy, Inc.
4455 Genesee St
Bldg 6
Buffalo, NY 14225
BLACK HAWK RESOURCES LIMITED
http://www. puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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2000 Aubum Dr
Suite 200
Beachwood, OH 44122
BLUE & SILVER ENERGY CONSULTING LLC
dba: PRO-STAR ENERGY SERVICES
1021 Main St
Suite 1575
Houston, TX 77002
Blue Pilot Energy, LLC
250 Pilot Rd
Suite 300Las Vegas, NV 89119
BLUESTAR ENERGY SERVICES INC
dba: BLUESTAR ENERGY SOLUTIONS
363 W Erie St
Suite 700
Chicago, IL 60654
Bmark Energy, Inc.
791 Price St
#177Pismo Beach, CA 93449
Border Energy Electric Services, Inc.
9787 Fairway Dr
Powell, OH 43065
Border Energy, Inc.
9787 Fairway Dr
Powell, OH 43065
BRAKEY ENERGY RETAIL LLC
3309 Glencaim Rd
Shaker Hts, OH 44122
Buckeye Energy Brokers, Inc.
8870 Darrow Road
# F 106Twinsburg, OH 44087
CALVERTON CONSULTING LLC
222 Euclid Ave
Suite 702
Cleveland, OH 44114
CAPITAL ENERGY SERVICES
dba: CAPITAL ENERGY INC
125 Maiden Ln
Suite 3C
New York, NY 10038
http://vuww.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?IID=70
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CLARITY ENERGY CONSULTING LLC4101 W Green Oaks Blvd
Suite 305 PMB 268
Arlington, TX 76016
Clear Energy Solutions, LLC
31953 Carneros Avenue
Lewes, DE 19958
COLEMAN HINES INC
20830 N Tatum Blvd
Ste 330
Phoenix, AZ 85050
Commerce Energy Inc.
dba: Just Energy
6345 Dixie Rd
Suite 200
Mississauga, ON L5T 2E6
COMMONWEALTH ENERGY LTD
650 Clinton Ln
Cleveland, OH 44143
COMPERIO ENERGY LLC
dba: CLEARCHOICE ENERGY
1500 Oxford Dr
Suite 210Bethel Park, PA 15102
CONNECT ONE ENERGY INC
6225 Madison Rd
Cincinnati, OH 45227
Constellation Energy Projects & Services Group, Inc.
550 W Washington Blvd
Suite 300
Chicago,IL 60661
Constellation NewEnergy, Inc.550 W Washington Blvd
Suite 300
Chicago, IL 60661
CONSUMER ENERGY SOLUTIONS INC
1255 Cleveland St
Suite 400Clearwater, FL 33755
Cose Group Services, Inc.
1240 Huron Rd E
Ste 200Cleveland, OH 44115-1722
http://www. puco.ohio.gov/apps/RegulatedCom panyList/index.cfm?I I D=70
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DEFINITIVE ENERGY GROUP INC
990 Pinecrest Dr
Sugar Grove, IL 60554
DEMAND RESPONSE PARTNERS INC
360 Delaware Ave
Suite 406
Buffalo, NY 14202
Direct Energy Business, LLC
Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Direct Energy Services, LLC
12 Greenway Plaza
Suite 600
Houston, TX 77046
DOMINION RETAIL INCdba: DOMINION ENERGY SOLUTIONS
120 'rredegar Street
Richmond, VA 23219
DPL Energy Resources, Inc.1065 Woodman DrDayton, OH 45432
DYNAMIC ENERGY LLC
8251 Arbor Square Dr
#122Mason, OH 45040
E Source Companies LLC
1965 N 57th Court
Boulder, CO 80301-2826
Eagle Energy, LLC
4465 Bridgetown Road Suite 1
Cincinnati, OH 45211-4439
Early Bird Power, LLC
I Adams St
Milton, MA 02186
ECOVA, INC
1620 S Frontage Rd
Suite 200
Hastings, MN 55033
EMEX POWER LLC
2825 Wilcrest Dr
Suite 656
Houston, TX 77042
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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Emuna Energy, LLC
1350 W 3rd St
Cleveland, OH 44113
Energy Alliances, Inc.
8469 Blue Ash Road
Cincinnati, OH 45236
ENERGY AUCTION EXCHANGE LLC
3557 W 9800 South
Suite 250South Jordan, UT 84095
ENERGY CHOICE RISK MANAGEMENT LLC
312 Plum Street
Suite 875
Cincinnati, OH 45202
ENERGY CONSULTANTS LLC
209 Plymouth Ave
W Berlin, NJ 08091
Energy Edge Consulting, LLC
1183 Brittmoore Rd
Suite 300
Houston, TX 77043
ENERGY ENABLEMENT LLC
3000 Village Run Rd
Unit 103Wexford, PA 15090
Energy Management Resources of Missouri, Inc.
1536 NE 96th Street
Liberty, MO 64068
ENERGY PARADIGM LLC
1606 Fein Dr
Mansfield, TX 76063
ENERGY TRUST LLC
dba: ET ENERGY LLC
PO Box 29914
Baltimore, MD 21230
Enernoc, Inc.
101 FederalSt
Ste 1100
Boston, MA 02110
FEHR ENERGY SOLUTIONS LLC
11435 Woodiebrook Rd
Chardon, OH 44024
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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FOREFRONT ENERGY GROUP LLC
6936 Elm Creek Ct
Liberty Twp, OH 45044
GLOBAL ENERGY MARKET SERVICES LLC
2790 Mosside Blvd
Ste 225Monroeville, PA 15146
GLOBAL ENERGY SERVICES LLC
7697 Innovation Way
Ste 200
Mason, OH 45040
Good Energy Consulting Services, LP
dba: GOOD ENERGY LP
232 Madison Ave
Ste 405
New York, NY 10016
H.P. Technologies, Inc.
33648 St Francis Drive
Avon, OH 44011
HB Hayes & Associates, LLC
dba: Altemative Energy Source
8225 Famsworth Road
Suite A-10
Waterville, OH 43566
HEALTHTRUST PURCHASING GROUP LP
155 Franklin Rd
Suite 400
Brentwood, TN 37027
HOSPITAL ENERGY SERVICES LLC
110 Riverview Dr
Guilford, CT 06437
INCITE ENERGY LLC
20 E Greenway Plaza
Ste 400Houston, TX 77046
Independent Energy Consultants, Inc.
215 W Garfield Rd
Suite 210Aurora, OH 44202
Industrial Energy Users-Ohio
c/o McNees Wallace & Nurick LLC
Fifth Third Center, 21 E State Street, 17th Floor
Columbus, OH 43215
http://www.puco.ohio.gov/apps/RegulatedCom panyList/index.cfm?I I D=70
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INSOURCE POWER INC
376 Boylston St
Suite 203
Boston, MA 02116
Integrity Energy, LTD.
5711 Grant Ave
Cleveland, OH 44105
Integrys Energy Services, Inc.
1716 Lawrence Drive
De Pere, WI 54115
Intelligen Resources LP
2100 W 7th St
Fort Worth, TX 76107
INTERNATIONAL MARKETING BUSINESS GROUP LTD
5600 Monroe St
Suite 203A
Sylvania, OH 43560
Interstate Gas Supply, Inc.
dba: IGS Energy
6100 Emerald Parkway
Dublin, OH 43016
J. Andrew Associates, Inc.
dba: Seven-Utility Management Consulting, LLC
19840 Cypress Church Rd
Cypress, TX 77433
KEVIN J COBB & ASSOCIATES INC
dba: QUEST ENERGY SOLUTIONS
203 Southbridge St
Auburn, MA 01501
KEYTEX ENERGY SOLUTIONS LLC
200 Brush Run Rd
Suite CGreensburg, PA 15601
LAKE POINT ENERGY LLC
5272 Otten Rd
North Ridgeville, OH 44039
LIVE ENERGY INC
1124 Glade Rd
#140Colleyville, TX 76034
LYKINS OIL COMPANY
5163 Wolfpen Pleasant Hill Road
Milford, OH 45150
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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Competitive Retail Electric Provider Regulated Company List
MANERI-AGRAZ LLC
1620 W Sam Houston Pkwy N
Houston, TX 77043
MC SQUARED ENERGY SERVICES LLC
10 Riverside Plaza
Suite 1800
Chicago, IL 60606
MCENERGY INC
200 Summit Lake Dr
Suite 150
Valhalla, NY 10595
Metromedia Power, Inc.
6 Industrial Way W
Eatontown, NJ 07724
MIDWEST ENERGY CHOICE LLC
8091 Evergreen Ln
Liberty Township, OH 45044
Midwest Utility Consultants, Inc.
5123 Romohr Rd
Cincinnati, OH 45244
Muirfield Energy, Inc.
5850C Venture Drive
Dublin, OH 43017
National Utility Service, Inc.
One Maynard Drive
PO Box 712
Park Ridge, NJ 07656-0712
NEP ENERGY SERVICES LTD
230 W Street
Suite 150Columbus, OH 43215
NETWORK IMPLEMENTATION CONSULTING INC
35350 Chester Rd
Avon, OH 44011
NOPEC, Inc.
31320 Solon Road Suite 20
Solon, OH 44139
North Shore Energy Consulting, LLC
423 Meadowview Dr
Sagamore Hills, OH 44067
NRGing, LLC
dba: NetGain Energy Advisors
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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Competitive Retail Electric Provider Regulated Company List
11710 Plaza America Drive
Suite 2000
Reston, VA 20190
OHIO ENERGY PROGRAM LLC
2571 Adirondack Trail
Kettering, OH 45409
OHIO HEALTHCARE PURCHASING INC
dba: OHA Solutions Inc
155 E Broad St
15th Fl
Columbus, OH 43215
OMA Service Corporation
33 N High St
6th FlColumbus, OH 43215
On-Demand Energy, Inc.
300 Corporate Center Dr
Suite 50
Moon Township, PA 15108
ONE SOURCE ENERGY GROUP LLC
2217 Langdon Fann Rd
Cincinnati, OH 45237
Optimal Facility Management Solutions, LLC
5031 N Oriole Ave
Harwood Heights, IL 60706
OPTIMUM GROUP LLC
34 Ellis Ct
Morganville, NJ 07751
Palmer Energy Company, Inc.
241 N Superior St
Suite 250
Toledo, OH 43604
Patriot Energy Group, Inc.
I Rounder Way
Suite 200
Burlington, MA 01803-5157
Paul H Myer Consulting
14144 Ladue Rd
Chesteifield, MO 63017
PEGASUS ENERGY LLC
324 Dr MLK Jr St North
Safety Harbor, FL 34695
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm? I I D=70
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uompetitive Ketau tiectric rrovider Kegulated C:ompany List
PLYMOUTH ROCK ENERGY LLC
1074 Broadway
Woodmere, NY 11598
Power Brokers, LLC
5055 Keller Springs Rd
Ste 550
Addison, TX 75001-6202
Power Management Company LLC
dba: PMC Lightsavers
1600 Moseley Road
Victor, NY 14564
POWER2SWITCH INC
820 W Jackson Blvd
Ste 700
Chicago, IL 60607
Premier Power Solutions, LLC
107 Breckenridge Street
Grove City, PA 16127
PRIORITY POWER MANAGEMENT LLC
2080 N State Hwy 360
Suite 360Grand Prairie, TX 75050-1496
Rapid Power Management, LLC
19111 N Dallas Pkwy
Suite 125
Dallas, TX 75287
RD Energy Inc.
226 Broadway E
Ste C
Granville, OH 43023
Reflective Energy Solutions LLC
1 University Plaza
Ste 407I-Iackensack, NJ 07601-6204
RELIABLE POWER ALTERNATIVES CORP
100 Garden City Plaza
Suite 410
Garden City, NY 11530
RENEWABLE RESOURCE VENTURES LLC
5131 Post Rd
Ste 285Dublin, OH 43017
Resource Energy Systems, LLC
http://www.puco.ohio.gov/apps/RegulatedCom panyList/index.cfm?I I D=70
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Competitive Retail Electric Provider Regulated Company List
1177 High Ridge Rd
Stamford, CT 06905
RIVERSIDE ENERGY INC
545 Metro Place South
Suite 100
Dublin, OH 43017
RJT ENERGY CONSULTANTS LLC
110 Washington Ave
4th Floor
North Haven, CT 06473
SATORI ENERGY LLC
550 W Jackson Blvd
Ste 777
Chicago, IL 60661
SAVE WAVE ENERGY LLC
826 Ewing Rd
Youngstown, OH 44512
Scioto Energy LLC
4041 N High St
Suite 202
Columbus, OH 43214-3248
SMART ENERGY PARTNERS LLC
3934 N Hampton Dr
Powell, OH 43065
SOURCEONEINC
132 Canal St
Boston, MA 02114
SOUTH JERSEY ENERGY COMPANY
I S Jersey Plaza
Folsom, NJ 08037
SPERIAN ENERGY CORP
2605 Camino Del Rio S
San Diego, CA 92108
STEP Resources Consulting, LLC
347 S College Ave
Suite D
Oxford, OH 45056
StonePillar Energy
545 Metro Place South
Suite 100
Dublin, OH 43017
Summit Energy Services, Inc.
http://www. puco.oh io.gov/apps/Regu IatedCompanyList/index.cfm?I I D=70
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t;ompetitive Ketail tlectric Nrovioer Kegulated C:ompany List
10350 Ormsby Park Place
Suite 400
Louisville, KY 40223
SUMMIT POWER BROKERS LLC
4110 Bridgewater Pkwy
Ste 201
Stow, OH 44224
Sustainable Energy Works, LLC
140 MiII St
Gahanna, OH 43230
SUSTAINABLE STAR LLC
3060 Mitchellville Rd
Suite 216
Bowie, MD 20716
T.E.S. ENERGY SERVICES LP
17480 Dallas Parkway
Suite 200
Dallas, TX 75287
TAYLOR CONSULTING AND CONTRACTING LLC
625 Main St
Avoca, PA 18641
Technology Resource Solutions, Inc.
dba: PAETEC Energy
600 Willowbrook Office Park
Fairport, NY 14450
TELCO PROS INC
dba: TPI EFFICIENCY CONSULTING
2806 Payne Ave
Cleveland, OH 44114
Texzon Utilities, Ltd.
204 N 1-35
Suite A
Red Oak, TX 75154
TFS Energy Solutions, LLC
dba: Tradition Energy
680 Washington Blvd
Stamford, CT 06901
THE COUNCIL ON NORTHEAST ENERGY
60105 Park Blvd
Pinellas Park, FL 33781
THE ENERGY CONSULTING GROUP LLC
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?If D=70
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Competitive Retail Electric Nrovider Kegulated Company List
2833 Smith Ave
#115Baltimore, MD 21209
THE LEGACY ENERGY GROUP LLC
32 Waterloo St
3rd Floor
Warrenton, VA 20186
The Utilities Group, Inc.
11260 Chester Rd
Ste 540
Cincinnati, OH 45246-4053
THE UTILITY STORE INC
dba: XSPENSE SOLUTIONS
667 Huntley Dr
Medina, OH 44256
TMGES INC
1602 S Indiana Ave
Suite 304
Chicago, IL 60616
TOTAL POWER SOLUTIONS LLC
9864 E Grand River Ave
Suite 100-146
Brighton, MI 48116
ULTIMATE ENERGY ADVISORS LLC
6922 Flint Cove Dr
Dallas, TX 75248
Unified Energy Services, LLC
3900 Essex Lane
Suite 750
Houston, TX 77027
USOURCE LLC
6 Liberty Ln
W Hampton, NH 03842
UTILITECH INC
dba: UTILITECH OF PA INC
3020 Penn Ave
West Lawn, PA 19609
UTILITIES ANALYSES INCORPORATED
450 Old Peachtree Rd
Suite 103Suwanee, GA 30024
Utility Management Corporation
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=70
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2508 Lakeland Dr
#100Flowood, MS 39232
VERDIGRIS ENERGY LLC
1711 Burr Oak Dr
Allen, TX 75002
Volunteer Energy Services, Inc.
790 Windmiller Drive
Pickerington, OH 43147-7770
WESTERN RESERVE ENERGY SERVICES LLC
3867 W Market St
Ste 268Akron, OH 44333
World Energy Solutions, Inc.
446 Main Street
14th Floor
Worcester, MA 01608
WORTHINGTON ENERGY CONSULTANTS LLC
445 Hutchinson Ave
Ste 800Columbus, OH 43235
Xencom Green Energy, LLC
1609 Precision Dr
Plawo, TX 75074
Generating CompanyAEP Retail Energy
325 John H McConnell Blvd
Suite 225
Columbus, OH 43215
Blue Pilot Energy, LLC
250 Pilot Rd
Suite 300Las Vegas, NV 89119
Border Energy Electric Services, Inc.
9787 Fairway Dr
Powell, OH 43065
Border Energy, Inc.
9787 Fairway Dr
Powell, OH 43065
CINCINNATI BELL ENERGY LLC
64 N Main St
Norwalk, CT 06854
http://www. puco.oh io.gov/apps/RegulatedCompanyList/index.cfm? I I D=70
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Competitive Retail Natural Gas Supplier Regulated Company List
Ohio.Gov
State Asencies Online Services
selectedindustry:Competitive Retail Natural Search
Gas Suppliert:
AggregatorALTERNATIVE UTILITY SERVICES INC
750 Veterans Pkwy
Ste 104
Lake Geneva, WI 53147
Amerex Brokers LLC
1 Sugar Creek Center Blvd
Suite 700
Sugar Land, TX 77478
Arc Energy Inc
2600 Oakstone Dr
Columbus, OH 43231
BidURenergy, Inc.
4455 Genesee St
Bldg 6
Buffalo, NY 14225
BLUESTAR ENERGY SERVICES INC
dba: BLUESTAR FNERGY SOLUTIONS
363 W Erie St
Suite 700
Chicago, IL 60654
Buckeye Energy Brokers, Inc.
8870 Darrow Road
#F106
Twinsburg, OH 44087
CINCINNATI BELL ENERGY LLC
64 N Main St
Norwalk, CT 06854
CONSTELLATION ENERGY GAS CHOICE INC
4 Houston Center1221 Lamar Street, Suite 750
Houston, TX 77010
http://www. puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I ID=11
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CONSUMER ENERGY SOLUTIONS INC
1255 Cleveland St
Suite 400
Clearwater, FL 33755
DOMINION RETAIL INC
dba: DOMINION ENERGY SOLUTIONS
120 Tredegar Street
Richmond, VA 23219
E Source Companies LLC
1965 N 57th Court
Boulder, CO 80301-2826
Early Bird Power, LLC
1 Adams St
Milton, MA 02186
ECOVA, INC
1620 S Frontage Rd
Suite 200
Hastings, MN 55033
ENERGY 95 LLC
dba: QUAKE ENERGY LLC
3055 Zuni St
Denver, CO 80211
Energy Alliances, Inc.
8469 Blue Ash Road
Cincinnati, OH 45236
Energy Cooperative of Ohio
790 B Windmiller Drive
Pickerington, OH 43147
Future Now Energy LLC
187 West Olentangy Street
Unit C
Powell, OH 43065
Gasearch, LLC
2761 Salt Springs Road
Youngstown, OH 44509
GSE Consulting, LP
8350 N Central Expy
Ste 1250
Dallas, TX 75206
H.P. Technologies, Inc.
33648 St Francis Drive
Avon, OH 44011
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=11
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HB Hayes & Associates, LLCdba: Altemative Energy Source
8225 Famsworth Road
Suite A-10
Waterville, OH 43566
HEALTHTRUST PURCHASING GROUP LP
155 Franklin Rd
Suite 400
Brentwood, TN 37027
Hess Corporation
One Hess Plaza
Woodbridge, NJ 07095
HESS SMALL BUSINESS SERVICES LLC
1 Hess Plaza
Woodbridge, NJ 07095
HIKO ENERGY LLC
12 College Rd
Monsey, NY 10952
Independent Energy Consultants, Inc.
215 W Garlield Rd
Suite 210Aurora, OH 44202
Inman Industries
1108 E Farwell Street
Sandusky, OH 44870
Integrys Energy Services-Natural Gas LLC
20 N Wacker Dr
Ste 2100
Chicago, IL 60606-3002
Lakeshore Energy Services, L.L.C.
44444 Hayes Rd
Clinton Township, MI 48038
LITTLE DEEP LLC
750 Lexington Ave
23rd Floor
New York, NY 10022
Major Energy Services LLC
100 Dutch Hill Rd
Ste 310Orangeburg, NY 10962-2198
Metromedia Energy, Inc.
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm? I I D=11
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Gompetitive Ketail Natural Cias Supplier Regulated Company List
6 Industrial Way W
Eatontown, NJ 07724
Midwest Utility Consultants, Inc.
5123 Romohr Rd
Cincinnati, OH 45244
MRDB HOLDINGS LP
dba: LPB ENERGY MANAGEMENT
12700 Park Central Dr
Suite 200
Dallas, TX 75251
Muirfield Energy, Inc.
5850C Venture Drive
Dublin, OH 43017
NOVEC Energy Solutions, Inc.
10323 Lomond Dr.
Manassas, VA 20109
OPTIONS CONSULTING SERVICES LLC
7300 International Dr
Holland, OH 43528
Palmer Energy Company, Inc.
241 N Superior St
Suite 250
Toledo, OH 43604
Patriot Energy Group, Inc.
1 Rounder Way
Suite 200Burlington, MA 01803-5157
PLYMOUTH ROCK ENERGY LLC
1074 Broadway
Woodmere, NY 11598
Power Management Company LLC
dba: PMC Lightsavers
1600 Moseley Road
Victor, NY 14564
RD Energy Inc.
226 Broadway E
Ste C
Granville, OH 43023
Reflective Energy Solutions LLC
I University Plaza
Ste 407
Hackensack, NJ 07601-6204
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?II D=11
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uompetitive rcetaii Naturai uas z:iuppiier tteguiateci company List
Solar and Renewable Energy Buyers Cooperative
231 W. Lima Street
P.O. Box 1793
Findlay, OH 45839-1793
SouthStar Energy Services LLC
dba: Ohio Natural Gas
817 W Peachtree Street NW
Suite 1000
Atlanta, GA 30308
SUMMIT POWER BROKERS LLC
4110 Bridgewater Pkwy
Ste 201
Stow, OH 44224
TELCO PROS INC
dba: TPI EFFICIENCY CONSULTING
2806 Payne Ave
Cleveland, OH 44114
Utility Management Corporation
2508 Lakeland Dr
#100Flowood, MS 39232
Volunteer Energy Services, Inc.
790 Windmiller Drive
Pickerington, OH 43147-7770
World Energy Solutions, Inc.
446 Main Street
14th Floor
Worcester, MA 01608
BrokerAcclaim Energy, Ltd.
2 Riverway
Ste 800Houston, TX 77056
ALTERNATIVE UTILITY SERVICES INC
750 Veterans Pkwy
Ste 104Lake Geneva, WI 53147
Amerex Brokers LLC
I Sugar Creek Center Blvd
Suite 700
Sugar Land, TX 77478
Arc Energy Inc
http://www.puco.oh io.gov/apps/RegulatedCompanyList/index.cfm?I I D=11
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t.ompetitive rcetao rvaturai uas auppuer rceguiateo uompany List Nage 6 ot 32
2600 Oakstone Dr
Columbus, OH 43231
Aspen Energy Corporation
9550 Dublin Rd
Suite C
Powell, OH 43065
BANC CERTIFIED MERCHANT SERVICES LLC
5006 Cemetery Rd
HIlliard, OH 43026
Blue Pllot Energy, LLC
250 Pilot Rd
Suite 300Las Vegas, NV 89119
BLUESTAR ENERGY SERVICES INC
dba: BLUESTAR ENERGY SOLUTIONS
363 W Erie St
Suite 700
Chicago, IL 60654
Bmark Energy, Inc.
791 Price St
#177Pismo Beach, CA 93449
Buckeye Energy Brokers, Inc.
8870 Darrow Road
# F 106
Twinsburg, OH 44087
CINCINNATI BELL ENERGY LLC
64 N Main St
Norwalk, CT 06854
CONNECT ONE ENERGY INC
6225 Madison Rd
Cincinnati, OH 45227
CONSTELLATION ENERGY GAS CHOICE INC
4 Houston Center
1221 Lamar Street, Suite 750
Houston, TX 77010
CONSUMER ENERGY SOLUTIONS INC
1255 Cleveland St
Suite 400Clearwater, FL 33755
DOMINION RETAII. INC
dba: DOMINION ENERGY SOLUTIONS
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm? I I D=11
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i,oinpeunve ttetan rvaturai uas auppuer r<eguiatea uompany ust
120 Tredegar Street
Richmond, VA 23219
E Source Companies LLC
1965 N 57th Court
Boulder, CO 80301-2826
Early Bird Power, LLC
1 Adams St
Milton, MA 02186
ECOVA, INC
1620 S Frontage Rd
Suite 200
Hastings, MN 55033
ENERGY 95 LLC
dba: QUAKE ENERGY LLC
3055 Zuni St
Denver, CO 80211
Energy Alliances, Inc.
8469 Blue Ash Road
Cincinnati, OH 45236
ENERGY MANAGEMENT RESOURCES OF MISSOURI INC
1536 NE 96th St
Liberty, MO 64068
Energy Professionals, LLC
13100 56th Ct
Ste 703
Clearwater, FL 33760
Future Now Energy LLC
187 West Olentangy Street
Unit C
Powell, OH 43065
GSE Consuiting, LP
8350 N Central Expy
Ste 1250
Dallas, TX 75206
H.P. Technologies, Inc.
33648 St Francis Drive
Avon, OH 44011
HB Hayes & Associates, LLC
dba: Altemative Energy Source
8225 Famsworth Road
Suite A-10
Waterville, OH 43566
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=11
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c;ompetitive Ketaii Natural tias Suppher Itegulated C:ompany List
HEALTHTRUST PURCHASING GROUP LP
155 Franklin Rd
Suite 400Brentwood, TN 37027
HESS SMALL BUSINESS SERVICES LLC
I Hess Plaza
Woodbridge, NJ 07095
HOSPITAL ENERGY SERVICES LLC
110 Riverview Dr
Guilford, CT 06437
Independent Energy Consultants, Inc.
215 W Garfield Rd
Suite 210
Aurora, OH 44202
Inman Industries
1108 E Farwell Street
Sandusky, OH 44870
Integrys Energy Services-Natural Gas LLC
20 N Wacker Dr
Ste 2100
Chicago, IL 60606-3002
Lakeshore Energy Services, L.L.C.
44444 Hayes Rd
Clinton Township, MI 48038
LITTLE DEEP LLC
750 Lexington Ave
23rd Floor
New York, NY 10022
Major Energy Services LLC
100 Dutch Hill Rd
Ste 310Orangeburg, NY 10962-2198
Metromedia Energy, Inc.
6 Industrial Way W
Eatontown, NJ 07724
Midwest Utility Consultants, Inc.
5123 Romohr Rd
Cincinnati, OH 45244
MRDB HOLDINGS LP
dba: LPB ENERGY MANAGEMENT
http://www. puco.ohio.gov/apps/RegulatedCompanyLisUindex.cfm? I I D=11
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Gompetitive Itetail Natural c3as 5uppl er Regulated Gompany List
12700 Park Central Dr
Suite 200
Dallas, TX 75251
Muirfield Energy, Inc.
5850C Venture Drive
Dublin, OH 43017
NORTH SHORE CONSULTING LLC
dba: Energy Switchboard
423 Meadowview Rd
Sagamore Hills, OH 44067
NOVEC Energy Solutions, Inc.
10323 Lomond Dr.
Manassas, VA 20109
NRGing, LLCdba: NetGain Energy Advisors
11710 Plaza America Drive
Suite 2000
Reston, VA 20190
OPTIONS CONSULTING SERVICES LLC
7300 International Dr
Holland, OH 43528
Palmer Energy Company, Inc.
241 N Superior St
Suite 250Toledo, OH 43604
Patriot Energy Group, Inc.
I Rounder Way
Suite 200Burlington, MA 01803-5157
Power Management Company LLC
dba: PMC Lightsavers
1600 Moseley Road
Victor, NY 14564
PROSPECT RESOURCES INC
8170 McCormick Blvd
Suite 107
Skokie, IL 60076
RD Energy Inc.
226 Broadway E
Ste C
Granville, OH 43023
Reflective Energy Solutions LLC
http://www.puco.ohio.gov/apps/RegulatedCom panyList/index.cfm?II D=11
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uompetitive rcetan ivaturai tias auppuer tcegutatea uompany List
1 University Plaza
Ste 407
Hackensack, NJ 07601-6204
SMART ENERGY PARTNERS LLC
3934 N Hampton Dr
Powell, OH 43065
Solar and Renewable Energy Buyers Cooperative
231 W. Lima Street
P.O. Box 1793
Findlay, OH 45839-1793
SouthStar Energy Services LLC
dba: Ohio Natural Gas
817 W Peacbtree StreetNW
Suite 1000
Atlanta, GA 30308
STONE PILLAR ENERGY LLC
dba: URC Energy
545 Metro Place South
Suite 100
Dublin, OH 43017
SUMMIT POWER BROKERS LLC
4110 Bridgewater Pkwy
Ste 201Stow, OH 44224
T.E.S. ENERGY SERVICES LP
17480 Dallas Parkway
Suite 200
Dallas, TX 75287
TELCO PROS INC
dba: TPI EFFICIENCY CONSULTING
2806 Payne Ave
Cleveland, OH 44114
Utility Management Corporation
2508 Lakeland Dr
#100Flowood, MS 39232
Volunteer Energy Services, Inc.
790 Windmiller Drive
Pickerington, OH 43147-7770
Government AggregatorAMBERLEY VILLAGE
7149 Ridge Rd
Amberley Village, OH 45237
http://www.puco.ohio.gov/apps/RegulatedCompanyList/index.cfm?I I D=11
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