BILL NUMBER: AB 2145 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 12, 2014
AMENDED IN ASSEMBLY APRIL 10, 2014
INTRODUCED BY Assembly Member Bradford
FEBRUARY 20, 2014
An act to amend Section 366.2 of the Public Utilities Code,
relating to electricity.
LEGISLATIVE COUNSEL'S DIGEST
AB 2145, as amended, Bradford. Electricity: community choice
aggregation.
Under existing law, the Public Utilities Commission has
regulatory authority over public utilities, including electrical
corporations, as defined. The Public Utilities Act authorizes a
community choice aggregator, as defined, to aggregate the electrical
load of interested electricity consumers within its boundaries and
requires a community choice aggregator to file an implementation plan
with the commission and requires that the plan include disclosures
of certain information and describe other matter. The act requires
the community choice aggregator to provide each customer an
opportunity to opt out of his or her community's aggregation program.
The act provides that customer participation in the community choice
aggregation program does not require a positive written declaration
for participation, but each customer shall be informed of his or her
right to opt out of the program. The act provides that if no negative
declaration is made by the customer regarding participation, the
customer shall be served by the community choice aggregation program.
The act requires an electrical corporation to cooperate fully with
any community choice aggregator that investigates, pursues, or
implements community choice aggregation programs, including providing
appropriate billing and electrical load data. The act requires an
electrical corporation, when requested by, and at the expense of, a
community choice aggregator, to install, maintain, and calibrate
metering devices at mutually agreeable locations within or adjacent
to the community choice aggregator's political boundaries. The act
requires a community choice aggregator to register with the
commission, which may require additional information to ensure
compliance with basic consumer protection rules and other procedural
matters.
This bill would instead provide that each customer be given an
opportunity to opt in to his or her community's aggregation program.
The bill would require a positive declaration from a customer for
participation in the community choice aggregation program and that
each customer be informed of his or her right to opt in to the
program. The bill would provide that a customer shall be served by
the community choice aggregation program if an affirmative
declaration is made. The bill would require solicitations of
customers by a community choice aggregator contain, and communication
by the community choice aggregator to the public or prospective and
existing customers to be consistent with, specified information and
would require the implementation plan to include the disclosure of
those specified information. The bill would require that the
implementation plan filed by a community choice aggregator completely
describe other matter required to be disclosed under existing law.
The bill would authorize the commission to require that a community
choice aggregator, when registering with the commission, provide
additional information to ensure compliance with basic consumer
protection and other rules and other procedural matters. The bill
would make other technical, nonsubstantive revisions to the community
choice aggregator provisions.
Under existing law, a violation of the Public Utilities Act or any
order, decision, rule, direction, demand, or requirement of the
commission is a crime.
Because the bill would impose requirements regarding communication
by a community choice aggregator, a violation of which would be a
crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 366.2 of the Public Utilities Code is amended
to read:
366.2. (a) (1) Customers shall be entitled to aggregate their
electric loads as members of their local community with community
choice aggregators.
(2) Customers may aggregate their loads through a public process
with community choice aggregators, if each customer is given an
opportunity to opt in to his or her community's aggregation program.
(3) If a customer does not opt in to a community choice aggregator'
s program, or has no community choice aggregation program available,
that customer shall continue to be served by the existing electrical
corporation or its successor in interest.
(4) The implementation of a community choice aggregation program
shall not result in a shifting of costs between the customers of the
community choice aggregator and the bundled service customers of an
electrical corporation.
(5) A community choice aggregator shall be solely responsible for
all generation procurement activities on behalf of the community
choice aggregator's customers, except where other generation
procurement arrangements are expressly authorized by statute.
(b) If a public agency seeks to serve as a community choice
aggregator, it shall offer the opportunity to purchase electricity to
all residential customers within its jurisdiction.
(c) (1) Notwithstanding Section 366, a community choice aggregator
is hereby authorized to aggregate the electrical load of interested
electricity consumers within its boundaries to reduce transaction
costs to consumers, provide consumer protection, and leverage the
negotiation of contracts. However, the community choice aggregator
may not aggregate electrical load if that load is served by a local
publicly owned electric utility. A community choice aggregator may
group retail electricity customers to solicit bids, broker, and
contract for electricity and energy services for those customers. The
community choice aggregator may enter into agreements for services
to facilitate the sale and purchase of electricity and other related
services. Those service agreements may be entered into by an entity
authorized to be a community choice aggregator, as defined in Section
331.1.
(2) Under community choice aggregation, customer participation
shall require a positive written declaration and each customer shall
be informed of his or her right to opt in to the community choice
aggregation program. If an affirmative declaration is made by a
customer, that customer shall be served through the community choice
aggregation program. If an existing customer moves the location of
his or her electric service within the jurisdiction of the community
choice aggregator, the customer shall retain the same subscriber
status as prior to the move, unless the customer affirmatively
changes his or her subscriber status. If the customer is moving from
outside to inside the jurisdiction of the community choice
aggregator, customer participation shall require a positive written
declaration and the customer shall be informed of his or her right to
opt in to the community choice aggregation program.
(3) A community choice aggregator establishing electrical load
aggregation pursuant to this section shall develop an implementation
plan detailing the process and consequences of aggregation. The
implementation plan, and any subsequent changes to it, shall be
considered and adopted at a duly noticed public hearing. The
implementation plan shall contain all of the following:
(A) An organizational structure of the program, its operations,
and its funding.
(B) Ratesetting and other costs to participants.
(C) Provisions for full disclosure of all information specified in
paragraph (15) and due process in setting rates and allocating costs
among participants.
(D) The methods for entering and terminating agreements with other
entities.
(E) The rights and responsibilities of program participants,
including, but not limited to, consumer protection procedures, credit
issues, and shutoff procedures.
(F) Termination of the program.
(G) A description of the third parties that will be supplying
electricity under the program, including, but not limited to,
complete information about financial, technical, and operational
capabilities.
(4) A community choice aggregator establishing electrical load
aggregation shall prepare a statement of intent with the
implementation plan. Any community choice load aggregation
established pursuant to this section shall provide for the following:
(A) Universal access.
(B) Reliability.
(C) Equitable treatment of all classes of customers.
(D) Any requirements established by state law or by the commission
concerning aggregated service, including, but not limited to, those
rules adopted by the commission pursuant to paragraph (3) of
subdivision (b) of Section 8341 for the application of the greenhouse
gases emission performance standard to community choice aggregators.
(5) In order to determine the cost-recovery mechanism to be
imposed on the community choice aggregator pursuant to subdivisions
(d), (e), and (f) that shall be paid by the customers of the
community choice aggregator to prevent shifting of costs, the
community choice aggregator shall file the implementation plan with
the commission, and any other information requested by the commission
that the commission determines is necessary to develop the
cost-recovery mechanism in subdivisions (d), (e), and (f).
(6) The commission shall notify any electrical corporation serving
the customers proposed for aggregation that an implementation plan
initiating community choice aggregation has been filed, within 10
days of the filing.
(7) Within 90 days after the community choice aggregator
establishing load aggregation files its implementation plan, the
commission shall certify that it has received the implementation
plan, including any additional information necessary to determine a
cost-recovery mechanism. After certification of receipt of the
implementation plan and any additional information requested, the
commission shall then provide the community choice aggregator with
its findings regarding any cost recovery that must be paid by
customers of the community choice aggregator to prevent a shifting of
costs as provided for in subdivisions (d), (e), and (f).
(8) No entity proposing community choice aggregation shall act to
furnish electricity to electricity consumers within its boundaries
until the commission determines the cost recovery that must be paid
by the customers of that proposed community choice aggregation
program, as provided for in subdivisions (d), (e), and (f). The
commission shall designate the earliest possible effective date for
implementation of a community choice aggregation program, taking into
consideration the impact on any annual procurement plan of the
electrical corporation that has been approved by the commission.
(9) An electrical corporation shall cooperate fully with any
community choice aggregators that investigate, pursue, or implement
community choice aggregation programs. Cooperation shall include
providing the entities with appropriate billing and electrical load
data, including, but not limited to, electrical consumption data as
defined in Section 8380 and other data detailing electricity needs
and patterns of usage, as determined by the commission, and in
accordance with procedures established by the commission. The
commission shall exercise its authority pursuant to Chapter 11
(commencing with Section 2100) to enforce the requirements of this
paragraph when it finds that the requirements of this paragraph have
been violated. Electrical corporations shall continue to provide all
metering, billing, collection, and customer service to retail
customers that participate in community choice aggregation programs.
Bills sent by the electrical corporation to retail customers shall
identify the community choice aggregator as providing the electrical
energy component of the bill. The commission shall determine the
terms and conditions under which the electrical corporation provides
services to community choice aggregators and retail customers.
(10) If the commission finds that an electrical corporation or
community choice aggregator has violated this section, the commission
shall order appropriate corrective action.
(11) The commission shall proactively expedite the complaint
process for disputes regarding an electrical corporation's or
community choice aggregator's violation of its obligations pursuant
to this section in order to provide for timely resolution of
complaints, so that all complaints are resolved in no more than 180
days following the filing of a complaint. This deadline may only be
extended under either of the following circumstances:
(A) Upon agreement of all of the parties to the complaint.
(B) The commission makes a written determination that the deadline
cannot be met, including findings for the reason for this
determination, and issues an order extending the deadline. A single
order pursuant to this subparagraph shall not extend the deadline for
more than 60 days.
(12) (A) An entity authorized to be a community choice aggregator,
as defined in Section 331.1, that elects to implement a community
choice aggregation program within its jurisdiction pursuant to this
chapter, shall do so by ordinance. A city, county, or city and county
may request, by affirmative resolution of its governing council or
board, that another entity authorized to be a community choice
aggregator act as the community choice aggregator on its behalf. If a
city, county, or city and county, by resolution, requests another
authorized entity be the community choice aggregator for the city,
county, or city and county, that authorized entity shall be
responsible for adopting the ordinance to implement the community
choice aggregation program on behalf of the city, county, or city and
county.
(B) Two or more entities authorized to be a community choice
aggregator, as defined in Section 331.1, may participate as a group
in a community choice aggregation program pursuant to this chapter,
through a joint powers agency established pursuant to Chapter 5
(commencing with Section 6500) of Division 7 of Title 1 of the
Government Code, if each entity adopts an ordinance pursuant to
subparagraph (A). Pursuant to Section 6508.1 of the Government Code,
members of a joint powers agency that is a community choice
aggregator may specify in their joint powers agreement that, unless
otherwise agreed by the members of the agency, the debts,
liabilities, and obligations of the agency shall not be the debts,
liabilities, and obligations, either jointly or severally, of the
members of the agency. The commission shall not, as a condition of
registration or otherwise, require an agency's members to voluntarily
assume the debts, liabilities, and obligations of the agency to the
electrical corporation unless the commission finds that the agreement
by the agency's members is the only reasonable means by which the
agency may establish its creditworthiness under the electrical
corporation's tariff to pay charges to the electrical corporation
under the tariff.
(13) Following adoption of aggregation through the ordinance
described in paragraph (12), the program shall allow any retail
customer to opt in to the community choice aggregation program.
Delivery services shall be provided at the same rates, terms, and
conditions, as approved by the commission, for community choice
aggregation customers and customers that have entered into a direct
transaction where applicable, as determined by the commission. Once
enrolled in the aggregated entity, any ratepayer that chooses to opt
out within 60 days or two billing cycles of the date of enrollment
may do so without penalty and shall be entitled to receive default
service pursuant to paragraph (3) of subdivision (a). Customers that
return to the electrical corporation for procurement services shall
be subject to the same terms and conditions as are applicable to
other returning direct access customers from the same class, as
determined by the commission, as authorized by the commission
pursuant to this code or any other provision of law, except that
those customers shall be subject to no more than a 12-month stay
requirement with the electrical corporation. Any reentry fees to be
imposed after the opt-out period specified in this paragraph, shall
be approved by the commission and shall reflect the cost of reentry.
The commission shall exclude any amounts previously determined and
paid pursuant to subdivisions (d), (e), and (f) from the cost of
reentry.
(14) Nothing in this section shall be construed as authorizing any
city or any community choice retail load aggregator to restrict the
ability of retail electricity customers to obtain or receive service
from any authorized electric service provider in a manner consistent
with law.
(15) Every solicitation of customers by a community choice
aggregator shall contain, and communication by the community choice
aggregator to the public or to a prospective or existing customer
shall be consistent with, the following information:
electric supply rate for the customer if the customer
remains with the electrical corporation compared to the electric
supply rate if the customer chooses to be served by the community
choice aggregator. Rates shall be specific to the customer class of
that customer and shall be provided for the next five years of
service. The electrical corporation shall provide its projected
electric supply rate to the community choice aggregator.
(A) The electric supply rate for the customer if the customer
remains with the electrical corporation compared to the electric
supply rate if the customer chooses to be served by the community
choice aggregator. Rates shall be specific to the customer class of
that customer and shall be provided for the next five years of
service. The electrical corporation shall provide its projected
electric supply rate to the community choice aggregator.
(B) The annual greenhouse gas emissions rate for electricity
actually delivered to customers for the previous two years if the
community choice aggregator has been serving customers and the
projected annual greenhouse gas emissions rate for electricity to be
actually delivered in the next five years of service. The projected
greenhouse gas emissions rate for each year shall be calculated using
the regulations and protocols established by the State Air Resources
Board, and for previous years using the greenhouse gas emissions
reported pursuant to Article 2 (commencing with Section 95100) of
Subchapter 10 of Chapter 1 of Division 3 of Title 17 of the
California Code of Regulations. The greenhouse gas emissions rate
shall include any emissions otherwise attributable to any first
importer supplying electricity to the community choice aggregator,
whether or not the community choice aggregator is a first deliverer
as defined in paragraph (175) of subdivision (a) of Section 95102 of
Title 17 of the California Code of Regulations.
(16) A community choice aggregator shall have an operating service
agreement with the electrical corporation prior to furnishing
electric service to consumers within its jurisdiction. The service
agreement shall include performance standards that govern the
business and operational relationship between the community choice
aggregator and the electrical corporation. The commission shall
ensure that any service agreement between the community choice
aggregator and the electrical corporation includes equitable
responsibilities and remedies for all parties. The parties may
negotiate specific terms of the service agreement, provided that the
service agreement is consistent with this chapter.
(17) The community choice aggregator shall register with the
commission, which may require additional information to ensure
compliance with basic consumer protection and other rules and other
procedural matters.
(18) Once the community choice aggregator's contract is signed,
the community choice aggregator shall notify the applicable
electrical corporation that community choice service will commence
within 30 days.
(19) Once notified of a community choice aggregator program, the
electrical corporation shall transfer all applicable accounts to the
new supplier within a 30-day period from the date of the close of the
electrical corporation's normally scheduled monthly metering and
billing process.
(20) An electrical corporation shall recover from the community
choice aggregator any costs reasonably attributable to the community
choice aggregator, as determined by the commission, of implementing
this section, including, but not limited to, all business and
information system changes, except for transaction-based costs as
described in this paragraph. Any costs not reasonably attributable to
a community choice aggregator shall be recovered from ratepayers, as
determined by the commission. All reasonable transaction-based costs
of notices, billing, metering, collections, and customer
communications or other services provided to an aggregator or its
customers shall be recovered from the aggregator or its customers on
terms and at rates to be approved by the commission.
(21) At the request and expense of any community choice
aggregator, an electrical corporation shall install, maintain, and
calibrate metering devices at mutually agreeable locations within or
adjacent to the community choice aggregator's political boundaries.
The electrical corporation shall read the metering devices and
provide the data collected to the community choice aggregator at the
aggregator's expense. To the extent that the community choice
aggregator requests a metering location that would require alteration
or modification of a circuit, the electrical corporation shall only
be required to alter or modify a circuit if that alteration or
modification does not compromise the safety, reliability, or
operational flexibility of the electrical corporation's facilities.
All costs incurred to modify circuits pursuant to this paragraph,
shall be borne by the community choice aggregator.
(d) (1) It is the intent of the Legislature that each retail
end-use customer that has purchased power from an electrical
corporation on or after February 1, 2001, should bear a fair share of
the Department of Water Resources' electricity purchase costs, as
well as electricity purchase contract obligations incurred as of the
effective date of the act adding this section, that are recoverable
from electrical corporation customers in commission-approved rates.
It is further the intent of the Legislature to prevent any shifting
of recoverable costs between customers.
(2) The Legislature finds and declares that this subdivision is
consistent with the requirements of Division 27 (commencing with
Section 80000) of the Water Code and Section 360.5 of this code, and
is therefore declaratory of existing law.
(e) A retail end-use customer that purchases electricity from a
community choice aggregator pursuant to this section shall pay both
of the following:
(1) A charge equivalent to the charges that would otherwise be
imposed on the customer by the commission to recover bond-related
costs pursuant to any agreement between the commission and the
Department of Water Resources pursuant to Section 80110 of the Water
Code, which charge shall be payable until any obligations of the
Department of Water Resources pursuant to Division 27 (commencing
with Section 80000) of the Water Code are fully paid or otherwise
discharged.
(2) Any additional costs of the Department of Water Resources,
equal to the customer's proportionate share of the Department of
Water Resources' estimated net unavoidable electricity purchase
contract costs as determined by the commission, for the period
commencing with the customer's purchases of electricity from the
community choice aggregator, through the expiration of all then
existing electricity purchase contracts entered into by the
Department of Water Resources.
(f) A retail end-use customer purchasing electricity from a
community choice aggregator pursuant to this section shall reimburse
the electrical corporation that previously served the customer for
all of the following:
(1) The electrical corporation's unrecovered past undercollections
for electricity purchases, including any financing costs,
attributable to that customer, that the commission lawfully
determines may be recovered in rates.
(2) Any additional costs of the electrical corporation recoverable
in commission-approved rates, equal to the share of the electrical
corporation's estimated net unavoidable electricity purchase contract
costs attributable to the customer, as determined by the commission,
for the period commencing with the customer's purchases of
electricity from the community choice aggregator, through the
expiration of all then existing electricity purchase contracts
entered into by the electrical corporation.
(g) Estimated net unavoidable electricity costs paid by the
customers of a community choice aggregator shall be reduced by the
value of any benefits that remain with bundled service customers,
unless the customers of the community choice aggregator are allocated
a fair and equitable share of those benefits.
(h) (1) Any charges imposed pursuant to subdivision (e) shall be
the property of the Department of Water Resources. Any charges
imposed pursuant to subdivision (f) shall be the property of the
electrical corporation. The commission shall establish mechanisms,
including agreements with, or orders with respect to, electrical
corporations necessary to ensure that charges payable pursuant to
this section shall be promptly remitted to the party entitled to
payment.
(2) Charges imposed pursuant to subdivisions (d), (e), and (f)
shall be nonbypassable.
(i) The commission shall authorize community choice aggregation
only if the commission imposes a cost-recovery mechanism pursuant to
subdivisions (d), (e), (f), and (h). Except as provided by this
subdivision, this section shall not alter the suspension by the
commission of direct purchases of electricity from alternate
providers other than by community choice aggregators, pursuant to
Section 365.1.
(j) (1) The commission shall not authorize community choice
aggregation until it implements a cost-recovery mechanism, consistent
with subdivisions (d), (e), and (f), that is applicable to customers
that elected to purchase electricity from an alternate provider
between February 1, 2001, and January 1, 2003.
(2) The commission shall not authorize community choice
aggregation until it has adopted rules for implementing community
choice aggregation.
(k) (1) Except for nonbypassable charges imposed by the commission
pursuant to subdivisions (d), (e), (f), and (h), and programs
authorized by the commission to provide broader statewide or regional
benefits to all customers, electric service customers of a community
choice aggregator shall not be required to pay nonbypassable charges
for goods, services, or programs that do not benefit either, or
where applicable, both, the customer and the community choice
aggregator serving the customer.
(2) The commission, Energy Commission, electrical corporation, or
third-party administrator shall administer any program funded through
a nonbypassable charge on a nondiscriminatory basis so that the
electric service customers of a community choice aggregator may
participate in the program on an equal basis with the customers of an
electrical corporation.
(3) Nothing in this subdivision is intended to modify, or prohibit
the use of, charges funding programs for the benefit of low-income
customers.
(l) (1) An electrical corporation shall not terminate the services
of a community choice aggregator unless authorized by a vote of the
full commission. The commission shall ensure that prior to
authorizing a termination of service, that the community choice
aggregator has been provided adequate notice and a reasonable
opportunity to be heard regarding any electrical corporation
contentions in support of termination. If the contentions made by the
electrical corporation in favor of termination include factual
claims, the community choice aggregator shall be afforded an
opportunity to address those claims in an evidentiary hearing.
(2) Notwithstanding paragraph (1), if the Independent System
Operator has transferred the community choice aggregator's scheduling
coordination responsibilities to the incumbent electrical
corporation, an administrative law judge or assigned commissioner,
after providing the aggregator with notice and an opportunity to
respond, may suspend the aggregator's service to customers pending a
full vote of the commission.
(m) Any meeting of an entity authorized to be a community choice
aggregator, as defined in Section 331.1, for the purpose of
developing, implementing, or administering a program of community
choice aggregation shall be conducted in the manner prescribed by the
Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of
Part 1 of Division 2 of Title 5 of the Government Code).
(n) Amendments to this section made by Assembly Bill 2145 of the
2013-14 Regular Session do not affect the enrollment status of a
customer already enrolled in a community choice aggregation program
prior to January 1, 2015.
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.