Decision No. R15-0406
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
PROCEEDING NO. 14R-0394EG
IN THE MATTER OF THE PROPOSED RULES RELATING TO DATA ACCESS AND
PRIVACY FOR ELECTRIC UTILITIES, 4 CODE OF COLORADO REGULATIONS 723-3
AND DATA ACCESS AND PRIVACY RULES FOR GAS UTILITIES, 4 CODE OF
COLORADO REGULATIONS 723-4.
RECOMMENDED DECISION
OF ADMINISTRATIVE LAW JUDGE
G. HARRIS ADAMS
AMENDING RULES
Mailed Date:
May 1, 2015
TABLE OF CONTENTS
I.
STATEMENT...........................................................................................................................2
II. FINDINGS, DISCUSSION, AND CONCLUSIONS ..............................................................3
A. Definitions .........................................................................................................................4
1.
Definition: Person ......................................................................................................4
2.
Definition: Aggregated Data ......................................................................................5
3.
Definition: Contracted Agent .....................................................................................6
4.
Definition: Customer ..................................................................................................7
5.
Definition: Customer Data .........................................................................................7
a.
Customer Data versus Personal Information ..............................................................9
6.
Definition: Standard Customer Data ........................................................................10
B. Privacy, Access, and Disclosure, Generally ....................................................................11
C. Customer Notice ..............................................................................................................13
1.
Delivery Methods .....................................................................................................14
D. Customer Consent ...........................................................................................................14
1.
Gas Transportation Service ......................................................................................14
2.
In-Person Consent ....................................................................................................15
E. Customer Consent Form ..................................................................................................16
Decision No. R15-0406
F.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
1.
Changes to Commission-Provided Consent Form Over Time .................................16
2.
Integration of Consent in Other Forms. ...................................................................18
Language Translations.....................................................................................................19
G. Local Government Audit Exceptions ..............................................................................20
H. Community Energy Reports ............................................................................................24
I.
Property Owner Access to Data ......................................................................................26
J.
Aggregated Data Standard ...............................................................................................32
K. Regulated Electric Utility Rule Violations, Civil Enforcement, .....................................33
L. Ombudsman .....................................................................................................................33
M. Data Access .....................................................................................................................34
1.
Raw Customer Data .................................................................................................35
2.
Portfolio Manager ....................................................................................................36
3.
Green Button ............................................................................................................36
4.
Electric Utility Filing Required ................................................................................39
5.
Multiple Overlapping Requests ................................................................................40
N. Tiering of Utilities. ..........................................................................................................42
III. ADAPTATION OR APPLICABILITY UNIQUELY TO GAS RULES...............................44
IV. CONCLUSIONS ....................................................................................................................45
V. ORDER ...................................................................................................................................45
A. The Commission Orders That: ........................................................................................45
I.
STATEMENT
1.
On May 6, 2014, the Public Utilities Commission issued the Notice of Proposed
Rulemaking (NOPR) that commenced this proceeding. See Decision No. C14-0461 issued
May 6, 2014. The Commission referred this matter to an administrative law judge (ALJ) and
scheduled a hearing for July 1, 2014. The purpose of the proposed amendments to the rules
governing access to and privacy of customer data in the possession of utilities is to make the
rules more effective and efficient.
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Decision No. R15-0406
2.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Throughout the proceeding written comments were filed with the Commission by
Black Hills/Colorado Electric Utility Company LP and Black Hills/Colorado Gas Utility
Company, LP (Black Hills); Boulder County, Bruce Stevens; City and County of Denver; City of
Arvada; City of Aurora; City of Boulder; City of Golden; City of Westminster; Colorado
Communications and Utilities Alliance; Colorado Apartment Association; Colorado Energy
Office (CEO); Colorado Natural Gas, Inc.; Colorado Department of Public Health &
Environment; Colorado Office of Consumer Counsel (OCC); Durango Mountain Utilities, LLC;
Energy Outreach Colorado; Institute for Market Transformation, Natural Resources Defense
Council, and Southwest Energy Efficiency Project; Mission:data; Public Service Company of
Colorado (Public Service); SourceGas Distribution LLC and Rocky Mountain Natural Gas LLC
(respectively, SourceGas Distribution and Rocky Mountain); Rocky Mountain Trane; U.S.
Energy Information Administration; and Western Resource Advocates (WRA).
3.
Being fully advised in this matter and consistent with the discussion below, in
accordance with § 40-6-109, C.R.S., the ALJ now transmits to the Commission the record and
exhibits in this proceeding along with a written recommended decision.
II.
FINDINGS, DISCUSSION, AND CONCLUSIONS
4.
The statutory authorities for these rules are §§ 24-4-101, et seq., 40-1-101, et seq.,
40-2-108, 40-3-102, 40-3-103, 40-4-101, and 40-4-108, C.R.S.
5.
The proceeding first focused on proposed modifications to the Commission’s
electric rules, then evolved to proposed modifications to the gas rules. Topics generally overlap
both sets of rules.
6.
At the scheduled time and place, the hearing was convened. Throughout the
hearing in this proceeding and through written comments, all who are interested have had
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extensive opportunities to thoroughly discuss, review, and comment upon modifications to the
rules. Decision Nos. R14-1001-I, R15-0073-I, and R15-0102-I solicited further comment on
proposed changes to the rules utilizing redlined changes to prior versions, based upon comments
at that point of the proceeding (Hearing Exhibits 2, 7, and 8 respectively).
7.
The undersigned ALJ has reviewed and considered the record in this proceeding
to date, including written and oral comments. This Recommended Decision generally focuses on
contested issues addressed during the course of the proceeding. All modifications to the rules are
not specifically addressed herein. Changes incorporated into the rules attached hereto are
recommended for adoption. Any specific recommendations made by interested parties that are
not adopted below or otherwise incorporated into the redlined rules attached are not adopted.
8.
As commented by the CEO, the proposed rules will continue to ensure that
“individual customer data must be kept private by default.” The adopted rules effectively allow
customers to leverage new capabilities of utilities in ways not available before and respect
customer privacy interests when information is released without consent.
A.
Definitions
1.
9.
Definition: Person
Boulder points out that person is defined in the Public Utility Law at C.R.S. § 40-
1-102(10) to mean “any individual, firm, partnership, corporation, company, association, joint
stock association, and other legal entity.” However, if the Commission wishes to ensure that its
Rules are not misinterpreted, Boulder recommends that the definition of person found in the
Public Utility Law be duplicated in the Rules.
10.
Rule 3001 explicitly provides that definitions found in the Public Utilities Law
apply to these rules.
Statutory definitions control and apply without duplication.
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The Commission already duplicated the definition in Rule 1004(w) of the Rules of Practice and
Procedure, 4 CCR 723-1, which also applies to electric and gas utilities.
11.
Clarifying language will be added to the first paragraph of the definition rule
regarding the hierarchy and applicability of rules found in the Commission’s Rules of Practice
and Procedure (i.e. including person). However, the definition will not be repeated here.
2.
12.
Definition: Aggregated Data
Black Hills suggests deleting the words “or premises” from the definition of
aggregated data.
Black Hills contends that because the definition contains the words “or
premises,” the rule could enable a third party to request customer data for a single customer if
that customer has more than one premise.
13.
Public Service supports clarifying the definition of aggregated data by explicitly
and fundamentally requiring the combination of data from more than one customer explicit.
14.
Other parties, including the OCC and the City of Boulder argue the Commission
should include the concept of anonymized data. Similar to aggregated data, anonymized data has
all potential customer identifying information removed. Public Service supports the concept.
While the rules generally use the word “aggregated” to mean a summation of a group of
customers’ data (i.e., the total use of a certain geographic area over a certain time period), the
word aggregated is also used in other contexts to refer to a group or compilation of individual
customer records.
15.
The OCC proposes that second category (a group of individual records released
together) should be referred to as “anonymized,” whereas the first example (a summation of the
use in a given area) should be referred to as “aggregated.” The OCC believes it is necessary,
even in the absence of other changes to the 15/15 rule, to make clear that the 15/15 rule covers
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PROCEEDING NO. 14R-0394EG
only the release of “aggregated” data, and not the release of “anonymized” data. Illustratively,
OCC sites that repetitive access to data sets can allow determination of individual information
based upon comparisons and analysis. Also, “anonymized” datasets may be combined with
datasets available from other sources that may contain personally identifiable information and
that it may be possible to re-identify particular customers by linking those datasets.
16.
Public Service generally agrees with the distinction drawn by the OCC between
aggregation and anonymization — aggregation (the summation of data belonging to two or more
individuals) being different from anonymization (the stripping data of individual identification).
Public Service believes that there is value in defining anonymized data as distinct from
Aggregated Data and providing utilities with explicit guidance on whether utilities are to make
anonymized data available, and under what circumstances. A statistical study is proposed on the
topic.
17.
Regarding aggregated data and anonymized data, the undersigned agrees that the
Commission’s rules should address both concepts.
However, it has not been shown that
protections for aggregated data are inadequate to protect anonymized data or aggregated data
reports containing anonymized data. Thus, the definition of aggregated data will be modified to
include anonymized data. Data reports including anonymized data may be made available,
subject to applicable restrictions (i.e. the 15/15 rule).
3.
18.
Definition: Contracted Agent
Public Service recommends that the reference to a contracted agent’s access to
customer data from a utility, continue to be a part of the definition. The purpose of specifically
identifying persons or entities with which utilities contract to provide regulated utility services in
the data privacy rules is to address how to handle customer data in the contractual relationship.
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As such, Public Service recommends the definition in the electric rules make explicit that a
contracted agent means “any a person or entity that has contracted with a utility in compliance
with Rule 3029(a) to assist in the provision of regulated utility service….”
19.
Contracted agent is defined Rule 1004(l) of the Rules of Practice and Procedure,
4 CCR 723-1, and applies to all industry rules. Illustratively, this structure permits Public
Service to engage a contracted agent to assist in the provision of natural gas and electric utility
service. The definition will not vary as to utility service.
20.
Rather than adopt definitions of different types of contracted agent, rule 1004(l)
will be relied upon and applied in the context of the subject matter rules. While the definition
will be redundantly included in industry rules, it will remain identical to the Rules of Practice
and Procedure to avoid any potential for conflict in application across the Commission’s
jurisdiction.
4.
21.
Definition: Customer
Public Service recommends that the definition of customer explicitly include
references to an entity, in addition to person. The proposed modification is redundant because an
entity is already included in the definition of person. Particularly with the clarifying language
added to Rules 3001 and 4001, the proposed modification is not necessary.
5.
22.
Definition: Customer Data
Black Hills comments that the third part of the definition of customer data, which
reads “shown on bills issued to the customer for regulated utility service,” is overly broad and
not reasonable. Specifically, name and address – “shown on bills issued to the customer” – are
publicly and lawfully available from many sources (e.g., telephone books, county property tax
records, the Secretary of State business-searchable database). Therefore, Black Hills requests
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that the customer data definition be modified as follows: (III) shown on bills issued to the
customer for regulated utility service when not otherwise publicly or lawfully available.
23.
Public Service supports Black Hills’ comments limiting customer data to
information that is “not otherwise publicly or lawfully available.”
24.
Boulder supports the Commission’s proposed revisions to the definition of
customer data as they clarify what had been a confusing use of the word “and” in the definition.
25.
Additionally, Black Hills requests clarification whether other information
concerning a customer’s payment and collections history is implied to be customer data and
therefore protected from disclosure to third parties without written customer consent.
While “past due amount” is shown on the customer’s bill – and therefore clearly becomes
customer data by Commission definition – Black Hills is unclear whether other information,
not shown on the bill, but related to payment and collections, should be equally protected from
disclosure. This type of information includes payment history and arrearage amounts by aging
categories. This is sensitive information and guidance is sought on this point.
26.
Under the rules, the combination of publicly available information with
information not publicly available is protected. Information that is publicly available, that might
also happen to appear on a bill need not be protected when provided alone. Prior rule focused
upon the customer bill as a bright line delineation of the scope of customer data.
27.
This proceeding focuses more on access to data than prior proceedings. Thus, it is
appropriate to reconsider the scope of data that will be accessed. Rather than solely limiting the
availability of data to current utility practices, access will be considered in light of the data
available. Illustratively, data available from installed equipment that is not used as a billing
determinant (e.g., a production meter) is still data that should be accessible to the customer.
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28.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
To further clarify as to payment and collection history, it is notable that one
component of customer data is defined in terms of information included on bills, as opposed to
the bills themselves. Thus, including amounts billed and paid on a customer’s bill requires that
the same information in utility systems be protected (i.e. payment history and outstanding
balance).
29.
Boulder proposes changes to the modified definition of customer data to further
expand the reference to program participation.
30.
Public Service agrees with the City of Boulder’s comments that the wording in
the existing rule does not effectively describe information on customer participation in regulated
programs, and supports modifications to the definition that would simply refer to customer
participation information, as opposed to participation information received from the customer.
31.
The proposal is reasonable and will be adopted.
a.
32.
Customer Data versus Personal Information
Public Service proposes modifications to maintain a clear distinction between the
definitions of customer data and personal information. Public Service believes that the utility
should not be the source for third party access to personal information and that
personal information must continue to be distinguishable from the broader access rules that apply
to customer data.
33.
Public Service comments that there is confusion created by the potential overlap
between the existing definitions of, and rules pertaining to, personal information and customer
data.
Limiting customer data to customer identifying information appearing on bills in
combination with either customer-specific energy usage information or information about the
customer’s participation in a regulated program resolves the confusion.
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Decision No. R15-0406
34.
SourceGas Distribution and Rocky Mountain find the following statement in the
rule addressing Privacy, Access, and Disclosure to be confusing: “Unless the information is
included as customer data, a utility shall not disclose personal information, except as provided in
rule 1105.” Clarification is requested by providing examples of when personal information is
“included as customer data.” The Commission also should clarify the relationship between Rule
4 CCR 723-1-1105 and Rule 4027(b), which seems to imply that the provision of personal
information that is “included as customer data” would not be governed by Rule 4 CCR
723-1-1105.
35.
The definition of customer data will be modified to eliminate overlap in the
definitions. Customer specific information that is not publicly available and appears on the
customer’s bill will remain customer data. Customer identifying information, such as a
customer’s name, when combined with energy usage information or information about
participation in regulated program will also remain customer data.
6.
36.
is significant
Definition: Standard Customer Data
Public Service comments that the current definition of standard customer data
as
it
embodies
the
cost-causation
principle.
Public Service recommends that the “actively maintained” distinction continue to apply to
standard customer data.
37.
It is important to read the definitions of customer data and standard customer data
together and consistently, by incorporating the concept of active maintenance, to make Standard
Customer Data more restrictive than Customer Data. The concept of "active maintenance"
comports with the cost-causation principles that support the demarcation between Standard and
Non-Standard
Customer
Data.
Consistent
10
with
cost-causation
principles,
Decision No. R15-0406
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Public Service contends that providing Standard Customer Data as a part of utility service
extends only to information that is readily accessible or "actively maintained" in the utility’s
systems in the ordinary course of business.
38.
The undersigned agrees with the delineation as the foundational distinction of
standard customer data recognizing cost-causation principles. However, unanswered questions
remain because of the ambiguous term. Specifically, how should “actively maintained” be
distinguished from being otherwise maintained? The existing “actively” qualification will be
stricken and standard customer data will focus upon that maintained in the ordinary course of
business.
B.
Privacy, Access, and Disclosure, Generally
39.
Public Service believes that all customers have a privacy or confidentiality
interest in their specific energy data, regardless of the particular rate class to which they belong.
Public Service suggests that the phrase, “…and reasonable access restrictions expectations…,”
be inserted in the rule to respect the various data access concerns and expectations that
commercial or industrial customers may have.
40.
The undersigned joins in the belief regarding expectations conceptually; however,
other comment opposes including reference to reasonable expectations of a customer.
At hearing, Black Hills raised concern applying the standard in light of unique customer
perspectives.
41.
Black Hills proposes rule modifications, based on findings by both independent
and proprietary survey research, that customers of the regulated utility find value in offers
of consumption-related goods and services as part of utility non-regulated functions
(e.g., Service Guard).
Black Hills proposes that Service Guard be permitted to reach
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Black Hills’ customers by telephone, mailing address, or email only and promptly honor
customers’ requests to cease marketing contacts when so notified.
42.
WRA contends that modifications proposed by Black Hills regarding the
provision of non-utility services should be rejected based upon the same rationale expressed in
Decision No. C11-1144.
43.
The undersigned agrees with the comments of WRA. Black Hills’ proposal will
not be adopted because it reflects the utility’s pecuniary interest in a business not regulated by
the Commission, rather than the public interest. The foundation of a public utility’s relationship
with its customer is the essential nature of public utility service. Particularly as an essential
service, the customer does not generally choose to provide information about themselves to the
utility for dissemination to others. Information may be used when the customer consents to
appropriate disclosure in accordance with these rules. However, even where some customers
find value in a non-regulated service provided by a utility, permitting use of information about all
customers for non-regulated purposes (e.g. including those not finding value) is not appropriate.
Additionally, permitting non-regulated use of regulatory information by a non-regulated affiliate
of a utility creates a slippery slope for others seeking to use the same information.
44.
Public Service also recommends retaining the provision in the Rule 3027 and
4027 that Standard Customer Data is provided by a utility as part of basic utility service.
The request is reasonable and the introductory phrase will be retained.
45.
Black Hills is concerned that the words reference to “adequate protections for the
utility’s system security” are not stringent enough protections. Black Hills believes the word
“appropriate” should replace “adequate” to impart a stricter standard for electronic entry into the
utility’s system to access the customer’s standard customer data.
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46.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Comment has not demonstrated need for the proposed modification because, as
applied, no material distinction has been shown.
Adequate protections are appropriate
protections.
C.
Customer Notice
47.
Requiring customer notice about data access and privacy strikes a balance to
inform customers regarding data access when they enter and exit the system as well as when
their needs change over time. Significant comment is directed at the notice content and required
languages.
48.
Public Service proposes the notice:
shall specifically identify for customers the different elements of customer data
being requested and the intended use of that information, including any further
sharing with other third parties. The notice shall advise the customers to consider
the proposed scope, purpose, and use of customer data prior to authorizing the
disclosure of customer data to third-parties.
49.
WRA proposes that the phrase “specifically identify” in the first sentence be
replaced with “summarize” as being more appropriate for purposes of the annual notice.
Further, that the phrase “including any further sharing with other third parties” be deleted from
the first sentence. WRA is concerned that the phrase is not defined and is excessively vague.
It may also cause unnecessary alarm for customers.
50.
WRA is correct that the notice at issue is a general notice to be provided to
customers annually. As such, the specific level of applicable detail identified by Public Service
is neither appropriate nor necessary. The rule will be modified to provide notice to customers of
available information from the utility (as opposed to a general categorical description), how often
the information can be provided by the utility, and the available level of detail.
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1.
51.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Delivery Methods
SourceGas Distribution and Rocky Mountain contend that the rule should be
modified to expressly authorize utilities to send the customer notice electronically to those
customers who have consented to receive their bills through the e-billing option allowed by rule.
SourceGas Distribution and Rocky Mountain have found that their customers who have
consented to receive their bills through the e-billing option expect to receive notifications from
their utility by electronic means, rather than by hard copy in the mail. Moreover, the ability to
send this notice electronically to customers receiving e-bills will eliminate the cost otherwise
incurred to mail hard copy notices to those customers.
52.
Public Service agrees with SourceGas Distribution and Rocky Mountain and
supports the modification.
53.
The comment is reasonable and will be incorporated in the rules adopted with the
condition that notice delivered electronically must be separate from any billing. By electronic
delivery, the additional cost, if any at all, will be minimal and separate delivery from a bill
maximizes the opportunity to draw customer attention.
D.
Customer Consent
1.
54.
Gas Transportation Service
SourceGas Distribution first raises a concern that gas transportation customers
(shippers) could be affected by these rules, especially for requests coming from a transportation
customer’s agent. In their respective tariff, these companies have Forms of Agency Agreements
where a transportation customer provides its agent with “full authority to act on its behalf in
managing gas transportation.” Because such transportation customers already have conferred
full authority on their agents to act on their behalf, which would include obtaining the customer’s
customer data from SourceGas Distribution and Rocky Mountain, requiring such
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transportation customers to execute a Consent to Disclose Utility Customer Data and applying
the proposed Gas Data Access and Privacy Rules to those customers would be duplicative and
could create confusion.
55.
Public Service does not believe that the consent process poses a conflict for gas
transportation customers with agents, based upon agency law.
56.
The undersigned agrees with the comment and analysis of Public Service
regarding gas transportation customers. In those instances, the agent stands in the shoes of the
customer under agency law. This is not the case in consent to provide data access. The rules
adopted by the Commission are not intended to affect operation of agency law.
Based thereupon, modification is not needed to accommodate gas transportation service.
2.
57.
In-Person Consent
Comment suggests that utilities should strive to continue to adopt new electronic
and in-person consent processes that are consistent with nationally recognized best practices.
Boulder supports that a customer ought to be able to visit a utility's business office to file a
customer consent form, and get a receipt of acknowledgement from the utility. Other comments
support an optional approach for utilities.
58.
CNG contends that utilities should be allowed to offer the consent process
electronically or in-person. CNG believes that the language of the rule should be as proposed
with "may make available."
59.
CNG’s approach is reasonable and will be adopted. Based upon the comments
received, it appears that the burden would outweigh the benefit of requiring a retail location in
order to facilitate the in-person consent process.
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E.
Customer Consent Form
60.
Initial comments addressed proposed changes to the customer consent form and
associated processes for making changes to the form.
By Decision No. R14-0759-I, the
undersigned suggested that interested stakeholders collaborate on making joint comments to
address concerns and reach agreement on modifications to the consent form.
61.
During the course of the proceeding, a group of interested stakeholders
collaborated to address concerns and reach agreement on modifications to the form customers
use to give consent to disclose their information to third parties. The CEO filed supplemental
comments supported by Boulder County, City and County of Denver, City of Arvada, Energy
Outreach Colorado, Public Service Company of Colorado, and Western Resource Advocates
(collectively the Joint Form Commentors) joined in comments proposing a new form.
62.
The consensus proposal to modify the consent form, with very minor additional
modifications, was incorporated into Hearing Exhibit 2 for additional comment. The proposal is
incorporated with the adopted rules. The newly-revised requirements are within the scope of the
prior form or do not materially modify the scope of consent given under prior forms. As such,
consent forms executed by customers prior to the effective date of rules adopted in this
proceeding may continue according to their terms.
1.
63.
Changes to Commission-Provided Consent Form Over Time
Public Service supports a process for revising or amending the customer consent
form that is separate from a proposed NOPR. Public Service supports Commission Staff being
able to initiate a process based on requests made to them for materially significant changes to the
approved form.
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Before the Public Utilities Commission of the State of Colorado
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Boulder County suggests a 30 or 60 day notice be filed with the Commission prior
to the adoption of a new consent form, and that there be a mechanism whereby parties can meet
in a non-adjudicated setting to resolve any outstanding issues brought forth by the changes.
Where the process did not lead to agreement, a petition might be filed for Commission
resolution.
65.
Public Service requests clarification whether a new consent form is required when
the terms of an existing form would change, such as the type of information or the frequency of
data deliver (i.e., from a single release to an ongoing release). The Joint Form Commentors
request that the Commission make it explicit that the consent form remains valid (i.e., no new
consent form is required) if contact persons of the data requesting entity identified in consent
forms change.
In any event, Denver emphasizes the importance of ensuring that previous
versions of the form be grandfathered to avoid having to obtain consent on a new form for
continuing authorization.
66.
The undersigned conceptually agrees with Commenters. While the consent form
has been addressed and modified in connection with rulemaking considerations, the form itself is
not part of the Commission’s rules. Rather, the rule establishes requirements for the form and
requires Commission Staff to maintain the form and make it available in compliance with the
rule requirements. Thus, the form may be modified informally over time for improvement
without rulemaking so long as the modifications are consistent with existing rule.
67.
Consistent with the clarification sought, rule language will be modified to make
clear that the validity of consent will not be affected by changes to the Commission-approved
form over time. Consent will be valid according to its terms until terminated, without regard to
subsequent changes to the Commission-approved form. A safe harbor provision will be added to
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the rule establishing a presumption of compliance with the Commission’s rules to the extent of
reliance upon a version of the form made available on the Commission’s website.
By this approach, anyone investing in an electronic consent process can also be assured that form
modifications will not be required in absence of a rulemaking proceeding. In the event of
conflict, a petition may be filed requesting relief.
68.
Proposals also address when some changes in circumstances occur following
execution of the consent form.
A customer consents to disclosure of customer data to a
third party for a specified purpose. The undersigned views any change to the party receiving the
data to be a material change affecting the consent given. However, where an organization is
constant and the individual representative changes over time, the party to whom the data is
provided has not changed. Thus, some changes affecting information included on the consent
form will be recognized in rule not to invalidate the consent.
2.
69.
Integration of Consent in Other Forms.
The Colorado Apartment Association (The Association) represents apartment
owners and property managers throughout the State of Colorado. The Association comments
that developers plan and strive for energy efficiencies in new builds and property managers have
an interest in monitoring efficiency. It encourages expanding access to utility energy use data to
assess energy efficiency in buildings and contends that property managers and property owners
should be able to access information on their properties without getting resident approval in for
lease units. The Association’s comments also state that any requirement for annual approval
would impose a substantial additional administrative burden.
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Before the Public Utilities Commission of the State of Colorado
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The Association addressed the administrative burden in having to obtain customer
consent to obtain information for use in affordable housing programs. Comment contends that
expanding these burdens to all leased units would result in extreme additional burden.
71.
Natural Resources Defense Council, the Southwest Energy Efficiency Project, and
the Institute for Market Transformation request similar changes.
72.
The undersigned declines to adopt these proposals. Consent to release customer
data is and should remain a stand-alone process between the utility and its customer.
This process maximizes the likelihood of informed customer consent while ensuring efficient
management of the process by utilities in accordance with the wishes of customers.
This information is not available to third parties from any other source and may reveal
information about the way customers use energy. Reasonable caution is warranted and need not
be complicated with an infinite possibility of other types or terms of agreement.
F.
Language Translations
73.
The rules introduce a requirement for utilities to make notice and consent forms
available in English and Spanish, as well as an efficient process for the same information to be
made available in other languages.
74.
CEO supports having consent forms available in other languages to ensure
customers are giving informed consent to disclosing data when participating in weatherization
programs.
75.
Throughout the proceeding, comment was solicited to require the customer notice
and customer consent form, as applicable, to be translated into other language based upon
objective criteria in the latest U.S. Census information.
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Decision No. R15-0406
76.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Comment highlighted the complexity and resulting lack of clarity as to census
criteria for determining languages in which utilities must make notice and consent forms
available. No clear reasonable standard emerged that could be implemented and managed by
utilities. This convinced the undersigned that the general approach alternatively advocated by
the OCC should be pursued. Therefore, the focus shifted toward adoption of a process in rule for
additional translations that could be relied upon by customers, vendors, utilities, and the
Commission alike.
77.
Some comment addresses translation cost. While there is little specific cost
information or projected number of translations, the cost to translate one English form to Spanish
for use of all utilities need only be incurred once under the adopted rule. This translation cost
will be incurred as part of basic utility service. The prudently incurred costs to comply with
Commission rules may be addressed in an appropriate proceeding. 1
G.
Local Government Audit Exceptions
78.
Substantial comment was provided regarding disputes about local government
access to customer data. There is a demonstrated need for an exception to the data privacy rules
permitting regulated utilities to disclose customer data to municipal auditors as reasonably
necessary to determine the accuracy of franchise fees. However, no need has been shown to
permit use of customer data for other local government purposes.
79.
To be clear, the proper focus of this proceeding is upon rules of general
applicability, rather than tailoring rules in an attempt to solve every existing franchise or
1
Comments suggest translation cost would be recovered as any other cost to inform rate payers of their
rights and obligations. In light of the purpose of the translated forms comment also suggests that recovery through
the DSM recovery mechanism would be appropriate.
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ordinance issue. Other options remain for parties to modify franchise agreements, seek waivers
of Commission rules, or seek other relief as appropriate.
80.
Westminster first contends that protections found in State law negate any need to
limit distribution of customer data local governments receive from a utility.
Westminster
contends that Colorado municipalities are already required to protect personally identifiable
information and confidential commercial information of private entities, including that provided
by regulated public utilities. Citing §24-72-501 et seq. and 24-72-204(3)(a)(IV), (IX), C.R.S.
81.
Illustratively, although the process described in comment apparently never got
very far, it is interesting to question how Westminster’s privacy policy implementation
minimized “the collection of personally identifiable information to the least amount of
information required” when it requested that Public Service provide “[o]ne recent sample month
containing the addresses and billing statements included in the City of Westminster's gross
revenue calculations,
to verify that
the correct addresses
and
bill amounts are
included/excluded.” Although, after Public Service’s apparent refusal to provide information, the
City later agreed: “Note: personal identifying information related to customer's individual use
may be redacted to protect their privacy.” 2
82.
Section 24-72-501 et. seq. enumerates a list of items that the privacy policy of
each governmental entity must address. However, there are no objective criteria that are required
to apply, no penalty for a local government violating any privacy policy adopted, and no
assurance of consistency either between customers within different local government
jurisdictions or as to a specific utility customer’s information provided to two local governments.
Additionally, neither §24-72-501 et seq. nor 24-72-204(3)(a)(IV), (IX), C.R.S. limit use or
2
This illustration should not be read to imply that a local government may not need further information
during the course of an audit.
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distribution of customer data once in the hands of the local governments. These protections have
not been shown to be adequate protection for customer data obtained pursuant to a franchise
agreement for purposes of auditing franchise fees.
83.
Some comment raises concern about protections for use of customer data by
Commission rule in light of existing local law. Cities argue that non-disclosure agreements are
unnecessary because local governments will have existing standards to protect customer data.
Denver points out that it imposes eight taxes under the Denver Revised Municipal Code.
Denver, and like all municipalities that it is familiar with, prohibits municipal auditors from
disclosing any information gained from a tax audit, except in accordance with a judicial order.
See, Denver Revised Municipal Code § 53-8.
84.
Westminster also objects to non-disclosure agreement requirements, supporting
the comments of Denver.
Like Denver, Westminster comments that the city, its officers,
employees, and legal representatives must hold such information in confidence and provides
criminal penalties for the failure to do so. Citing §§4-l-12 and 4-1-35(C), Westminster Municipal
Code. Westminster also points to provisions of its franchise agreement governing nondisclosure.
85.
Variation and existence of protections across all local governments can best be
assured by adopting standards in Commission rule. Comment fails to show protections of all
affected local governments in the state (i.e. counties as well as cities not addressed in coment).
The undersigned is concerned as to the unique nature of customer data and the limited use for
which it is made available to local governments to further franchise agreements. The fact that
one local government affords appropriate protection for some customers of a utility provides no
assurance that another local government will equally protect customer data (or even the same
customer will be equally protected if customer data is provided to two local governments).
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The rules adopted will maintain and ensure uniform protections for the disclosure and use of
customer data across jurisdictions.
86.
Some comment addresses arrangements of local governments with outside
auditors. It has not been shown that appropriate protections exist for all local governments or
that those protections applicable to tax administration explicitly and necessarily apply in all
instances to franchise fees. By conditioning access to customer data, the adopted rules facilitate
local government audits while maximizing the opportunity to protect disclosure of customer data
in the first instance as well as for others engaged by such local governments.
87.
Some comment also supports adoption of a Commission rule governing local
government access to customer data in connection with tax audits. Such proposals have not
convinced the undersigned that sufficient need warrants the complexities to reconcile and
address jurisdictional boundaries. At this time, no attempt will be made to affect the exercise of
local government jurisdiction apart from the exercise of Commission jurisdiction over franchises.
The gas and electric rules already contain explicit provisions permitting disclosure of customer
data as required by law or to comply with Commission rule. In addition to not being convinced
of need, the undersigned has little confidence in the ability to anticipate, capture, and address
every tax or fee imposed by all local governments affected by these rules.
88.
In sum, comment demonstrates there have been differences regarding audits of
franchise fees. Comment and argument presented demonstrates the need for Commission rules
to facilitate local government audit of franchise fees and to consistently protect the use and
disclosure of customer data by local governments pursuant to these rules. A rule will be adopted
balancing local government desires to use and access customer data with interests of utilities and
customers. Notably, the Commission is not attempting to limit, condition, or address local
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PROCEEDING NO. 14R-0394EG
government jurisdiction (e.g. taxation). Rather, the rule focuses upon a structure to facilitate
access to customer information from a utility as reasonably necessary in connection with the
exercise of Commission jurisdiction over franchises, including accommodation of outside
auditors.
89.
Westminster also seeks modification to required destruction or return of
information when such requirement would conflict with other mandates.
The proposal is
reasonable and will be incorporated.
H.
Community Energy Reports
90.
Local governments have a vested interest in evaluating effectiveness of local
energy efficiency programs and regular reporting of certain data for Green House Gas
Inventories, Climate Action Plans, etc. There is broad support in comment for public utilities to
provide local governments with annual community energy reports to better understand energy
consumption (at customer expense). Comment also supports aggregation in community energy
reports so that individual customer data is not disclosed or cannot be determined through data
manipulation.
91.
Comment contends the obligation should only apply where a utility serves more
than a majority for municipalities in which it serves at least 50,000 customers and for counties in
which it serves the majority of the residents. Therefore, a standard Community Energy Report
should not be required where a small portion of a community is served. SourceGas Distribution
contends it should not be required to create a report for the fewer than 12,000 of the nearly
270,000 residents it serves in Weld County or in any municipality in Weld County where its
largest locality served has fewer than 4,000 customers. However, if Weld County desires to have
county-wide information, such information cannot be complete without combining information
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of all utilities serving in the county. Therefore, the focus will continue toward the size of the
utility and community rather than portions of communities served.
92.
CNG contends that applying the Community Energy Report concept from electric
rules would be burdensome to gas utilities because sufficiently anonymous customer data may be
almost impossible for small utilities with noncontiguous service areas to develop.
93.
At present, local governments comment that they have no idea how
Public Service defines a jurisdictional boundary. It appears local governments generally have the
ability to create GIS map files of jurisdictional boundaries or have access to such a file from
another local government. It also appears that the largest tier of public utilities has the ability to
utilize GIS map files to generate reports based upon jurisdictional boundaries.
94.
report
that
A rule will be adopted establishing a Community Energy Report as a standard
utilities
will
provide without
any requirement
for customer
consent.
Particularly because all customers will pay any costs to generate the report, the reports will be
available via the utility website and high aggregation thresholds will be maintained. However,
the Commission clearly does not want to impose costs without benefit. The adopted rules
incorporate the Community Energy Report in a way that balances the resulting costs and benefits
based upon size of utility and community desire for the information.
95.
Several requests for comment failed to yield cost information for implementation
or certainty of criteria. A few utilities also comment that they have not received any requests for
information comparable to the Community Energy Report.
Comment suggests that larger
communities are more likely to have staff interested and focused upon energy usage information;
however, the benefit is not limited to larger communities. Therefore, an opt-in form of notice
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will be available to smaller communities or those where a minority of customers are served. 3
With one request, smaller communities desiring information will be able to obtain the same
information as any other sized community. This approach will more likely align costs with
actual demand and provide local governments with access to comprehensive information. Local
governments may request complex or time consuming reports under other provisions of the rule
and these reports can be made available consistent with cost causation principles.
96.
A Community Energy Report stakeholder group comprised of local government staff
from the City and County of Denver, Boulder County, and the cities of Arvada, Aurora, Boulder,
Golden, Lafayette, Lakewood, and Westminster, and staff from Public Service Company of Colorado
filed joint comments with a proposed form of report and data points. The adopted rules are intended
to implement those joint comments.
I.
Property Owner Access to Data
97.
Many commenters address applicability of the 15/15 aggregation standard
(15/15 rule) to whole building aggregate electric or natural gas data for benchmarking purposes.
98.
The minimum aggregation standard should be set at a level that reasonably
protects individual customers from being re-identified, or having their unique customer data
identified, when that data is included in an aggregated data set. Public Service believes that
obtaining the individual consent of fifteen customers or fewer represents a manageable burden
for the data requestor.
99.
Denver disagrees with Public Service’s comments that obtaining the individual
consent of fifteen customers or fewer represents a manageable burden for the data requestor.
3
Some comment assumed that the opt-in notice was intended to be an annual requirement. That is not the
case. A community desiring the report is more likely to be interested in continuing availability and can always
communicate a desire to stop receiving future reports. The contemplated approach was intended to avoid
communities receiving annual reports of data that they did not desire.
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Denver estimates that there are around 1,250 buildings just in the City of Denver with between
5 and 14 tenants. To avoid the burden of obtaining customer consent, Denver requests adoption
of the standard already adopted in by utilities in Washington State and New York State: titled
“2/null.” This would allow property owners to obtain monthly whole building energy use data
from the utility when there are at least two separate accounts aggregated.
100.
Rather than defining new stakeholder category definitions, Denver proposes
different primary and secondary “intentions” in requesting customer data. Second, allow eligible
third parties to submit a non-disclosure agreement stating that the party will not re-identify
individual customer data.
With an approved primary purpose and signed non-disclosure
agreement, aggregate data requests would be subject to higher aggregation standard.
101.
Denver also contends that property owners and managers have a unique interest
from other third parties because they have a vested interest in energy data for their buildings in
order to keep operation expenses low. As such, Denver contends they should be differentiated
from vendors and marketers.
102.
Denver supports modification of the 15/15 rule to permit broader benchmarking
of buildings having 15 tenants or less. After surveying aggregation standards across the country,
Denver recommends an aggregation standard of 4/80, which is consistent with Austin Energy’s
policy which specifies that data can be aggregated for commercial tenant-occupied buildings
with four or more separate utility customers; for buildings with three or fewer customers,
individual data release forms would be required. Tenant authorization is also required if any
single customer in the building uses 80 percent or more of the building’s total energy usage per
annum.
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103.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Several other utilities, including Consolidated Edison, Commonwealth Edison,
Pepco, Seattle City Light, and Puget Sound Energy (PSE) have independently landed on
thresholds of two to five utility meters for data aggregation. Commonwealth Edison will also
automatically release aggregated data if there are more than three meters in the building and has
individually worked with customers that want more access. PSE will release whole-building data
without tenant authorization if five or more meters have been aggregated together.
104.
The U.S. Government also has adopted aggregation standards for the release of
sensitive survey information. The Census Bureau and Department of Agriculture aggregate data
from three individuals before releasing data. In addition, no one individual or cell can account
for more than 50% and 60% of the total value in the aggregated data set, respectively.
In the Commission’s parlance, this is equivalent to a “3/50” or “3/60” aggregation standard.
105.
The 4/80 standard is also consistent with recommendations made by the City of
Minneapolis through the Minnesota PUC Customer Energy Usage Data (CEUD) Workgroup.
This standard has been found to protect customer privacy, while also making it easier to
benchmark buildings.
106.
Some comment suggests that requests for aggregated annual data, or city- or
county-wide, would be required to include at least three customers and no one customer could
comprise more than 80% of the aggregation: a “3/80 Rule.” A threshold of 3/80 was selected
based on a review of best practices by state and federal agencies that provide public data sets.
107.
The Institute for Market Transformation, Natural Resources Defense Council, and
Southwest Energy Efficiency Project (collectively the Institute group) comment that property
owner interests justify differing treatment under Commission rule. Property owners can best
pursue energy efficiency projects when they understand the energy used in their building.
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Owners have an economic interest in their building, are uniquely positioned to identify and seize
efficiency opportunities, and are positioned to agree to terms and conditions of use of data – such
as non-disclosure (comparable to contracted agents).
108.
The City of Boulder points to city incentives or regulations requiring
benchmarking of buildings, including energy efficiency standards as a condition to obtain a
rental license. The City also suggests that an analysis of the risk to customers from energy
consumption data on a yearly level, or certain other anonymized energy data sets, in light of
resulting benefits warrants lowering the 15/15 aggregation threshold.
109.
The City of Boulder supports Denver comments regarding property owner access
and highlights what it calls a “split incentive.” Tenants frequently pay utility bills, but are unable
to install major energy efficiency measures. Builders are capable of installing such measures,
but do not have the financial incentive to do so. Boulder contends that property owner’s access
to aggregated whole building data facilitates benchmarking and promotes energy efficiency,
ultimately benefitting tenants.
110.
By Decision No. R14-0759-I, the undersigned specifically invited additional
comment regarding several topics.
In supplemental comments, Black Hills points out that
property owners are not the utility’s customer of record and have no right to customer data.
Rather, access should be a matter of contract between the property owners (i.e. lessor) and the
utility customer (i.e. the tenant). The Institute group points to economic interest, access to
efficiency opportunities, and non-disclosure protections warranting unique treatment and a lower
aggregation threshold. It is argued that property owners could be required to agree to terms and
conditions as a pre-condition to the utility providing whole building energy usage data,
comparable to contracted agents.
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111.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Rocky Mountain Trane comments in support of property owner access to whole-
building energy usage data and provided an illustration of its use of the type of information at
issue.
112.
The undersigned is persuaded that the unique interests of property owners warrant
relief. Comment suggests that benchmarking buildings is a primary issue necessitating property
owner access to customer data. Further, it is suggested that whole building data on a monthly
basis is adequate for that purpose. In order for a property owner to benchmark a building in
Portfolio Manager, the owner must have 12 months of energy use data for the whole building.
Releasing a lower threshold of aggregated data covering not less granular than monthly data to
permit benchmarking can be balanced with customer interests.
113.
Notably, property owners already handle sensitive tenant-specific information
and, in most counties, ownership can easily be independently verified through county records
available on the Internet. In light of the owner interests, the relationship with tenants, and the
nature of information managed, the risks of granting property owners some additional access to
aggregated data is reasonable.
114.
Property owner access to whole building data, subject to protections, furthers the
interests of the Commission and other governmental entities. Just as contracted agents must
agree to protections as a condition of receiving customer data from the utility, property owners
will also be required to agree to terms and conditions as a condition to the utility providing
whole building energy usage data.
115.
Despite solicitation of comments, no clear standard emerged for how to measure
“whole building” data. It was commented that multiple buildings might be found on a real estate
parcel or that multiple meters might be found to serve one or more buildings or units.
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Based upon cost-causation principles as well as the lack of a standard emerging, no standard
property owner report will be incorporated in rule. Rather, availability of non-standard reports
with a lower aggregation threshold will be required to be conditionally available to property
owners.
116.
Property owner obligations undertaken to access customer data, the scope of
information available, and the unique interest of property owners, warrant a lesser aggregation
standard than generally applicable. Extensive comments argue based upon various standards
applied in various settings across the United States. The rule adopts a 4/50 aggregation standard
for property owner whole building energy use data as being within a range of reasonableness in
heavy reliance upon the protections undertaken by property owners.
117.
The rule narrows the scope of property owners that will be required to obtain
customer consent to obtain whole building data. To the extent the aggregation standard is not
met, customer consent will still be required.
118.
The undersigned remains concerned with the burden (and resulting costs) for
utilities to verify and qualify property owners requesting data. The adopted process requires
direct involvement of the property owner (i.e. as opposed to a property manager) so that utilities
and the Commission will be able to most efficiently rely upon public real estate records as a
primary source to verify authenticity of requests. There is no comparable publicly-available
means to verify then-current property managers or other theoretical designees.
As direct
beneficiaries of the expanded access adopted in rule, it is appropriate that property owners
minimize the administrative burdens imposed upon others.
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J.
Aggregated Data Standard
119.
New rules are adopted to change aggregation thresholds for specific property
owner access and community energy reports. No substantive modifications are adopted for the
current general rule regarding data aggregation.
120.
Comment suggests that different standards are appropriate for the release of
aggregated data based on large areas or a longer timeframe because the risks that are generally
identified from energy data have to do with identifying private activities in the home or
proprietary business practices that are time-sensitive. Comment requests that some flexibility be
incorporated for other types of data requests: such as frequency data, averages, or anonymized
data.
121.
Public Service objects to proposals in comment to lower aggregation thresholds
allowing disclosure based upon purpose or terms of confidentiality.
Public Service sites
customer concerns about unauthorized data sharing and contends that proposals would
compromise the privacy or confidentiality expectations of an unacceptably large portion of their
customer base. Public Service also raises administrative concerns based upon limiting the
purpose of a request.
122.
Regarding the current 15/15 standard that is generally applicable, Public Service
suggests two alternatives:
(1) authorize a statistical study to be conducted by an independent organization to
determine an appropriate level for setting minimum aggregation standards; or
(2) maintain the current 15/15 standard, recognizing that it represents an
appropriate balance between the burden on data requestors and customer
autonomy.
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123.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Providing access to communities and property owners is responsive to these
comments in part. As to the remainder affected, the existing rule has not been shown adequate to
protect interests concerned and no showing warrants modification.
K.
Regulated Electric Utility Rule Violations, Civil Enforcement,
124.
Public Service objects to increased penalties in the electric rules without any basis
being been shown for the increase. The undersigned notes that a review of the Commission’s file
indicates that the notice to the General Assembly of Proposed Rule to Increase Fees or Fines
Required Pursuant to § 24-4-103(3)(a.5), C.R.S. does not address the one modification indicated
in the NOPR. The modified penalties proposed to the electric rules in the NOPR will not be
adopted.
L.
Ombudsman
125.
Boulder has found difficulties implementing the prior rules and states that a
lack of clarity in the rules has thwarted appropriate and necessary access to data.
Boulder respectfully requests the Commission appoint a designated staff person to be a resource
for local governments making data requests from utilities. This person would act as essentially
an ombudsman to help local governments understand and comply with the Data Access and
Privacy Rules, and to ensure that their requests receive responses.
126.
WRA is aware of many disputes concerning data access under these rules
experienced by non-commercial entities, such as local governments, water utilities, or state
government agencies. WRA believes the existence of a Commission-appointed ombudsman
could assist in the resolution of these disputes in a more efficient manner, without the time and
expense of formal litigation before the Commission.
Therefore, WRA supports Boulder’s
suggestion that the Commission appoint such an ombudsman. However, WRA recommends the
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assistance of this ombudsman not be limited to only disputes involving local governments.
If the Commission wishes to formalize this position within the rules, WRA suggests it be
included as a new subsection within Boulder’s proposed rule.
127.
Public Service’s comments question the authority of an appointed staff member to
act, and how such an appointment would provide additional assistance to local governments.
Public Service encourages a focus upon standardizing aggregated data reports.
128.
The Commission cannot delegate its authority to an ombudsman. Commission
Staff is envisioned as effectively being an ombudsman without decision-making authority.
Although the undersigned declines to incorporate the explicit process proposed, attention will be
brought to Rule 1007(c) of the Rules of Practice and Procedure, 4 CCR 723-1. The rules
explicitly contemplate Commission Staff as a resource in applying Commission rules.
Additionally, Staff can exercise discretion in implementing the Commission’s rules and make
available forms as a result thereof. Others may then be afforded protection (e.g. in the form of a
presumption) in relying upon Staff in implementing Commission rules. While not official views
of the Commission, nor could an ombudsman be.
129.
The undersigned prefers to rely upon existing informal processes and make the
rules more detailed in this regard. Where informal means fail, other means remain available
through complaint or petition to obtain a definitive resolution.
M.
Data Access
130.
By Decision No. R14-0759-I, the undersigned specifically invited additional
comment to leverage capabilities of installed infrastructure and to make more information
available to customers. Customer rates already include costs of meter infrastructure, some of
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which was designed to accommodate such additional services for customers. However, there is
insufficient comment to generally expand requirements in rule at this point.
131.
Public Service highly recommends the Commission rules not require adoption of
specific technology for data access. If the Commission wishes to support the adoption of a
specific technology, then Public Service asks that costs be recognized and utilities be given
assurances regarding cost recovery.
132.
Black Hills contends that the Commission should not mandate any particular
software system or platform.
The company has invested in the “MyAccount Portal” for
customers to electronically access usage data in a CSV format. It argues implementation of
another solution should not now be required.
1.
133.
Raw Customer Data
Raw customer data generally refers to customer data accessible directly accessible
from the customer’s meter, as opposed to data collected from the meter by the utility and stored
in its systems. Because of perceived issues with meter technology and unspecified security
issues, Public Service believes that there should be no requirement to make raw customer data
available. Public Service comments that access to customer data must be balanced with security
issues for the utility’s system and should not compromise efforts to protect the grid. First, there
is concern about security from tampering to ensure no outside party alters how the meter
operates (guaranteeing the integrity of the data received from the meter). Second, there is
concern regarding security between the customer’s meter and the utility.
134.
Mission:data comments that “[w]here utilities do not provide easily-accessible
usage data in an electronic, standardized format, consumers are missing out on significant
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opportunities to take advantage of the most effective tools to save energy and money available
today.”
2.
135.
Portfolio Manager
Comment
recommends
that
utilities
implement
Portfolio
Manager
“WebServices.” Some utilities have already begun providing aggregate data for third party use
via the Portfolio Manager tool, and expansion would further decrease barriers to benchmarking.
While Denver acknowledges that unspecified initial costs would be borne by the utility to
interface directly with Portfolio Manager, they point out that automatic upload services already
exist through programs such as InfoWise with Xcel Energy. Denver cites studies supporting
broad benefits from data access programs.
136.
Because Green Button currently does not interface with Portfolio Manager,
Denver believes that automatic upload of data (through Portfolio Manager Web Services) will
provide the most benefit in regards to streamlining the benchmarking process for property
owners and managers. Denver proposes that cost recovery for implementing Web Services for
Colorado customers come from the demand side management budget because of the direct
energy savings associated with benchmarking practices.
137.
A copy of the Portfolio Manager® Quick Start Guide was included as Attachment
B to Decision No. R14-1001-I and additional comment was sought about the program among
other things. Little specific information was provided in comment about the Environmental
Protection Agency’s Portfolio Manager.®
3.
138.
Green Button
Green Button refers to two initiatives: Download My Data and Connect My Data.
Public Service implemented Green Button Download My Data, which allows a user to manually
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download their usage data. No other utility in this proceeding has implemented Download My
Data.
139.
Green Button Connect My Data supports ongoing, automatic transmittal of usage
data from the utility without continual customer intervention. Illustratively, a utility might
include a check box option as part of an electronic customer consent process to authorize
ongoing automatic transmittal of usage data. Consistent with other approvals in the rules, the
recipient would continue to receive the customer’s data until the customer revoked that approval.
140.
Denver comments that the rules should permit implementation of Connect My
Data. Further, Denver references Green Button Connect My Data as being consistent with the
July 20, 2011 National Association of Regulatory Utility Commissioners Board of Directors
passage of their “Resolution on Access to Whole-Building Energy Data and Automated
Benchmarking” that encourages State public utility commissions to take all reasonable measures
to facilitate convenient, electronic access to utility energy usage data for property owners.
141.
Public Service cautions that requiring implementation of Green Button Connect
My Data must be evaluated in the context of customer value and cost recovery related
investment and maintenance costs. Public service currently provides Download My Data
functionality through the customer web portal. For Public Service, the attributes associated with
Download My Data required the least amount of custom IT development to implement,
while those associated with Connect My Data required significantly more. An investigation
conducted several years ago found the range of cost to implement the Connect My Data platform
would be $5 million to $10 million.
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Decision No. R15-0406
142.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
CNG does not support any rules that require utilities to offer a Green Button
Download My Data. There is concern that imposing obligations may have unintended adverse
consequences.
143.
Comment maintains that most local government energy efficiency programs
gauge program effectiveness based upon the compilation of individual and aggregated participant
results over time. Customers must currently periodically request a new data download.
144.
Regarding the appropriate cost recovery mechanism for a utility that incorporates
the more robust Connect My Data, Boulder County believes that a cost of implementation
analysis should be done for utilities required to adopt the platform.
145.
WRA agrees with Mission:data that the Green Button Connect functionality is a
form of nationally recognized open standards and best practices as contemplated by the existing
rules, and should be explicitly required or encouraged by these rules. Moreover, Green Button
Connect is a mechanism to provide customers with timely access to information on power
consumption, as proposed in Senate Bill 2165, which was cited in the Commission’s Notice of
Proposed Rulemaking, at footnote 12.
146.
In recognition of comments regarding costs, WRA recommends the Commission
require utilities, before a date certain, to file an application to address how “a customer may
access and/or share his or her own customer data in a consumer-friendly and computer-friendly
format via ‘Green Button Connect’ on the utility’s website.” Thus, relative costs and benefits of
implementing Green Button Connect may be considered for each utility in a detailed and
comprehensive fashion.
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Decision No. R15-0406
4.
147.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Electric Utility Filing Required
Utility investments have yielded the ability to access new or additional customer
data from regulated utility service. Comment indicates that customers and others desire to take
advantage of these capabilities and that utilities have not always provided access to customer
data to meet that demand.
148.
In adopting rules, the Commission balances policy goals with other interests.
The first data privacy rules established standard customer data (benefitting the general body of
ratepayers), and non-standard or aggregated data offerings (left largely to utility implementation
through service offerings based upon capability and cost causation). The rules will now expand
utility requirements to provide access to information.
149.
In addition to considering the burden and benefits of obligations as applied to all
utilities, the Commission is ensuring broader and more consistent access to information.
Where obligations are imposed for the benefit of the general body of ratepayers, or to facilitate
other broad policy efforts, it may be appropriate for costs to be borne by all ratepayers.
However, where obligations are imposed to benefit a specific customers or interests, it may be
appropriate for those costs to be borne by the cost causer or through other means.
To the extent obligations are imposed by rule, an affected utility may seek a waiver or variance
under appropriate circumstances, or seek rate recovery in an appropriate proceeding.
150.
The current state of metering infrastructure did not arise over night. Utilities have
invested in meter infrastructure expanding availability of energy usage information to some or all
of their customers. The associated costs have been included in customer rates. Where those
meters are designed with the capability to provide end-user customer access to raw data,
theoretical undemonstrated risks argued fail to overcome the equity of customers leveraging
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Decision No. R15-0406
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maximum benefit of such meter information. It would also seem that risks can be managed and
mitigated through terms of access, proper management, and perhaps otherwise, based upon
surrounding facts and circumstances.
151.
The rules attempt to accommodate expansion of customer data access.
However, the lack of specific information, costs, and benefits about specific forms of access
necessitates
development
elsewhere
based
each
utility’s
facts
and
circumstances.
The general approach advocated by WRA will be adopted. Electric utilities will be required to
file an appropriate application or advice letter filing on or before October 1, 2015, addressing
whether and how a customer may access and/or share his or her own customer data, both raw and
utility maintained, in a consumer-friendly and computer-friendly way.
152.
The proceeding contemplated will allow the Commission to assess the relative
costs and benefits of implementing raw data access, the Environmental Protection Agency’s
Portfolio Manager,® Green Button Download My Data, Green Button Connect My Data, or
other “nationally recognized open standards and best practices” for each subject utility.
5.
153.
Multiple Overlapping Requests
Public Service has rejected Aggregated Data report requests that target a group of
specific individual customers, which in combination with other less granular Aggregated Data
reports may reveal individual Customer Data (e.g. based on a list of specific customer
addresses). Public Service encourages the Commission to take a similar approach by making it
explicit that such requests are prohibited.
154.
Denver contends that local governments require overlapping data requests in
order to track changes in energy use over time. Denver proposes a possible solution to address
Public Service’s concern would be to allow overlapping data requests for specific local
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government programs in which the jurisdiction makes a commitment not to re-identify individual
customer data.
155.
Boulder contends that the standard Public Service is proposing is too vague and
the Commission should not outright prohibit local governments from making multiple requests
from data that may overlap. Rather, Boulder focuses upon nondisclosure protections and
supports the FTC “contractually prohibit[] downstream recipients from trying to re-identify the
data.”
156.
Boulder also points to the Health Statistics and Evaluation Branch of the Colorado
Department of Public Health & Environment as a possible source as to how other state agencies
deal with data requests.
157.
CDPHE responsibilities differ dramatically from public utilities and the
Commission. CDPHE provides “public health data to the public, researchers, academicians,
other state and federal agencies, and community and faith based organizations in order to
enhance the ability of these parties to protect and enhance the public’s health.”
CDPHE comments at 1.
158.
Despite differing responsibilities, comment explains that data sets are managed
addressing and balancing interests consistent with applicable and differing, state and federal
statutory requirements. A copy of CPDHE’s Data Privacy and Security Policy was provided as
well as the Health Statistics and Evaluation Branch’s Data Release Agreement used to address
custom requests is included in comment.
159.
CDPHE costs to provide responses to data requests are recovered based on actual
staff time required to complete the request. “Whereas there are no conclusive scientific standards
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for data release related to statistical validity, industry standards, where established, are used.”
Comments at 1.
160.
Public Service opposes the proposals to incorporate NDA requirements as a
condition of disclosure as proposed. Validation and verification are pointed to as sources of
concern and burden. Further, Public Service contends they are not in a position to police such
arrangements to ensure that the signer has not breached his or her obligations under the nondisclosure agreement.
161.
Aspects of comments in this area have been addressed and incorporated in the
adoption of local government and property owner exceptions to the requirements to obtain
customer consent for the disclosure of customer data. In large part, comment provided fails to
demonstrate a solution to overlapping data requests. Particularly in wanting to error on the side
of protecting customer data from unintended or unauthorized disclosure, and in light of the
availability of Community Energy Reports and audit information for local governments, the
utility will continue operating largely under existing rule. Where differences remain, other
means are available through complaint or petition to obtain a definitive resolution.
N.
Tiering of Utilities.
162.
As the focus of this proceeding evolved from electric to natural gas, oral and
written comment raised concern as to implementation and compliance costs for proposed
concepts and little or non-existent demands for information, especially among the smaller
utilities. Addressing these concerns, a tiering of electric and gas utilities is adopted.
163.
Durango Mountain Utilities first suggested that the Commission define a smaller
category of utility for the purpose of exempting such utilities from obligations proposed for
larger utilities. DMU suggests that, based on the number of meters served, there should be a
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bright-line threshold below which the Commission finds that the costs of compliance outweigh
the benefits.
164.
CNG raises similar concern about placing the onus on a utility having little
understanding of the burdens imposed without the benefit of a cost-benefit analysis.
CNG proposes that natural gas customers may be better served by requiring third parties to
petition or apply for aggregated data from natural gas utilities.
165.
SourceGas Distribution and Rocky Mountain contend that expanded requirements
generally should not apply to them because requests for aggregated data reports have come from
entities not in the Companies’ service territories, have focused exclusively on electric-related
data, and have been directed at the largest utilities in the State of Colorado that serve the most
urban and heavily suburban areas. Neither SourceGas Distribution nor Rocky Mountain has
received requests for aggregated data reports. The companies also question whether the 15/15 is
appropriate when applied to a utility of their size.
166.
Utility service offerings clearly and reasonably vary based upon scale and scope.
The same cost can be perceived as minor to a large utility and burdensome to a small utility.
The Commission now seeks to expand service offerings where appropriate, without imposing
undue burden.
167.
First, the undersigned will note as to all rules that a person may seek a waiver of a
rule that proves burdensome in a particular circumstance. That said, the undersigned agrees with
comment that some bright lines are appropriate for adoption in rule and to mitigate need to
request waivers or variances.
168.
In supplemental comments, Black Hills agrees that addressing data aggregation
obligations for utilities in terms of size is meritorious. While the vast majority of requests are
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Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
directed to the largest natural gas and electric utility in Colorado, these rules are generally
applicable to all gas and electric utilities. Recognition of available resources and imposing
burdens without regard to customer impact warrant further consideration.
169.
The smallest utilities, where no unmet demand for information has been shown,
will be obligated to protect customer information, with little additional burden to expand
standard customer data offerings. On the other end of the spectrum, Public Service does not
oppose implementing or expanding some service offerings and some new obligations will be
imposed. The potential benefits of the expanded offerings further Commission policy across a
much larger population that also provides a larger base for cost recovery. A middle tier of utility
will be defined to balance the concerns on both ends of this spectrum. Where minimal or lesser
costs are justifiable based upon a smaller customer base, additional benefits are
reasonably achievable. As such, the proposed rules attempt to expand the information available
while being very mindful of costs imposed.
170.
Comment was solicited for criteria or thresholds to define the proposed tiers.
All comment supported adoption of tiers based upon number of customers, rather than levels of
demand for particular information. The number of customers will be utilized as the better
measure for tiers.
III.
ADAPTATION OR APPLICABILITY UNIQUELY TO GAS RULES
171.
Throughout the proceeding, concerns raised have been considered in the context
of the scope of the proceeding (e.g. applicability to gas and electric utilities). CNG comments in
one aspect uniquely applicable to natural gas utilities. In the definition of standard customer
data, concern is raised that the phrase “network technology” should be deleted because network
technology, such as advanced metering infrastructure, is a concept applicable to service provided
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Decision No. R15-0406
by
electric
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
utilities
but
not
to
service
provided
by
gas
utilities.
The phrase causing concern has been eliminated from the rule.
IV.
CONCLUSIONS
172.
Attachments A and C to this Recommended Decision represents the electric and
gas rule amendments adopted by this Decision with modifications to the prior rules being
indicated in redline and strikeout format (including modifications in accordance with this
Recommended Decision).
173.
Attachment B and D to this Recommended Decision represents the electric and
gas rule amendments adopted by this Decision in final form.
174.
It is found and concluded that the proposed rules as modified by this
Recommended Decision are reasonable and should be adopted.
175.
Pursuant to the provisions of § 40-6-109, C.R.S., it is recommended that the
Commission adopt the attached rules.
V.
ORDER
A.
The Commission Orders That:
1.
The Rules Regulating Electric Utilities, 4 Code of Colorado Regulations 723-3,
contained in redline and strikeout format attached to this Recommended Decision as
Attachment A, and in final format attached as Attachment C, are adopted.
2.
The Rules Regulating Gas Utilities and Pipeline Operators, 4 Code of Colorado
Regulations 723-4, contained in redline and strikeout format attached to this Recommended
Decision as Attachment B, and in final format attached as Attachment D, are adopted.
3.
On or before October 1, 2015, all electric utilities must file an appropriate
application or advice letter addressing whether and how their respective customers may access
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Before the Public Utilities Commission of the State of Colorado
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Decision No. R15-0406
and/or share his or her own customer data, both raw and utility maintained, in a consumer-friendly
and computer-friendly way.
4.
The Consent to Disclose Utility Customer Data attached hereto as Attachment E
complies with the rules adopted by this Recommended Decision. Staff of the Commission shall
maintain the form consistent with the Recommended Decision and make it available from the
Commission’s website.
5.
This Recommended Decision shall be effective on the day it becomes the
Decision of the Commission, if that is the case, and is entered as of the date above.
6.
As provided by § 40-6-109, C.R.S., copies of this Recommended Decision shall
be served upon the parties, who may file exceptions to it.
a)
If no exceptions are filed within 20 days after service or within any
extended period of time authorized, or unless the decision is stayed by the Commission
upon its own motion, the recommended decision shall become the decision of the
Commission and subject to the provisions of § 40-6-114, C.R.S.
b)
If a party seeks to amend, modify, annul, or reverse basic findings of fact
in its exceptions, that party must request and pay for a transcript to be filed, or the parties
may stipulate to portions of the transcript according to the procedure stated in § 40-6-113,
C.R.S. If no transcript or stipulation is filed, the Commission is bound by the facts set
out by the administrative law judge and the parties cannot challenge these facts. This will
limit what the Commission can review if exceptions are filed.
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Decision No. R15-0406
7.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
If exceptions to this Decision are filed, they shall not exceed 30 pages in length,
unless the Commission for good cause shown permits this limit to be exceeded.
(S E A L)
THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
G. HARRIS ADAMS
________________________________
Administrative Law Judge
ATTEST: A TRUE COPY
Doug Dean,
Director
47
Decision No. C15-0752
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO
PROCEEDING NO. 14R-0394EG
IN THE MATTER OF THE PROPOSED RULES RELATING TO DATA ACCESS AND
PRIVACY FOR ELECTRIC UTILITIES, 4 CODE OF COLORADO REGULATIONS 723-3
AND DATA ACCESS AND PRIVACY RULES FOR GAS UTILITIES, 4 CODE OF
COLORADO REGULATIONS 723-4.
DECISION ADDRESSING EXCEPTIONS,
AMENDING DATA ACCESS AND PRIVACY RULES
FOR ELECTRIC UTILITIES, AND
ADOPTING DATA ACCESS AND PRIVACY RULES
FOR GAS UTILITIES
Mailed Date:
Adopted Date:
July 23, 2015
July 8, 16, 2015
TABLE OF CONTENTS
I.
BY THE COMMISSION .........................................................................................................2
A. Statement ...........................................................................................................................2
B. Background and Discussion of Recommended Decision ..................................................2
C. Exceptions to Rules ...........................................................................................................4
1.
Rule 3001 - Definitions ..............................................................................................4
a.
Rule 3001(j) – Customer Data ............................................................................4
b.
Rule 3001(aa) – Property Owner ........................................................................5
c.
Rule 3001(mm) – Unique Identifier ....................................................................6
2.
Rule 3028 - Customer Notice .....................................................................................8
3.
Rule 3031 – Local Government Access to Customer Data ........................................8
4.
Rule 3032 – Third Party Access to Customer Data .................................................10
5.
Rule 3033 – Aggregated Data Reports .....................................................................10
6.
Rule 3034 – Whole Building Data ...........................................................................12
7.
Rule 3035 – Community Energy Reports ................................................................13
D. Changes for Consistency and Clarity ..............................................................................15
II. ORDER ...................................................................................................................................15
Decision No. C15-0752
I.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
BY THE COMMISSION
A.
Statement
1.
This Decision addresses exceptions to the Recommended Decision 1 amending the
Data Access and Privacy rules for electric utilities at 4 Code of Colorado Regulations (CCR)
723-4-3025 through 3035 (Electric Data Rules) and adopting Data Access and Privacy Rules for
the Commission’s Rules Regulating Gas Utilities and Pipeline Operators, 4 Code of Colorado
Regulations (CCR) 723-4-4025 thought 4035 (Gas Data Rules).
Exceptions were filed by
Public Service Company of Colorado (Public Service or Company), the City of Westminster
(Westminster), the City and County of Denver (Denver), the City of Boulder (Boulder), and the
Colorado Communications and Utility Alliance (CCUA).
2.
By this decision, we adopt the Recommended Decision, with limited modification
to the Electric Data Rules and Gas Data Rules. We grant, in part, and deny, in part, exceptions
filed by Public Service and Westminster; we deny exceptions filed by Denver, Boulder, and
CCUA. On our own motion we amend the Gas Data Rules to ensure consistency with the
Electric Data Rules, including our determinations on exceptions. We also make typographical
correction and revisions for consistency and clarity in the adopted rules attached to this decision.
B.
Background and Discussion of Recommended Decision
3.
On May 6, 2014, the Commission Issued the Notice of Proposed Rulemaking
(Data Access and Privacy NOPR) to simplify processes and to make more efficient its rules on
access to and privacy of customer data in the possession of utilities in the Electric Data Rules. 2
1
Decision No. R15-0406, issued May 1, 2015 (Recommended Decision).
The NOPR built on stakeholder input received in Proceeding No. 13M-1052EG, in which we directed
Staff of the Commission to hold workshops and to work with interested persons to determine the scope of changes to
the data privacy rules in place at the time.
2
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The Data Access and Privacy NOPR also proposed amending the Commission’s Gas Data Rules
to introduce similar data access and privacy rules for gas utilities.
4.
During the course of this proceeding Administrative Law Judge (ALJ)
Harris Adams held four hearings and issued multiple drafts of proposed rule changes, providing
extensive opportunities for stakeholders, including industry, local governments, public interest
groups, individual customer, and small business representatives, 3 to review and comment on
proposed modifications to the electric and gas data rules. Many of the comments proposed by
the participants are adopted in the final rules.
5.
On May 1, 2015, the ALJ issued his Recommended Decision amending the
Electric Data Rules governing privacy of and access to customer data for regulated electric
utilities. The Recommended Decision also adopts Gas Data Rules protecting customer data and
specifying conditions for interested persons to access customer data from regulated gas utilities.
The Gas Data Rules are consistent, to the extent practicable, with the Electric Data Rules.
The rules proposed in the Recommended Decision protect customer information by balancing the
interest of respecting customer privacy with the interest of allowing governmental entities and
certain third parties to have access to meter data upon informed consent. 4
6.
Exceptions to the Recommended Decision were timely filed by: Public Service,
Westminster, Denver, Boulder, and CCUA.
7.
The Commission deliberated on the exceptions at the Commissioner’s Weekly
Meeting of July 8, 2015. We completed our deliberation at the Commissioner’s Weekly Meeting
of July 16, 2015.
3
4
See Recommended Decision, at ¶ 2
Decision No. C14-0461, issued May 6, 2014 (Data Access and Privacy NOPR), at ¶¶ 6-8.
3
Decision No. C15-0752
8.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
We concur with the ALJ’s determination that the Commission’s rules on data
privacy and access maintain the existing commitment to the privacy and protection of individual
customer data. 5 We also support the ALJ’s conclusion that new technologies provide utilities and
their customers with energy use information and find that the adopted rules strike an appropriate
balance between protecting customer privacy and allowing customers to effectively access this
information. Consistent with the intent of the NOPR, the rules adopted by the ALJ clarify and
simplify the process for customers to provide informed consent for third parties to access data
and for utilities to provide aggregated data reports that make access to new types of data
available. The limited revisions we make on our own motion to the Gas and Electric Data Rules
are consistent with the intent of protecting customer privacy while allowing broader and more
consistent access to information as stated in both the Data Access and Privacy NOPR and
Recommended Decision.
C.
Exceptions to Rules
1.
Rule 3001 - Definitions
a.
9.
Rule 3001(j) – Customer Data
The ALJ defines customer data in Rule 3001(j)6 with the following revisions:
“Customer data” means customer- specific data or information, excluding personal
information as defined in paragraph 1004(x), that: (1) is:
(I)
collected from the electric meter by the utility and stored in its data systems
(e.g., kWh, kW, voltage, VARs and power factor); (2) is received by or
(II)
combined with customer-specific energy usage information on bills issued to the
utility from customer for regulated utility service when not publicly or lawfully available
to the customer identifying whether they participate general public; or
5
6
See Data Access and Privacy NOPR, at ¶¶ 8-9.
Rules proposed in the Recommended Decision are referenced in this decision as “Rule XXXX” for
brevity.
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PROCEEDING NO. 14R-0394EG
(III) about the customer’s participation in regulated utility programs, such as
renewable energy, demand-side management, load management, and or energy
efficiency; and (3) information other than personal information that is shown on bills
issued to customers for metered service furnished. programs.
10.
In its exceptions, Westminster argues that the ALJ intended the phrase, "when not
publicly or lawfully available" to modify all customer specific data or information, and not just
customer information combined with information on a customer’s bill under Rule 3001(j)(II).
11.
The rule adopted in the Recommended Decision provides three distinct conditions
under which information about a customer is customer data. Westminster misinterprets the
judge’s decision at paragraphs 22 through 35. At paragraph 35, the ALJ purposefully correlates
“when not publicly or lawfully available” to customer information appearing on bills only,
as identified in Rule 3001(j)(II). Specifically, the ALJ states “[c]ustomer specific information
that is not publicly available and appears on the customer’s bill will remain customer data.” 7
Westminster is incorrect that the ALJ intended “when not publicly or lawfully available” to apply
to all three categories of customer data. We agree with the ALJ that the phrase “when not
publicly or lawfully available” should apply only to customer bill information identified in
Rule 3001(j)(II). The proposed language is clear that certain customer specific information
contained on a bill is not customer data if it is publically available from another source.
12.
We deny Westminster’s exception and affirm the definition of Customer Data in
the Recommended Decision.
b.
13.
Rule 3001(aa) – Property Owner
Denver recommends the Commission revise the definition of “property owner” to
include the term “authorized agent.” Denver states that owners of large, multi-tenant buildings
7
Recommended Decision, at ¶ 35 (emphasis added).
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Decision No. C15-0752
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often contract with property management companies to manage buildings on their behalf.
According to Denver, property managers are often authorized agents on the property owner’s
utility account and therefore should have access to the whole building data report for the purpose
of benchmarking the building’s energy use.
14.
In its exceptions to Rule 3034, Public Service also observes that multi-tenant
buildings are often managed by agents other than the property owner. Public Service states that
in its experience those property managers are often authorized agents on the property owner’s
utility account and therefore it would not present a burden to verify those managers or agents.
The Company proposes adding the term “authorized agent” to Rule 3034 instead of changing the
definition of property owner.
15.
Denver’s exception to the definition of “Property Owner” is denied; we do not
agree that the definition of a property owner should include both the property owner and its
authorized agent. However, we agree with Denver and Public Service that an authorized agent of
a property owner should have access to whole building data, consistent with Commission rules.
We therefore revise Rule 3034 as requested by Public Service and as further discussed below.
c.
16.
Rule 3001(mm) – Unique Identifier
Westminster argues that the ALJ’s use of “including” in the definition of unique
identifier makes it unclear if the list of unique identifiers is exhaustive, or if the ALJ intended
additional items that may be displayed on a customer’s utility bill to be included.
Westminster suggests the Commission clarify this definition and specify whether the listed items
on a customer’s bill are an exhaustive or non-exhaustive list.
17.
Westminster’s exception is granted, in part. We find that additional clarity about
what items uniquely identify a customer will help utilities and those seeking access to customer
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data better understand what information is protected.
On our own motion we revise the
definition of unique identifier to specify that only the items listed within the definition are
“unique identifiers” for purposes of the Electric Data Rules. 8
18.
Further, we revise the definition of “Aggregated data” and replace the term
“customer-identifying information” with “unique identifier.” This revision makes the rule for
aggregated data reports 9 more clear and consistent with the intent of protecting customer
information by specifying which items on a customer’s electric bill, in addition to personal
information, 10 are excluded from release in an aggregated data report. 11
d.
19.
Rule 3001(jj) – Third Party
The rules adopted by the ALJ define a third party as “a person who is not the
customer, an agent of the customer who has been designated by the customer with the utility and
is acting on the customer’s behalf, a regulated utility serving the customer, or a contracted agent
of the utility.” 12
20.
Public Service suggests that the placement of the word “not” in the definition
makes it unclear exactly which entity is a third party. The Company proposes the Commission
adopt one of two different suggestions to clarify the definition.
21.
The adopted definition specifies that each of the listed entities is not a third party.
A third party is anyone other than these entities who is seeking access to customer data.
8
These items on a customer’s bill are: a customer’s name, mailing address, telephone number, and email
address.
9
Rule 3033
Personal information is defined by Rule 1004(x) of the Commission’s Rules of Practice and Procedure,
4 CCR 723-1.
11
Rule 3033 already prohibits a utility from disclosing personal information as defined in Rule 1004(x).
12
Rule 3001(jj)(emphasis added).
10
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Public Service’s exception is denied. On our own motion we make a minor structural revision to
clarify the definition.
2.
22.
Rule 3028 - Customer Notice
Public Service argues that the requirement to charge customers for a translation of
the customer notice in Rule 3028 is inconsistent with the discretion the proposed data rules give
to the Company in deciding whether to charge a customer for the translation of the Customer
Consent Form. 13 Further, the Company suggests that it may be less costly to customers not to
bill the person requesting the translation. Public Service recommends the Commission modify
the proposed rule to provide discretion to utilities on whether to charge a fee for a translation.
23.
We affirm the ALJ’s determination that the cost of translating these documents is
part of basic utility service and should be recovered as are other costs to inform customers of
rights or obligations. 14 The modification to Rule 3028 suggested by Public Service is consistent
with the ALJ’s approach of providing utilities with flexibility to decide how best to recover the
cost for translating forms. We grant the exception and revise the rule.
3.
24.
Rule 3031 – Local Government Access to Customer Data
Boulder, CCUA, and Westminster filed exceptions to Rule 3031 proposed by the
ALJ. Public Service filed replies to these exceptions.
25.
Boulder requests the Commission amend Rule 3031 to allow utilities to disclose
to local governments customer data that the government deems necessary for auditing certain tax
payments by utilities. Boulder states that this change is necessary because it currently has
no franchise agreement with Public Service but that the Company passes through to Boulder a
13
14
Rules 3029 (g)
See paragraph 74 and footnote 1 of Decision No. R15-0406
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utility occupation tax. Boulder contends that the occupation tax is equivalent to a franchise fee
and therefore should receive the same treatment under the rules.
26.
CCUA argues requiring the non-disclosure agreement to “at a minimum” comply
with the rule presents the potential for a utility to place additional requirements through the
nondisclosure agreement on local governments requesting data pursuant to Rule 3031. CCUA
further states that any additional terms required by the utility would likely result in local
governments not receiving timely access to data. Therefore, CCUA requests the Commission
remove the phrase “at a minimum” from Rule 3031.
27.
Westminster states that it supports the adoption of a rule clarifying the rights of
local governments to receive access to customer data, but that it concurs with the concerns about
the nondisclosure agreement raised by CCUA.
28.
In its response, Public Service recommends the Commission reject the arguments
by Boulder, Westminster, and CCUA. The Company argues that tax audits are addressed in
separate statutes and ordinances and that protection of privacy interests pursuant to information
sought under those statutes is established there.
29.
The Recommended Decision makes clear that the Commission is not attempting
to limit or address local government jurisdiction. Public Service correctly observes that local
governments have existing authority to tax. Moreover, the arguments presented on exceptions to
include fees or taxes in Rule 3031 were considered and rejected by the ALJ.
30.
We agree with the ALJ and uphold the Recommended Decision. The adopted
rules strikes the right balance between meeting a demonstrated need for a rule to ensure local
governments’ ability to audit franchise fee payments and local governments’ desires to access
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customer data for other purposes. 15 In addition, the rule states a minimum condition of the
required nondisclosure agreement, which preserves customers’ privacy rights consistent with the
Commission’s intentions. A local government can seek relief before the Commission if it
believes that a utility is not complying with Rule 3031 or that the terms of an NDA are onerous.
31.
The exceptions filed by Boulder, CCUA, and Westminster requesting revision to
Rule 3031 are denied.
4.
32.
Rule 3032 – Third Party Access to Customer Data
Rule 3032(a) requires that a utility shall not disclose customer data without
informed consent. Westminster suggests the Commission add Rule 3035, the rule governing
community energy reports, to the list of exemptions provided in Rule 3032(a).
33.
The community energy report in Rule 3035 provides only aggregated data, and
this aggregated data may be disclosed pursuant to Commission rule. While Rule 3032(a)
generally requires informed consent, it also allows disclosure pursuant to Rule 3027(b). Rule
3027(b) allows disclosure so long as “such disclosure conforms to these rules….” No change to
the rule is necessary and Westminster’s exception regarding Rule 3032 is denied; however
we clarify that no customer consent form is required for reports that conform with Rule 3035.
5.
34.
Rule 3033 – Aggregated Data Reports
Public Service states two exceptions to Rule 3033 adopted by the ALJ.
First, The Company notes the rule adds the requirement that “the recipient is authorized to
receive all customer data within the aggregated data.”
Public Service opines that this
requirement is unnecessary because, by definition, aggregated data does not contain any personal
information or individually identifiable customer information.
15
See Decision No. R15-0406 at paragraph 88.
10
Public Service therefore
Decision No. C15-0752
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
recommends deleting the phrase “the recipient is authorized to receive all customer data within
the aggregated data.”
35.
There is no customer-specific information within an aggregated data report.
However, the language in the proposed rule specifies that a recipient of aggregated data is
permitted to receive all of the data in the report 16 and affords necessary protections to customers.
We affirm the rule as proposed in the Recommended Decision and deny Public Service’s
exception.
36.
Public Service also suggests the Commission change the requirement in 3033(g)
that a utility shall not provide overlapping aggregated customer data reports that have the
potential to identify customer data to instead be permissive. The Company argues that the
requirement not to allow re-identification of customer data in conjunction with the word
“potential” in the rule requires the utility to determine the likelihood of disclosure of customer
data from overlapping request for data and therefore may expose the utility to liability when
responding to such requests. The Company states that it likely would deny overlapping data
requests unless its relief is granted.
37.
We maintain our interest in ensuring a utility protect customer information in its
possession. The ALJ carefully considered balancing protections of personal privacy with interest
in accessing information. A utility shall not disclose aggregated data that could potentially
identify individual customer information. The ALJ was correct in placing the onus on the utility
to determine whether disclosure of data in response to multiple, over-lapping requests may
identify a customer.
38.
16
We deny Public Service’s exceptions to Rule 3033.
Reports include those available pursuant to rules 3033, 3031, 3034, or 3035.
11
Decision No. C15-0752
6.
39.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
Rule 3034 – Whole Building Data
Public Service states that it supports the provision of whole building energy use
data but recommends two changes to the rule.
40.
First, the Company recommends the Commission amend Rule 3034 to allow an
agent of the property owner, in addition to the property owner, to request whole building energy
use data. The Company suggests that allowing the agent of the property owner to request the
data is not contrary to Recommended Decision and that in many instances an agent of the owner
is already on record with the Company, so verifying the authenticity of the agent would not be a
burden for the utility.
41.
Denver sought similar relief in proposing the Commission modify the definition
of property owner to allow a property manager as an agent of the owner to access whole building
data. We agree with Denver and Public Service that large, multi-tenant buildings are likely to be
managed by a firm acting as the agent of the owner and that allowing those agents access to
whole building energy use data will facilitate the goal of building benchmarking that is the
purpose of this rule. We therefore adopt Public Service’s suggested change; the phrase “or its
authorized agent” will be added to the rule.
42.
Public Service also recommends the Commission remove the phrase “with the
utility” from Rule 3034(a)(III). The Company states that the inclusion of that phrase leaves it
responsible for enforcing violations of a nondisclosure agreement signed by a property owner or
its agent.
43.
The proposed rule correctly requires a utility to have a signed nondisclosure
agreement between it and either the building owner or owner’s agent before the utility can
disclose whole building data. Nondisclosure agreements required by the Commission must be
12
Decision No. C15-0752
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PROCEEDING NO. 14R-0394EG
“with the utility” as the regulated entity in possession or control of the data.
We deny
Public Service’s exception and uphold the determination of the ALJ.
7.
44.
Rule 3035 – Community Energy Reports
Denver and Boulder each filed an exception recommending the Commission
reconsider the appropriateness of the 15/15 standard 17 as the aggregation standard for annual,
community wide energy consumption data in the community energy report 18.
45.
Denver argues that the 15/15 Rule is unnecessarily restrictive given the level of
data being made available and that the record provides examples of less restrictive data
aggregation standards that are sufficient to protect customer privacy. Denver suggests adoption
of a 4/80 standard. 19
46.
Boulder also argues that the 15/15 standard is too restrictive and suggests that
meeting the standard will require a utility to exclude information from community energy reports
that will prevent the reports from being a meaningful tool for local government policy making.
Boulder suggests that the 15/15 standard can be replaced by a different standard that protects
customer data and is more consistent with industry best practices on privacy protection for data. 20
47.
Boulder states that the record addressing the whole building energy reports
supported a range of aggregation standards. Boulder argues that on adopting a standard, the ALJ
applied a “reasonableness test” to balance access to data with customer privacy and that if the
17
The 15/15 standard specifies that a utility cannot release aggregated data unless there are at least 15
customers in the data set and no single customer uses more than 15 percent of the total data in the set.
18
Rule 3035(d).
19
A 4/80 standard would permit the disclosure of aggregated data as long there are at least 4 customer in
the aggregated group and no customer represents more than 80 percent of the energy used.
20
Boulder indicates that the record includes proposed thresholds of 4/80, 3/50 or 3/60 among others.
Boulder recommends the Commission consider adopting a standard of 3 to 4 customers where no one customer
accounts for more than 50 to 80 percent of total energy use. Examples of such standards would include 3/50, 4/40,
or 4/80.
13
Decision No. C15-0752
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PROCEEDING NO. 14R-0394EG
same test were applied to the data aggregation standard used in the community energy reports,
the 15/15 standard would fail.
48.
The ALJ considered carefully the record on the appropriate aggregation standard
for data provided in the community energy report. We agree with his determination that the
existing 15/15 standard is necessary to preserve customer privacy interests. We therefore deny
the exceptions filed by Boulder and Denver regarding Rule 3035.
49.
Public Service also filed exceptions to the rule on the community energy report.
The Company states that pursuant to Commission decisions, it reports information on solar
installations (rooftop and gardens), on customer participation in demand-side management, and
on participation in Green pricing programs without any aggregation standard. 21
50.
In adopting the 15/15 standard, the ALJ sought to preserve protections for
customers’ data.
However, as Public Service notes, this information is already publically
available through the Commission’s website without an aggregation standard being applied.
We therefore grant Public Service’s exception. The aggregation standard in the proposed rules
for data on solar installations (rooftop and gardens), customer participation in demand-side
management, and participation in Green pricing programs will be removed. However, we clarify
that information provided as aggregated data must conform to Commission rules, including that,
by definition, unique identifiers and personal information must be removed from all aggregated
data.
51.
All exceptions not discussed are denied.
21
Public Service supports and does not oppose the use of the 15/15 Rule for aggregation of general
customer data included in the community energy report.
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PROCEEDING NO. 14R-0394EG
D.
Changes for Consistency and Clarity
52.
On our own motion, we make revisions to achieve consistency between the
Gas and Electric Rules and in revise the rules for clarity.
We correct typographic errors,
make corrections to reflect the exceptions granted by this decision, and add needed citations.
For consistency, we also update penalty requirements between the Gas and Electric Rules to
make them parallel 22 and add references to all rules allowing for release of aggregated data by
the utility within the required customer notice. 23
II.
ORDER
A.
The Commission Orders That:
1.
The Rules Regulating Electric Utilities, 4 Code of Colorado Regulations 723-3,
contained in redline and strikeout format attached to this Decision as Attachment A, and in final
format as Attachment C, are adopted consistent with the discussion above. The permanent rules
are
available
through
the
Commission’s
Electronic
Filings
(E-Filings)
system
at:
https://www.dora.state.co.us/pls/efi/EFI.Show_Docket?p_session_id=&p_docket_id=14R-0394EG.
2.
The Rules Regulating Gas Utilities and Pipeline Operators, 4 Code of Colorado
Regulations 723-4, contained in redline and strikeout format attached to this Decision as
Attachment B, and in final format attached as Attachment D, are adopted, consistent with the
discussion above. The permanent rules are available through the Commission’s E-Filings system
at: https://www.dora.state.co.us/pls/efi/EFI.Show_Docket?p_session_id=&p_docket_id=14R-0394EG.
22
Penalties in Rules 3976 and 4976 are made parallel by adding a penalty for violation of Rules 3031(a)
and (b), consistent with penalties required in the Gas Data Rules for Rules 4031(a) and (b), and adding a penalty for
violation of Rule 4027(d) consistent with violation for Energy Data Rule 3027(d).
23
Attached Rule 3028(a)(IX) is therefore revised to include notice of aggregated data that may be provided
to local governments for audit pursuant to Rule 3031, for whole building data reports pursuant to Rule 3034, and for
community energy reports pursuant to Rule 3035, in addition to the current general citation to requests for
aggregated data pursuant to Rule 3033.
15
Decision No. C15-0752
3.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
The exceptions to Recommended Decision No. R15-0406 file by Public Service
Company of Colorado on June 4, 2015 are denied, in part, and granted, in part, consistent with
the discussion above.
4.
The exceptions to Recommended Decision No. R15-0406 file by the City of
Boulder on June 4, 2015 are denied, consistent with the discussion above.
5.
The exceptions to Recommended Decision No. R15-0406 file by The City and
County of Denver on June 4, 2015 are denied consistent with the discussion above.
6.
The exceptions to Recommended Decision No. R15-0406 file by the City of
Westminster on June 4, 2015 are denied, in part, and granted, in part, consistent with the
discussion above.
7.
The exception to Recommended Decision No. R15-0406 file by the Colorado
Communication and Utility Alliance on June 4, 2015 is denied consistent with the discussion
above.
8.
Subject to a filing of an application for rehearing, reargument, or reconsideration,
the opinion of the Attorney General of the State of Colorado shall be obtained regarding
constitutionality and legality of the rules as finally adopted. A copy of the final, adopted rules
shall be filed with the Office of the Secretary of State. The rules shall be effective 20 days after
publication in the Colorado Register by the Office of the Secretary of State.
9.
The 20-day time period provided by § 40-6-114, C.R.S., to file an application for
rehearing, reargument, or reconsideration shall begin on the first day after the effective date of
this Decision.
10.
This Decision is effective upon its Mailed Date.
16
Decision No. C15-0752
B.
Before the Public Utilities Commission of the State of Colorado
PROCEEDING NO. 14R-0394EG
ADOPTED IN COMMISSIONERS’ WEEKLY MEETING
July 8, 16, 2015.
(S E A L)
THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
JOSHUA B. EPEL
________________________________
PAMELA J. PATTON
________________________________
ATTEST: A TRUE COPY
GLENN A. VAAD
________________________________
Commissioners
Doug Dean,
Director
17