BILL ANALYSIS                                                                                                                                                                                                              1
          1





                SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
                               DEBRA BOWEN, CHAIRWOMAN
          

          AB 428 -  Richman/Canciamilla                     Hearing Date:   
          June 22, 2004                        A
          As Amended:         June 2, 2004             FISCAL       B
                                                                        
                                                                        4
                                                                        2
                                                                        8

                                      DESCRIPTION
           
           Existing law:  

          1.Authorizes retail competition (direct access) within the  
            service areas of the investor-owned utilities (IOUs) (AB 1890  
            (Brulte), Chapter 856, Statutes of 1996).

          2.Requires the California Public Utilities Commission (CPUC) to  
            suspend the right of IOU customers to acquire direct access  
            service until the Department of Water Resources (DWR) no  
            longer supplies power to IOU customers (AB 1X (Keeley),  
            Chapter 4, Statutes of 2001).  Pursuant to AB 1X, the CPUC has  
            suspended direct access as of September 20, 2001. 

          3.Declares the intent of the Legislature that all customers  
            taking service from an IOU after the enactment of AB 1X bear a  
            fair share of specified DWR costs and that any cost shifting  
            between customers be prevented (AB 117 (Migden), Chapter 838,  
            Statutes of 2002).

           This bill:  

          1.Terminates the suspension of direct access on January 1, 2006.

          2.Requires the CPUC, by April 1, 2005, to establish rules for  
            phased implementation of direct access.

          3.Authorizes the CPUC to establish requirements it determines  
            necessary to ensure bundled customer indifference to direct  
            access.












          4.Requires the CPUC to permit direct access equivalent to load  
            growth and reduction in DWR contract obligations from  
            2006-2009.

          5.Requires the CPUC, by April 1, 2005, to establish a  
            core/non-core direct access model, to commence January 1,  
            2009, consistent with specified principles.

          6.Requires the Independent System Operator to enforce resource  
            adequacy requirements.

          7.Requires the CPUC, by April 1, 2005, to report on its direct  
            access rules.

          8.Prohibits the CPUC from adopting an IOU procurement plan  
            unless it complies with the CPUC's schedule for phased  
            implementation of direct access.

          9.Requires the CPUC to establish transition rules that allow an  
            IOU to avoid stranding capacity through its procurement plan.

                                      BACKGROUND
           
          The "core/non-core" approach to utility service is derived from  
          natural gas service, where customers are divided into core and  
          non-core classes according to consumption.  Gas utilities are  
          required to procure and deliver a portfolio of gas supplies  
          sufficient to serve their core (residential and small  
          commercial) customers.  Non-core customers must arrange for  
          procurement and transportation of their own gas supplies.  

          As part of the restructuring of the electric industry, AB 1890  
          authorized direct access.  While customers were allowed to  
          choose alternate providers of energy, the IOUs' obligation to  
          serve all customers remained and customers large and small were  
          entitled to remain with, or return to, bundled IOU service.   
          Historically, IOU electric customers have been entitled to the  
          portfolio of supplies procured to serve them without regard to  
          their size.

          To avoid the dysfunctional spot market that financially  
          decimated the IOUs and threatened catastrophic rate increases,  
          AB 1X established a structure to permit DWR to buy needed  
          electricity for IOU customers under long-term contracts.  To  










          ensure the predictable revenue stream necessary for long-term  
          contracts, the issuance of ratepayer-backed revenue bonds, and  
          prevent cost-shifting from direct access to bundled service  
          customers, the CPUC was directed to suspend direct access to  
          prevent additional migration of IOU customers.  After a  
          seven-month delay, the CPUC suspended direct access on September  
          20, 2001.

          Between January and June 2001, the vast majority of customers  
          previously served by direct access providers returned to IOU  
          service, benefiting from retail rates which were lower and more  
          stable than market prices.  However, between July 1, 2001 and  
          September 20, 2001, thousands of predominantly large industrial  
          customers, who had taken service from the state at below-market  
          rates, departed for direct access as market conditions improved.  
           During the July 1 to September 20 period, direct access  
          increased from approximately 2% to approximately 13% of the  
          total IOU load.  Direct access load has grown since that time  
          due to the CPUC's liberal interpretation of the Legislature's  
          direction to suspend direct access, including allowing customers  
          to begin direct access service after the suspension date and  
          switch between bundled service and direct access service.

          Meanwhile, the CPUC has dedicated a share of bundled customer  
          rates to a loan program to defer direct access customers'  
          payment of DWR and IOU procurement costs.  In a decision issued  
          in November 2002 (Decision 02-11-022), the CPUC capped the  
          payment for these costs applicable to direct access customers at  
          2.7 cents per kilowatt hour.  The CPUC majority reasoned such a  
          cap was necessary to maintain the viability of existing direct  
          access contracts.

          The 2.7 cent charge doesn't cover what direct access customers  
          owe for DWR power already delivered, or for DWR operating costs  
          in the next few years, so a revenue shortfall or  
          "under-collection" results.  Since payment of DWR's costs (bond  
          payment and ongoing revenue requirement) can't be postponed, the  
          CPUC decision shifts the obligation to pay any shortfall from  
          direct access customers to each IOU's bundled customers.

          According to DWR, the current direct access under-collection is  
          about $750 million.  The shortfall is expected to continue to  
          grow in 2004.  Over time, as DWR costs decline, direct access  
          customers' payments are projected to catch up and pay off this  










          under-collection.  DWR estimates the under-collection will be  
          paid off in 2011 in PG&E territory, 2014 in SCE territory, and  
          2005 in SDG&E territory.  In the meantime, IOU customer rates  
          will have to maintained at a level high enough to support this  
          "forced loan" to direct access customers.

                                       COMMENTS
           
           1.Multiple choice.   This bill establishes new direct access  
            statutes without reconciling them with the existing direct  
            access statutes enacted by AB 1890, which require the CPUC to  
            authorize and facilitate direct access.  For new customers,  
            these statutes are inoperative due to the suspension of direct  
            access.  Under this bill, they will become operative again on  
            January 1, 2006.

            This bill directs the CPUC to permit direct access equivalent  
            to load growth and reduction in DWR contract obligations from  
            2006-2009.  This bill further directs the CPUC to establish  
            core/non-core direct access, beginning in 2009.  It's not  
            clear how each of these provisions of law would relate to the  
            others and how they would be applied to existing and future  
            direct access customers.  To create a more consistent,  
            deliberate direct access policy,  the author and the committee  
            may wish to consider  reconciling existing law requiring the  
            CPUC to facilitate direct access with the provisions of this  
            bill requiring the CPUC to limit, or impose new conditions on,  
            direct access.

           2.Direct access starts in 2006, but core/non-core principles  
            don't apply until 2009.   This bill restores direct access in  
            2006 and permits, but doesn't require, the CPUC to impose  
            certain conditions.  The core/non-core program begins in 2009,  
            three years  after  the direct access suspension is lifted.   
            Prospective direct access customers will have an incentive to  
            leave before 2009 to avoid the limitations associated with  
            core/non-core.   The author and the committee may wish to  
            consider  whether the core/non-core rules should be implemented  
            before customers are permitted to depart.

           3.Fewer customers to carry forced loan.   This bill doesn't  
            address the burden on bundled customers resulting from the  
            CPUC's current direct access program.  While the bill  
            authorizes the CPUC to ensure "bundled customer indifference,"  










            the CPUC claims its existing forced loan is consistent with  
            this term.  The bundled business customer paying to subsidize  
            its direct access competitor would probably beg to differ.  

            If the forced loan is left in place, and additional customers  
            are allowed to move from bundled service to direct access, the  
            per customer share of the forced loan will increase.  To avoid  
            increasing the burden of direct access customer costs on  
            bundled customers,  the author and the committee may wish to  
            consider  postponing additional direct access until the forced  
            loan is repaid. 











































           4.Mixed signals to IOUs regarding investments.   AB 57 (Wright),  
            Chapter 835, Statutes of 2002, requires IOU procurement plans  
            to "enable the (IOU) to fulfill its obligation to serve at  
            just and reasonable rates."  The IOUs are currently expected  
            to meet load growth and replace the DWR contracts over the  
            next several years via the procurement process initiated by  
            the CPUC pursuant to AB 57.  The CPUC has recently approved  
            contracts for new power plants to serve IOU customers which  
            will be completed in the 2006-2009 timeframe.  The IOUs are  
            required to buy additional renewable power under long-term  
            contracts pursuant to SB 1078 (Sher), Chapter 516, Statutes of  
            2002, the Renewable Portfolio Standard (RPS).  The Governor,  
            the energy agencies and pending legislation (SB 1478 (Sher))  
            have endorsed accelerating the RPS schedule.  Under the recent  
            CPUC long-term procurement decision (Decision 04-01-050), IOUs  
            will be obligated to build or buy resources to meet a 15-17  
            percent reserve margin by 2008.  The Governor has asked the  
            CPUC to accelerate achievement of the reserve margin to 2006.   
            The energy agencies have adopted a goal of decreasing per  
            capita energy consumption.  

            The IOUs, and their customers, are the primary vehicle to  
            deliver all of the above.  These initiatives, on top of  
            existing obligations for utility generation, qualifying  
            facilities, and DWR contracts, will make the IOUs' portfolios  
            stable, but also fairly inflexible.

            Against this backdrop, this bill permits the IOU customers who  
            would support all these initiatives to leave for direct access  
            during the same time period the intitiatives are to be  
            implemented.  The bill further requires the CPUC to ensure the  
            IOUs don't procure to meet the needs of customers who might  
            leave, without knowing whether they will leave, or if they  
            leave, whether they will return.   The author and the committee  
            may wish to consider  how an expansion of direct access can be  
            reconciled with other policy goals embodied in AB 57, SB 1078  
            and the Energy Action Plan.

           5.Related legislation.   AB 2006 (Nunez), pending in this  
            committee, requires the CPUC to implement a core/non-core  
            model, subject to conditions which are more specific and  
            restrictive than this bill.

                                      PRIOR VOTES










           
          Senate Energy, Utilities and Communications Committee           
          (2-3) (failed passage)
          Assembly Floor                          (67-0)
          Assembly Appropriations Committee       (24-0)
          Assembly Utilities and Commerce Committee                       
          (11-0)

                                       POSITIONS
           
           Sponsor:
           
          Author









































           Support:
           
          Sempra Energy (if amended)
          Independent Energy Producers (if amended)

           Oppose:
           
          California Coalition of Utility Employees
          Clean Power Campaign (unless amended)
          Foundation for Taxpayer and Consumer Rights
          Natural Resources Defense Council (unless amended)
          Pacific Gas and Electric Company (unless amended)
          The Utility Reform Network (TURN)



          





































          Lawrence Lingbloom 
          AB 428 Analysis
          Hearing Date:  June 22, 2004