The Michigan Air Conditioning Contractors Association (MIACCA) on behalf its mechanical contractor members, whom for decades have competed against utility appliance service plans (ASP), submits the following comments as requested by the Michigan Public Service Commission (Commission) in its September 26, 2019 Order in Case No. U-18361. Specifically the Commission requested comments on 4 issues, stated below along with the MIACCA comment:
1) Data Security/Privacy: Utilities are required to comply with all data privacy tariffs. Rule 9(1). A customer list may only include the name and address of a customer. Rule 9(2). Does a customer list require the heightened security discussed by the utilities? Customer consumption and billing information requires prior written customer approval in order to be shared. Rule 9(4). In light of the prior written approval requirement, does this information require the heightened security discussed by the utilities? Are there instances where a utility should routinely require an affiliate or VAPS to acquire the requested information from a third party? Alternatively, should the Commission consider amending the rules to allow no information sharing beyond the requirement of MCL 460.10ee(10)(a) for the sharing of customer lists?
MIACCA Comment: Given that with MCL 460.10ee(10)(a) the Legislature specifically provided for the utilities to make available the customer list without any regards to data privacy tariffs the Commission should not impose or allow the utility to impose any further restriction to obtaining the customer list on a provider of a similar program or service. The customer mailing list is not information that warrants additional data privacy tariff concerns. Utility customer consumption, billing and other information is not specifically authorized by MCL 460.10ee to be shared by the utility with its affiliate or VAPS provider as that is preferential treatment and unauthorized information sharing beyond MCL 460.10ee; therefore such sharing of information other than customer mailing list must be prohibited by the Commission from being shared by the utility with its affiliate or VAPS provider in order to uphold the letter and intent of MCL 460.10ee(1) and (6)(c). The Commission must amend its rules to prohibit information sharing beyond the requirement of MCL 460.10ee(10)(a) for the sharing of customer mailing lists. If an utility does not want to expose itself to potential data privacy issues from providing the customer list pursuant to MCL 460.10ee(10)(a) then the utility should choose not to offer the voluntary VAPS. Because of the potential for utility information sharing abuse or claimed oversight by the utility for its affiliates or VAPS provider’s benefit, all sharing requests for the list of customers from any affiliate, VAPS provider or competitor must go through the MPSC website. This would help ensure that only the customer list is being provided by the utility along with being timely provided to competitors as required.
2) Timing of Response: MCL 460.10ee(10)(a) allows 5 business days for the provision of customer lists. Should this standard be adopted for all information sharing responses? This would become the meaning of "contemporaneously" under Rule 9(3), (5), and (6).
MIACCA Comment: Yes, 5 business days should be adopted by the Commission for the meaning of “contemporaneously”.
3) Same Terms and Conditions: Rule 9(3), (5), and (6) require the "same form and manner" for information sharing. Does this mean provision of the identical information?
MIACCA Comment: Yes the utility must provide the information in a nondiscriminatory basis, MCL 460.10ee(10)(a), to the extent that the information provided by the utility is in a standard free market format that a competitor can readily use and not in an utility format that requires expensive and or specialized software to access. The Code of Conduct must include measures to prevent preferential treatment by the utility to its affiliate and or VAPS provider, MCL 460.10ee(1).
4) Competitor versus Non-Competitor: How should the requesting party establish that it is a current or potential/new competitor of the party that received the shared information?
MIACCA Comment: The Commission should require the requester to self-certify that they are representative of a provider of a similar program or service or potential provider. Utilities have the option of giving notice or its intent to offer VAPS and thereby exploring the feasibility of such; potential competitors should also be given the opportunity to obtain the information and do its own feasibility analysis. Furthermore the burden of proof must remain with the utility if the utility wants to challenge this certification as it the utility that is subject to penalties and costs for violations, MCL 460.10ee(14).