COM/DGX/avs Mailed 12/15/2006

Decision 06-12-030 December 14, 2006

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

TABLE OF CONTENTS

Title Page

DECISION DEFINING "MARKET PARTICIPANT" AND "NON-MARKET PARTICIPANT" FOR THE PURPOSES OF ACCESS TO CONFIDENTIAL DOCUMENTS 22

I. Summary 22

II. Background 44

III. Key Disputes 55

IV. Broad vs. Narrow Definitions 66

A. Parties' Positions 66

B. Discussion 77

V. Relevant Market 1010

A. Wholesale vs. Retail 1010

1. Parties' Positions 1010

2. Discussion 1010

B. Cogenerators 1111

1. Parties' Positions 1111

2. Discussion 1212

C. Direct Access Customers 1414

1. Parties' Positions 1414

2. Discussion 1515

VI. "Reviewing Representatives": Access by
Staff Within a Market participant 1616

A. Parties' Positions 1616

B. Discussion 1717

VII. Attorneys and Consultants Who Work for
Both Market Participants and Non-Market participants 1818

A. Parties' Positions 1818

B. Discussion 1919

VIII. Trade Associations 2121

A. Parties' Positions 2121

B. Discussion 2323

IX. Specific Groups 2424

A. CMTA 2525

1. Parties' Positions 2525

2. Discussion 2626

B. CLECA 2727

1. Parties' Positions 2727

Title Page

2. Discussion 2828

C. IEP 2828

1. Parties' Positions 2828

2. Discussion 2828

D. CAC 2929

1. Parties' Positions 2929

2. Discussion 3030

E. EPUC 3030

1. Parties' Positions 3030

2. Discussion 3131

F. IOUs 3232

1. Parties' Positions 3232

2. Discussion 3434

G. CAISO 3434

1. Parties' Positions 3434

2. Discussion 3535

H. ESPs 3636

I. AReM 3636

X. Definition - Market participant 3636

XI. Definition - Non-Market participant 3838

XII. Comments on Proposed Decision 3838

A. Legal Issues 4040

1. Discrimination 4040

2. Due Process 4040

3. PURPA and Implementing FERC Regulations 4141

4. Energy Crisis 4141

B. Reviewing Representative of MP 4242

C. Exception to Market Participant Definition 4242

D. Whether We Can Decide Status in
a Quasi Legislative Proceeding 4343

E. Specific Groups 4444

F. Attorneys/Consultants 4545

G. Procedural Issues 4646

XIII. Assignment of Proceeding 4646

Findings of Fact 4646

Conclusions of Law 4949

ORDER 5050

DECISION DEFINING "MARKET PARTICIPANT" AND
"NON-MARKET PARTICIPANT" FOR THE PURPOSES
OF ACCESS TO CONFIDENTIAL DOCUMENTS

I. Summary

This decision addresses one issue left open for consideration in Decision (D.) 06-06-066: which individuals and entities are "market participants" and which are "non-market participants" for purposes of having access to confidential electric procurement, resource adequacy and renewables portfolio standard (RPS) data under Pub. Util. Code § 454.5(g). We adopt the following definition of "market participant" for purposes of access to "market sensitive" procurement data covered by § 454.5(g) and/or D.06-06-066:

A "market participant" is

1) A person or entity, or an employee of an entity, that engages in the wholesale purchase, sale or marketing of energy or capacity, or the bidding on or purchasing of power plants, or bidding on utility procurement solicitations, or consulting on such matters, subject to the limitations in 3) below.

2) A trade association or similar organization, or an employee of such organization,

a) whose primary focus in proceedings at the Commission is to advocate for persons/entities that purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations; or

b) a majority of whose members purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations; or

c) formed for the purpose of obtaining market sensitive information; or

d) controlled or primarily funded by a person or entity whose primary purpose is to purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations.

3) A person or entity that meets the criteria of 1) above is nonetheless not a market participant for purpose of access to market sensitive data unless the person/entity seeking access to market sensitive information has the potential to materially affect the price paid or received for electricity if in possession of such information. An entity will be considered not to have such potential if:

a) the person or entity's participation in the California electricity market is de minimis in nature. In the resource adequacy proceeding (R.05-12-013) it was determined in D.06-06-064 § 3.3.2 that the resource adequacy requirement should be rounded to the nearest megawatt (MW), and load serving entities (LSEs) with local resource adequacy requirements less than 1 MW are not required to make a showing. Therefore, a de minimis amount of energy would be less than 1 MW of capacity per year, and/or an equivalent of energy; and/or

b) the person or entity has no ability to dictate the price of electricity it purchases or sells because such price is set by a process over which the person or entity has no control, i.e., where the prices for power put to the grid are completely overseen by the Commission, such as subject to a standard offer contract or tariff price. A person or entity that currently has no ability to dictate the price of electricity it purchases or sells under this section, but that will have such ability within one year because its contract is expiring or other circumstances are changing, does not meet this exception; and/or

c) the person or entity is a cogenerator that consumes all the power it generates in its own industrial and commercial processes, if it can establish a legitimate need for market sensitive information.

We adopt the following definition of "non-market participant":

Persons or entities that do not meet the definition of market participant are non-market participants, and may have access to market sensitive information. It is proper to require such non-market participants to sign a nondisclosure agreement or to be bound by a protective order prohibiting the disclosure of information to market participants.