Attached is a ruling issued yesterday by Commissioner Wood directing that ESPs and customers file copies of direct access contracts with the Commission by December 3.  The contracts will be available to ALL other parties who sign a "suitable" protective order.  The Ordering Paragraphs read as follow:

1.     By December 3, 2001, any party who believes that it has a direct access contract or agreement potentially affected by an order to suspend direct access as of July 1, 2001 or a date earlier than September 20, 2001, shall submit a true and correct copy of each of the actual contracts or agreements along with any arguments as to the impact of such an order.  A failure to submit this information for the Commission's consideration will be considered a waiver of the arguments related to claims involving the contracts and agreements.  Initially, the true and correct copy of each of the actual contracts or agreements shall be filed under seal with the Commission's Docket Office and served on Administrative Law Judge (ALJ) Robert Barnett.

2.     Office of Ratepayer Advocates shall work with the parties who have executed direct access contracts or agreements to develop a proposed protective order and nondisclosure agreement for Commission staff, which shall be submitted to ALJ Barnett by December 3.  

3.     The electric service providers and customers who are parties shall work with other parties and shall jointly submit a proposed protective order and nondisclosure agreement that will cover parties other than Commission staff by December 11, 2001. 

4.     Parties' supplemental comments to the comments they filed in response to the October 23rd Assigned Commissioner Ruling shall be submitted by January 4, 2002.

As a preliminary matter, of course, AReM and WPTF do not, in their own names, have direct access contracts.  However, certain members of AReM and WPTF are direct parties to the proceeding and need to consider what course they wish to take.  The group also needs to consider if they wish to fight this Order on Constitutional or procedural grounds.  I will be considering our options and get back to you with more detail.  However, as a very preliminary analysis, it is evident that the Commission does not have jurisdiction over either ESPs or the customers they serve.  The request is also particularly outrageous because of the statements that, "A failure to submit this information for the Commission's consideration will be considered a waiver of the arguments related to the claims involving the contracts and agreements" and "Parties to this proceeding may have access to these contracts and agreements after the appropriate protective order and nondisclosure agreements are in effect."  The former is a likely denial of due process and the latter exposes proprietary contracts and pricing information to ESP competitors and exposes sensitive pricing information to competitors of energy-dependent customers.  
 
Your thoughts would be appreciated.  My initial reaction  is that this is time for ESPs and customer groups, such as CMTA, ABAG, CLECA, CIU, EPUC, SPURR, etc., to band together and fight this at multiple levels, from the Governor's Office on down, including in the media.  Your thoughts would be very much appreciated.
 
Dan
 
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