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Northeast Ohio Public Energy Council (“NOPEC”) and NextEra submitted Application for Rehearing of the Finding and Order (the “Order”) issued by the Public Utilities Commission of Ohio (the “Commission” or “PUCO”) on August 20, 2025, in the above-captioned proceeding. Joint Applicants make this filing as affected persons in this uncontested proceeding. 

As background and as previously reported on May 15, 2025, Governor DeWine signed Substitute House Bill Number 15 (Sub. HB 15). Among other items, Sub. HB 15 adopted two new sections of the Ohio Revised Code (R.C.), R.C. 4928.102 and 4929.221.0F 1 Specifically, R.C. 4928.102 and 4929.221 instruct the Commission to adopt rules imposing certain notice requirements on competitive retail electric service suppliers (CRES) and competitive retail natural gas service suppliers (CRNGS), respectively, when residential and certain small commercial or non-mercantile commercial customers have a contract for a fixed introductory rate that converts to a variable rate upon the expiration of the fixed rate term. In addition to the notice to be sent by CRES and CRNGS providers before contract customers switch from a fixed to variable contract, the legislation also requires an annual notice to be sent to the variable rate customers after the switch.

In response to the new law on August 20, 2025 PUCO issued a Finding & Order adopting new rules that did not include adoption of NOPECs argument that the new law and rules do not apply to opt-out aggregations.  

Excerpts from Joint Application for Rehearing:

“As explained, in more detail below, the Order is unreasonable and unlawful for the following reasons: 

1. The Order fails to clarify that proposed Ohio Adm. Code 4901:1-29-13 does not apply to opt out governmental aggregators and their suppliers in the natural gas context. 
2. The Order fails to clarify that proposed Ohio Adm. Code 4901:1-21-20 does not apply to opt-out governmental aggregators or their suppliers in the electric context.”

Excerpts from Memorandum In Support:

III. GROUNDS FOR REHEARING 

13. The Order is unreasonable because it does not clarify that proposed Ohio Adm. Code 4901:1-29-13 is inapplicable to governmental aggregations in the natural gas context. The Commission should grant rehearing to make it expressly clear that governmental aggregators and their suppliers are not subject to the Commission’s new CRNGS notice rules set forth in proposed Ohio Adm. Code 4901:1-29-13. The rule itself imposes notice requirements in the following circumstance: “If a competitive retail natural gas service supplier offers a residential customer or non-mercantile commercial customer a contract for a fixed introductory rate that converts to a variable rate upon the expiration of the fixed rate, the competitive retail natural gas service supplier shall send two notices to each residential and nonmercantile commercial customer that enters into such a contract (emphasis added).”12 Although there is no specific definition of “competitive retail natural gas service supplier” in the new rule (or corresponding statute), the definition of “retail natural gas supplier” in R.C. Chapter 4929.01(N) is instructive. R.C. 4929.01(N) defines “retail natural gas supplier” as one who supplies a “competitive retail natural gas service to consumers in this state.”13 The definition expressly excludes “a governmental aggregator as defined in division (K)(1) or (2) of this section…”14 Because NOPEC is a governmental aggregator as defined in R.C. 4929.01(K)(1), it is not a competitive retail natural gas supplier and is not subject to R.C. 4929.221 or the proposed rule. Similarly, R.C. 4929.26(A) and Ohio Adm. Code 4901:1-29-02(G) permit a governmental aggregator to enter into service agreements with retail natural gas suppliers to perform functions as the governmental aggregator’s agent. NOPEC has entered into such an agreement with NextEra. Because R.C. 4929.221 and the proposed rule do not apply to NOPEC, they necessarily cannot apply to its agent, NextEra.

“For the reasons set forth above, the Commission should clarify that R.C. 4929.221 and the proposed rule do not apply to governmental aggregators and the agents with which they enter into service agreements. This clarification can be made simply by adding the following language as subsection (F) to proposed OAC 4901:1-29-13(F): 

The requirements of this rule do not apply to opt-out governmental aggregators or the competitive retail natural gas service suppliers with which they enter into service agreements to perform functions as the governmental aggregator’s agent pursuant to R.C. 4929.26(A).

1. The Order is unreasonable because it does not clarify that proposed Ohio Adm. Code 4901:1-21-20 is inapplicable to opt-out governmental aggregations in the electric context. 

The Commission should grant rehearing to make it expressly clear that governmental aggregators and their suppliers are not subject to the Commission’s new CRES notice rules set forth in Ohio Adm. Code 4901:1-21-20. The Commission’s authority to implement the new CRES rules are confined by the express language of R.C. 4928.102. The provisions of R.C. 4928.102 are clearly intended to regulate CRES providers “offering” or “entering into” contracts with customers. The proposed rule itself, which largely mirrors R.C. 4928.102, imposes notice requirements that apply to (i) “a competitive retail electric service supplier ” (ii) that “offers a residential or small commercial customer a contract” (emphasis added); (iii) “for a fixed introductory rate that converts to a variable rate upon the expiration of the fixed rate;” and (iv) the customer “enters into such a contract” (emphasis added).” It is clear that the intent of the proposed rule (and statute) is to target bilateral written contracts entered into directly between a CRES provider and a customer. Customer enrollments in opt-out governmental aggregations are far different. As in NOPEC’s aggregation program, the governmental aggregator enters into a service agreement with a supplier (NextEra) for the supplier to perform functions as the governmental aggregator’s agent. 15 NOPEC and NextEra then negotiate the terms and conditions of service which eligible customer may opt out of. For the reasons set forth in greater detail below, the new rules should not apply to, or be extended to, opt-out governmental aggregators and their suppliers. 

First, under R.C. 4928.20, governmental aggregators are not required to enter into contracts with customers to enroll them in electric opt-out government aggregation programs. Opt-out governmental aggregation is a statutorily prescribed process approved by local community leaders and voters within participating communities. After an opt-out aggregation program is approved by local leadership, neither NOPEC nor its supplier individually negotiates or signs written contracts with eligible opt-out aggregation customers. Instead, enrollment occurs automatically through a comprehensive and detailed opt-out notification process set forth in the Ohio Revised Code and Ohio Administrative Code. This opt-out notice and automatic enrollment process is not the situation the General Assembly was targeting when it created R.C. 4928.102. 

Second, the statutes and rules governing opt-out governmental aggregations establish a detailed opt-out process for electric opt-out governmental aggregations like NOPEC’s. For electric opt-out government aggregation programs, written notices must be sent to all eligible customers prior to enrollment—a formal notice process that must be repeated every three years.16 Commission Staff reviews the format and content of the opt-out notices before they are mailed to customers, and much of the information required to be included in NOPEC/NextEra’s opt-out materials is the same type of information set forth in the new rule (e.g., a detailed explanation of NOPEC’s programs and program pricing).17 In other words, aggregation participants already have the information required in the HB 15 notices as part of the opt-out mailings required under Ohio law. Applying the new notice rules in the aggregation context would result in unnecessary duplication and cause extreme customer confusion (see more below). 

Third, an extension of the term “contract” to include opt-out governmental aggregation programs would be inconsistent with the Commission’s standard practice of exempting opt-out government aggregations from the contracting requirements imposed on CRES/CRNG providers. The Commission currently excludes opt-out governmental aggregation programs from CRES/CRNGS rules addressing customer enrollment and consent (Ohio Adm. Code 4901:1-21- 06(C) and 4901:1-29-06(B)) and contract administration and renewals (Ohio Adm. Code 4901:1- 21-11(A) and 4901:1-29-10). Exempting opt-out government aggregations from the new notice rules would align with the Commission’s long-standing practice of distinguishing between customers enrolled through bilateral contracts and customers included in an opt-out aggregation program. 

Fourth, and unlike the standard CRES model, voter involvement, local political oversight and the very structure of NOPEC’s aggregation programs provide important safeguards to customers in the opt-out governmental aggregation context.18 For example, unlike certain bilateral agreements offered by a number of CRES providers, NOPEC’s opt-out governmental aggregation participants are free to move between programs offered by NOPEC at any time and at no cost, and are free to leave NOPEC’s governmental aggregation program (to return to the SSO or enter into an agreement with another supplier) at any time and at no cost. Further, local government leaders, who answer directly to their constituency, have close oversight over the aggregation program pricing provided to eligible customers within their communities. These safeguards are built into the very structure of government aggregation and are a substitute for the need to apply consumer oriented notice rules to governmental aggregators and their suppliers. 

Finally, the Commission’s new notice rules would undoubtedly result in very substantial customer confusion and generate customer complaints. Participants in an opt-out governmental aggregation program already receive the required opt-out mailings from the governmental aggregator. In the case of Joint Applicants, the new rule would require three additional notices to the approximately 900,000 existing NOPEC/NextEra electric and gas governmental aggregation customers during anniversary mailings. In addition, NOPEC/NextEra mail “refresher” opt-out notices to approximately 20,000-30,000 newly eligible customers every other month, so these additional customers would also be inundated by the unnecessary mailings required by the new notice requirements. As a direct result of these additional mailings, there would undoubtedly be a significant increase in customer confusion and related calls/complaints to the Commission and NOPEC/NextEra call centers. 

Confusing 900,000 governmental aggregation customers and increasing the amount of unwarranted customer complaints is clearly not what the legislature or Commission intended— and is yet another reason that the notice requirements are not intended to apply to governmental aggregators or their suppliers. For these reasons, the Commission should clarify the rule to confirm that opt-out governmental aggregators and their suppliers are excluded. This clarification can be made simply by adding the following language as subsection (G) to proposed Ohio Adm Code 4901:1-21-20(G): 

The requirements of this rule do not apply to opt-out governmental aggregators or the competitive retail electric service suppliers with which they enter into service agreements to perform functions as the governmental aggregator’s agent pursuant to R.C. 4928.20(A).”

Excerpt from Ohio of Office of Consumer In Support of Rehearing:

“The Joint Application for Rehearing filed earlier today by the Northeast Ohio Public Energy Council (“NOPEC”) and NextEra Energy Services Ohio, LLC (“NextEra”) explains the harm the proposed rules would have on Ohio’s residential aggregation consumers. OCC agrees with NOPEC/NextEra that the Order is unreasonable and unlawful for the following reasons: A. The Order fails to clarify that proposed Ohio Adm. Code 4901:1-29-13 does not apply to opt-out natural gas governmental aggregators or their suppliers. B. The Order fails to clarify that proposed Ohio Adm. Code 4901:1-21-20 does not apply to opt-out electric governmental aggregators or their suppliers.”

Excerpt from OCC’s Memorandum In Support: 

“OCC files this Application for Rehearing to protect residential aggregation consumers from harm if the proposed rules were applied to governmental aggregators and their suppliers. OCC supports the legal arguments made in NOPEC/NextEra’s Joint Application filed earlier this date. The Order would harm and confuse residential aggregation consumers with the numerous notices in addition to those already required by statute and rule.”

“As noted in the NOPEC/NextEra Joint Application2 the new notice rules would result in significant confusion and generate numerous consumer complaints. Opt-out governmental aggregation consumers already receive the required opt-out mailings from the governmental aggregator. The proposed rules would require three additional notices to consumers (numbering approximately 900,000 for NOPEC/NextEra electric and gas governmental aggregation customers). OCC agrees that the proposed rules would inundate aggregation consumers with additional notices, which would lead to confusion, consumer complaints, and a strain on the PUCO’s, OCC’s, and NOPEC/NextEra’s call centers. OCC agrees that the governmental opt-out notices currently required under the PUCO’s rules3 (which are reviewed by PUCO Staff before mailing) are sufficient to protect the interests of residential governmental aggregation consumers.”

NOPEC & NextEra Joint Application For Rehearing
Office of Ohio Consumer Counsel Application for Rehearing
Finding & Order  (08/20/2025) 

25-710-GE-ORD
(In the Matter of the Consideration of Rules as Required by Newly Adopted R.C. 4928.102 and 4929.221 Electric & Gas)