I 111th CONGRESS 2d Session H. R. 5696 IN THE HOUSE OF REPRESENTATIVES July 1, 2010 Mr. Markey of Massachusetts (for himself, Mrs. Capps, Mr. Polis of Colorado, Mr. Inslee, and Ms. DeGette) introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Public Utility Regulatory Policies Act of 1978 to provide electric consumers the right to access certain electric energy information.

1.

Short title

This Act may be cited as the Electric Consumer Right to Know Act or the e–KNOW Act.

2.

Findings

Congress finds the following: (1)According to the Energy Information Administration, United States consumers spent over $360,000,000,000 each year on electricity as of 2008 and an estimated 250 gigawatts of new generating capacity will need to be added in the United States over the next 25 years to maintain grid integrity in the face of increasing electricity demand. (2)Recent studies demonstrate that consumers change their energy consumption behavior in response to feedback regarding prices and patterns of use and that improved access to usage and price information can result in dramatic reductions in electricity demand and billions of dollars in cost savings. (3)Across the United States, utilities are deploying millions of smart electricity meters, which record more detailed electricity usage information than conventional meters and in most cases have the capacity to communicate such information to utility or on-site networks, as a means of improving the efficiency and reliability of the electric grid. (4)The full benefit of smart meters will be realized only if the consumers served by such meters have secure access to the enhanced information recorded by such meters, on a near real-time basis wherever feasible. (5)Whether a consumer is served by a smart meter or a conventional meter, secure access to usage and price information on past electricity consumption, in a machine-readable format, can play a critical role in enabling consumers and energy service companies to identify opportunities for greater efficiency and cost savings in electricity usage. (6)Although Congress, in the Energy Independence and Security Act of 2007, amended the Public Utility Regulatory Policies Act of 1978 to require State public utility commissions and nonregulated utilities to consider providing consumers with increased access to electricity usage and price information, only a handful of States have adopted policies to require such access. (7)Consumers should have the right to timely access to the information that utilities record and collect from them regarding their electricity usage, and to information on the prices applied to that usage. (8)Improved access to information will empower consumers to better manage their electricity use and to reduce costs and will foster the development of a vibrant, innovative market for products and services to assist consumers in doing so. (9)In providing consumers access to electricity usage information, whether directly or through an authorized third party, it is imperative that the privacy of consumers and the security of their usage information be fully protected.

3.

Electric consumer right to access electric energy information

(a)

Electric consumer right of access

Title II of the Public Utility Regulatory Policies Act of 1978 is amended by adding after section 214 the following new section:

215.

Electric consumer right to access electric energy information

(a)

Definitions

For purposes of this section: (1)

Federal smart grid support

The term Federal smart grid support means any grant provided under section 1306 of the Energy Independence and Security Act of 2007 or any grant, contract, loan, loan guarantee, or other financial assistance provided to any smart grid project under any other program administered by the Secretary. (2)

Free of charge

The term free of charge means, with respect to electric consumer or authorized third party access to retail electric energy information, that no fee is charged for such access. Such term shall not be construed to imply that any costs of providing such access are not recovered or recoverable through generally applicable rates. (3)

Nationally recognized standard

The term nationally recognized standard means a standard that is recognized under the process coordinated by the Director of the National Institute of Standards and Technology under section 1305 of the Energy Independence and Security Act of 2007. (4)

Near real-time

The term near real-time means, with respect to communication of electric energy usage information by a smart meter, within 1 minute of the time at which such information is recorded by the meter. (5)

Retail electric utility

The term retail electric utility means the electric utility that measures, records, and collects information on an electric consumer’s electric energy usage for billing purposes. (6)

Retail electric energy information

The term retail electric energy information means the following: (A)

Usage information

An electric consumer’s electric energy consumption, measured in kilowatt-hours. (B)

Pricing information

The rate applied to electric energy consumed by the electric consumer. (7)

Smart grid functions

The term smart grid functions has the meaning given such term in section 1306(d) of the Energy Independence and Security Act of 2007. (8)

Smart grid project

The term smart grid project means a project that includes implementation, by a retail electric utility, of smart grid functions. (9)

Smart meter

The term smart meter means a device used by a retail electric utility at the residence or facility of an electric consumer that is capable of measuring electric energy usage in intervals of 1 hour or shorter and of communicating electric energy usage information by means of an electronic machine-readable signal in near real-time. (10)

Third party

The term third party means, with respect to any transaction involving retail electric energy information, a person or entity other than— (A)the electric consumer to which such retail electric energy information pertains; or (B)the retail electric utility providing electric service to such electric consumer. (b)

Consumer right of access

(1)

In general

Each electric consumer in the United States shall have the right to access (and to authorize 1 or more third parties to access), from such consumer’s retail electric utility, the retail electric energy information of such electric consumer in electronic machine-readable form, in conformity with applicable nationally recognized standards, free of charge, and in a manner that is timely and that provides adequate protections for the security of such information and the privacy of such electric consumer. (2)

Granularity of information

The right to access retail electric energy information under paragraph (1) shall include the right to access retail electric energy information— (A)in the case of an electric consumer served by a smart meter, measured at intervals not less frequent than the intervals at which usage information is recorded by such smart meter; and (B)in the case of an electric consumer not served by a smart meter, measured at intervals of a frequency prescribed by the State regulatory authority or other entity with authority to set retail rates for the relevant retail electric utility, provided that in no event shall such frequency be less than monthly. (3)

Timeliness and mode of access

(A)

Web presentment

The right to access retail electric energy information under paragraph (1) shall include— (i)in the case of an electric consumer served by a smart meter, the right to access retail electric energy information not more than 24 hours after electric energy consumption is recorded, through an Internet Web site operated by the retail electric utility or by such other entity as the retail electric utility or the relevant State regulatory authority may designate; and (ii)in the case of an electric consumer not served by a smart meter, the right to access retail electric energy information as expeditiously as possible after the time electric energy consumption is recorded, through an Internet Web site operated by the retail electric utility or by such other entity as the retail electric utility or the relevant State regulatory authority may designate. (B)

Data export

Where requested by the electric consumer, the right to access retail electric energy information under paragraph (1) shall include the right to receive, or to authorize a third party to receive, such electric consumer’s retail electric energy information— (i)through electronic mail or other appropriate means of export from the retail electric utility’s data storage system; (ii)in a machine-readable electronic format consistent with any applicable nationally recognized standard; and (iii)on a 1-time or recurring basis. (C)

Direct meter access

In the case of an electric consumer served by a smart meter, the right of access to retail electric energy information under paragraph (1) shall include the right to access retail electric energy usage information and such other electric energy usage information as the smart meter is capable of recording (such as demand measured in kilowatts, voltage, frequency, current, and power factor)— (i)directly from the smart meter at any time; and (ii)using 1 or more smart meter-compatible devices that conform with nationally recognized standards. This subparagraph shall not apply in the case of an electric consumer served by a smart meter installed prior to the date that is 2 years after the date of enactment of this section that is not capable of such on-site communication.(4)

Historical information

The right to access retail electric energy information under paragraph (1) shall include the right to access— (A)at minimum, monthly aggregate information for at least the most recent 13 months; and (B)such other retail electric energy information as the retail electric utility retains, in accordance with any applicable requirements under State law. The requirements under this paragraph shall not apply to direct access to electric energy usage information from a smart meter.(5)

Third party use of information

A third party authorized by an electric consumer to access such consumer’s retail electric energy information shall not use such information for any purpose other than the provision of services by such third party to the electric consumer, and shall not disclose such information to any other party, unless such authorized third party has received the informed, written consent of the electric consumer for such use or disclosure. (c)

Model rule

(1)

In general

Not later than 1 year after the date of the enactment of this section, the Commission shall, after consultation with State regulatory authorities, national organizations representing nonregulated utilities, the Secretary of Energy, the Director of the National Institute for Standards and Technology, and other appropriate Federal agencies, and after notice and opportunity for comment, issue a model rule prescribing minimum standards for implementation of the electric consumer right to access retail electric energy information under subsection (b)(1). (2)

Prior State action

In formulating the model rule under paragraph (1), the Commission shall, to the extent practicable, preserve the integrity of and be guided by actions already taken by State regulatory authorities to ensure electric consumer access to retail electric energy information, including actions taken after consideration of the standard under section 111(d)(19). (3)

State consideration

Each State regulatory authority and each nonregulated utility shall consider adoption and implementation of the national model rule issued under paragraph (1) (or a comparable rule or policy), as provided under section 111(d)(20). (d)

Federal smart grid support programs

(1)

Consideration as a factor

Beginning on the date that is 1 year after the model rule under subsection (c) is issued, the Secretary, in determining whether to award Federal smart grid support to a retail electric utility, shall give preference to any applicant that has implemented policies for electric consumer access to retail electric energy information at least as stringent as those prescribed by the model rule issued under subsection (c). (2)

Requirement

Notwithstanding any other provision of law, beginning on the date that is 2 years after the date the model rule under subsection (c) is issued, no retail electric utility shall be eligible to receive Federal smart grid support unless such utility has implemented policies for electric consumer access to retail electric energy information at least as stringent as those prescribed by the model rule issued under subsection (c). (e)

Backstop State enforcement

(1)

In general

Beginning on the date that is 3 years after the date the model rule under subsection (c) is issued, if the attorney general of a State, or another official or agency of a State with competent authority under State law, has reason to believe that any retail electric utility in the relevant State is not complying with the minimum standards set forth in the model rule issued under subsection (c) (or standards of comparable or greater stringency with respect to consumer access to retail electric energy information), the attorney general, official, or agency of the State, as parens patriae, may bring a civil action against such retail electric utility, on behalf of the electric consumers receiving retail service from such retail electric utility, in a district court of the United States of appropriate jurisdiction, to compel compliance with such standards. (2)

Costs and fees

In any civil action under paragraph (1), if the party bringing the action is successful in enforcing the standards identified by the model rule issued under subsection (c), the court may award to such party the costs of the action together with reasonable attorney’s fees, as determined by the court. (3)

Safe harbor

(A)

In general

No civil action may be brought against a retail electric utility under paragraph (1) if the Commission has determined that such retail electric utility, or the State regulatory authority that regulates such electric utility, has adopted a policy that is at least as stringent, with respect to electric consumer access to retail electric energy information, as the model rule issued under subsection (c). (B)

Commission review

Not later than 1 year after the date of enactment of this section, the Commission shall, after notice and opportunity for comment, issue an order establishing procedures for making determinations under subparagraph (A). Such order shall provide that, where a State regulatory authority or a retail electric utility certifies and adequately documents to the Commission that it has adopted a policy that is at least as stringent, with respect to electric consumer access to retail electric energy information, as the model rule issued under subsection (c), the Commission shall make a determination under subparagraph (A) within 90 days of receipt of such certification. (4)

Rule of construction

Except as provided in paragraph (1) of this subsection, nothing in this section shall be construed to create a private right of action. (f)

Cost recovery

A retail electric utility shall not be denied the opportunity to recover prudently incurred incremental costs of complying with the requirements of this section, in accordance with any applicable State or Federal law.

. (b)

State consideration of model rule

(1)

Consideration

Section 111(d) of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2621(d)) is amended by adding at the end the following: (20)

Consumer access to retail electric energy information

Each electric utility providing retail electric service to an electric consumer shall provide such consumer with access to information regarding such consumers electric energy usage, and prices applicable to such usage, in accordance with the model rule issued by the Commission under section 215(c). . (2)

Timing

Section 112(b) of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2622(b)) is amended by adding at the end the following: (7)(A)As soon as practicable after the issuance by the Commission of the model rule under section 215(c), each State regulatory authority (with respect to each electric utility for which it has ratemaking authority) and each nonregulated utility shall commence the consideration referred to in section 111, or set a hearing date for consideration, with respect to the standard established by paragraph (20) of section 111(d). (B)Not later than 1 year after the date of the issuance by the Commission of the model rule under section 215(c), each State regulatory authority (with respect to each electric utility for which it has ratemaking authority) and each nonregulated utility shall make the determination, referred to in section 111 with respect to the standard established by paragraph (20) of section 111(d). . (3)

Failure to comply

Section 112(c) of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2622(c)) is amended by striking (19) and inserting (20). (4)

Prior State actions

Section 112 of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 2622) is amended by adding at the end the following: (g)

Prior State actions

Subsections (b) and (c) of this section shall not apply to the standard established by paragraph (20) of section 111(d) in the case of any electric utility in a State if, before the issuance of the model rule under section 215(c)— (1)the State has implemented for such utility the standard concerned (or a comparable standard); (2)the State regulatory authority for such State or relevant nonregulated electric utility has conducted a proceeding to consider implementation of the standard concerned (or a comparable standard) for such utility; or (3)the State legislature has voted on implementation of such standard (or a comparable standard) for such utility. . (c)

Conforming amendment

The table of contents for the Public Utility Regulatory Policies Act of 1978 is amended by adding after the item relating to section 214 the following new item: Sec. 215. Electric consumer right to access electric energy information. .