26 Del. Admin. Code § 3013-5.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 3013-5.0 - Application for Final Certificate to Operate

5.1 After the community energy facility complies with subsections 6.1.1. and 6.1.2, it may then seek a final certificate to operate from the Commission

5.2 Applications for a final certificate to operate must contain all required information and exhibits and may contain such additional information as the applicant deems appropriate to demonstrate to the Commission that it possesses the financial, managerial, and operational ability to adequately serve the public consistent with applicable State laws.

5.3 Applications for a final certificate to operate must contain at least the following:

5.3.1 Changes. Any changes to the information provided with the application for a preliminary certificate to operate, submitted under Section 4.0 of this regulation;

5.3.2 Regulatory contact person. The contact information for a regulatory contact person (if applicable) responsible for the community energy facility's Delaware operations;

5.3.3 Subscriber complaint contact person. The contact information for a subscriber complaint contact person, if different from the regulatory contact person;

5.3.4 Attorney. The name, address, telephone number, and e-mail address of the applicant's attorney. If the applicant is not using an attorney, explicitly state so;

5.3.5 Customer Service number. A telephone number to the applicant's subscriber service center where subscribers may call with questions about the community energy facility's services, including the contract and contract summary;

5.3.6 Consent to jurisdiction. A statement consenting to the jurisdiction of the Delaware courts for acts or omissions arising from the community energy facility's and its agent's activities in the State;

5.3.7 Criminal activities:

5.3.7.1 A statement detailing any criminal activities relating to fraud or financial misconduct, of which the applicant or any of its affiliate interests, officers, and directors (and prior officers and directors who left the applicant's employ less than 3 months before the filing of the application) have been convicted. Any criminal activity disclosure shall include a copy of any order of conviction and restitution;

5.3.7.2 A statement by the community energy facility that it (or its agent) will run criminal background checks on any person engaged to conduct door-to-door sales on its behalf, obtaining and reviewing the criminal history results for crimes committed against a person, from the following searches:

5.3.7.2.1 Delaware state and county courts for crimes committed within the past 5 years;

5.3.7.2.2 A nationwide federal criminal court search, such as the Federal Public Access to Court Electronic Records (PACER) System for crimes committed within the past 5 years;

5.3.7.2.3 The U.S. Department of Justice National Sex Offender Public Registry for crimes committed within the past 10 years; and

5.3.7.2.4 Every other state in which the agent resided during the last 12 months for crimes committed within the past 5 years.

5.3.7.3 Nothing in this regulation shall prohibit a community energy facility from conducting background checks on its agents that are more extensive than the requirements in subsection 5.3.7.2, in accordance with applicable law.

5.3.8 Contract and Contract Summaries. A copy of the applicant's standard contract form that it intends to offer to residential subscribers, and the standard contract summary form it intends to include with its contract for residential subscribers. A contract or contract summary that does not comply with the requirements of Section 8.0 of this regulation or other applicable Delaware laws and regulations may be grounds for rejection of the application. Staff may develop a standard contract summary form that it requires from all applicants;

5.3.9 Marketing materials. A statement by the community energy facility that it (or its agent) will retain copies of all print, broadcast, electronic media, telecommunication, direct mail or in-person written marketing materials, including scripts for telemarketing, advertisements, website presentations, social media posts or advertisements, and any other material of a similar nature, that the applicant (or its agent) will use to market and promote its products to Delaware residential and small commercial customers, and will furnish them to the Commission, DPA, and Consumer Protection Unit upon request. Marketing conducted by a lead generation firm is not exempt from this subsection;

5.3.10 Surety bonds and financial information. A community energy facility bond executed by a company authorized to transact surety business in the State of Delaware by the Department of Insurance. Such bond will permit the Commission to direct that the proceeds of this bond be paid or disbursed to satisfy the applicant's financial obligations to the Commission or other Delaware government entity. The bond will permit a Delaware court to direct proceeds of the bond be paid to a person that has obtained a judgment against an applicant and has previously attempted to collect the judgment through all other means available through the court. The amount of the bond shall be $10,000 plus $25,000 per each megawatt of capacity in excess of 1 megawatt;

5.3.11 Bankruptcy. A disclosure as to whether the applicant, or any of its affiliate interests, or any current or previous officer, director, or manager, has filed for bankruptcy in the past 60 months;

5.3.12 Staff request. Other commercially reasonable indicia of financial capability, upon a request from staff;

5.3.13 Services. A description of the services it plans to offer in the State, including the types of subscribers to be served and services provided;

5.3.14 Experience. A description of the operational experience in community energy facilities of each principal officer, director, or individual responsible for Delaware operations. If no such experience is applicable, the applicant shall identify the means by which the applicant proposes to support its managerial, operational, and financial capabilities for the sale of subscriptions in the State;

5.3.15 Other states. A list of states or federal jurisdictions in which the applicant or any of its affiliate interests has:

5.3.15.1 Been granted approval to sell subscriptions or act as a community energy facility or similar structure, including license or certificate numbers (including those states where a license or approval is not required but where the applicant has sold subscriptions or acted as a community energy facility);

5.3.15.2 Been denied approval to sell subscriptions or act as a community energy facility;

5.3.15.3 Had its authority revoked, modified, or suspended or been found to be in violation of, or is the subject of a pending investigation regarding, a state's laws, rules, or regulations relating to community energy facilities or similar structures;

5.3.15.4 Had any other adverse judicial or regulatory action pertaining to the provision of community energy facility services or the violation of state or federal consumer protection laws, including any formal docketed complaints filed against:

5.3.15.4.1 The applicant;

5.3.15.4.2 Any of the applicant's affiliate interests;

5.3.15.4.3 Any officer, principal, or director of the applicant; or

5.3.15.4.4 Any prior officer, principal, or director serving in that capacity at the time of the judicial or regulatory action; and

5.3.15.5 Entered into a stipulation or consent decree in a formal docketed proceeding in the past 5 years concerning its provision of community energy facility services or the alleged violation of state or federal consumer protection laws in which the community energy facility agreed to pay a civil penalty provide customer restitution, or make changes to its marketing, sales, billing, or collections practices;

5.3.16 Copies of orders. A copy of any document, order, or decree identified in response to subsection 5.3.15;

5.3.17 Copies of settlements. A copy of any settlement, adjudication, or court order with respect to an action filed by a state Attorney General, the Federal Trade Commission, or U.S. Department of Justice concerning the applicant's participation in retail or wholesale energy markets; and

5.3.18 Verification of application for a final certificate to operate. A signed, notarized verification of a principal or officer of the applicant stating that all information in the application is true and correct as filed to the best of the principal's or officer's belief. Where the applicant is a corporation or an association, the verification shall be signed by an officer thereof and notarized.

5.4 Review of the application for final certificate to operate. Staff shall make a recommendation to the Commission to approve or deny the application within 60 days from the date of the completed application. The Commission may choose to approve, approve with conditions, modify, or deny a final certificate to operate to an applicant where it finds that doing so is in the public interest.

5.5 Terms of final certificate to operate. Final certificates to operate are valid until revoked by the Commission pursuant to subsection 14.5 or relinquished by the community energy facility after the requisite notice to the Commission and to its subscribers.

5.6 Incomplete or abandoned applications for preliminary or final certificates to operate. The Commission may reject an application for a preliminary or final certificate to operate that is not complete or that does not contain subsequent information requested by staff within 4 months of a failure by the applicant to respond to such requests.

5.7 Waiver of certification requirements for preliminary or final certificates to operate. Upon the request of an applicant, the Commission may, upon notice and opportunity for comment, for good cause, waive any of the requirements of this regulation that are not required by statute. The waiver may not be inconsistent with the purpose of this regulation, 26 Del.C. § 1001et seq, or state or federal consumer protection laws.

5.8 Changes in application information. Applicants shall inform staff of any changes to the information submitted in the application for a preliminary or final certificate to operate that occur from the time the application is submitted to the time the Commission considers the application. The failure to provide such notice within 15 business days after the change may be grounds for rejection of the application.

5.9 Accuracy of information. Failure to provide accurate and factual information, the submission of false or misleading information, or the omission of material information in any communication with staff or the Commission may be grounds for rejection of an application for a preliminary or final certificate to operate.

26 Del. Admin. Code § 3013-5.0

27 DE Reg. 987 (6/1/2024) (Final)