Sec. 216. SUPPLY AND INSTALLATION BY PUBLIC UTILITIES

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## SEC. 216 SUPPLY AND INSTALLATION BY PUBLIC UTILITIES ###

(a)Prohibition on Supply and Installation by Public Utilities Except as provided in this section, no public utility may supply or install a residential energy conservation measure for any residential customer. ###

(b)Exemption From Prohibition on Installation The prohibition contained in subsection

(a)shall not apply to the energy conservation measures referred to in section 210(11)(B) or 210(11)(C), or devices associated with load management techniques for the type of energy sold by the utility. ###

(c)Exemption From Prohibition on Supply and Installation ####

(1)The prohibition contained in subsection

(a)shall not apply to any residential energy conservation measure supplied or installed by a public utility through contracts between such utility and independent suppliers or contractors where the customer requests such supply or installation and each such supplier or contractor— #####

(A)is not subject to the control of the public utility, except as to the performance of such contract, and is not an affiliate or a subsidiary of such utility; and #####

(B)if selected by the utility, is selected in a manner consistent with paragraph (2). ####

(2)As provided under the provisions described in section 213(b)(2)(D), activities of a public utility under paragraph (1)— #####

(A)may not involve unfair methods of competition or other activities described in subsection (g)(2); #####

(B)may not have a substantial adverse effect on competition in the area in which such activities are undertaken nor result in providing to any supplier or contractor an unreasonably large share of contracts for the supply or installation of residential energy conservation measures; #####

(C)shall be undertaken in a manner which provides, subject to reasonable conditions the utility may establish to insure the quality of supply and installation of residential energy conservation measures, that any financing by the utility of such measures shall be available to finance supply or installation by any contractor or to finance the purchase of such measures to be installed by the customer; #####

(D)to the extent practicable and consistent with subparagraphs (A), (B), and (C), shall be undertaken in a manner which minimizes the cost of residential energy conservation measures to such customers; and #####

(E)shall include making available upon request a current estimate of the average price of supply and installation of residential energy conservation measures subject to the contracts entered into by the public utility under paragraph (1). ###

(d)General Exemptions ####

(1)Except as provided in paragraph (2), the prohibitions contained in subsection

(a)shall not apply to— #####

(A)the supply, installation, or financing of those specific residential energy conservation measures which the Secretary determines were being installed or financed by a public utility on the date of enactment of this Act; #####

(B)supply, installation, or financing activities which the Secretary determines were broadly advertised or for which substantial preparations were completed on or before the date of enactment of this Act; or #####

(C)supply, installation, or financing activities by a public utility with respect to energy conservation measures where a law or regulation in effect on or before the date of enactment of this Act either requires, or explicitly permits, the public utility to carry out such activities. ####

(2)Effective July 1, 1987, subparagraphs

(A)and

(B)of paragraph

(1)shall not apply to the supply or installation of residential energy conservation measures other than measures which the Secretary determines were being installed or supplied by a public utility during the 12-month period ending June 1, 1985. ###

(e)Waiver The Secretary may, upon petition of a public utility, supported in the case of a regulated utility by a Governor, waive in whole or in part the prohibitions contained in subsection

(a)with respect to the utility if such utility demonstrates to the satisfaction of the Secretary that, in carrying out prohibited activities under subsection (a), fair and reasonable prices and rates of interest would be charged and the Secretary finds, after consultation with the Federal Trade Commission, that such activities would not be inconsistent with the prevention of unfair methods of competition and the prevention of unfair or deceptive acts or practices. ###

(f)Applicability of Section 215 Any public utility carrying out activities permitted under subsection

(b)or

(c)or subsection (d)(1)(B) or

(e)of this section shall be subject to all the requirements of section 215 with respect to such activities. A public utility which is carrying out activities permitted pursuant to subsection (d)(1)(A) shall, within such reasonable period as may be prescribed by the Secretary, be subject to all such requirements of section 215 with respect to such activities. A public utility carrying out activities permitted pursuant to the exemption contained in subsection (d)(1)(C) shall not be subject to the requirements of section 215 with respect to such activities. ###

(g)Authority To Monitor and Terminate Certain Activities by Utilities ####

(1)The Secretary, in consultation with the Federal Trade Commission, shall monitor financing, supply, and installation activities of public utilities in connection with residential energy conservation measures and shall report annually to Congress on such activities. Each such report shall contain the comments of the Federal Trade Commission. ####

(2)No public utility that has an exemption or waiver under this section may carry out under this Part and pursuant to an exemption or waiver any activity if the Federal Trade Commission, pursuant to subsection (h), or a State regulatory authority, pursuant to State law, has determined that such activity involves— #####

(A)charging unfair or unreasonable prices or rates of interest with respect to the supply and installation of residential energy conservation measures; or #####

(B)engaging in unfair methods of competition or unfair or deceptive acts or practices with respect to such supply and installation. ###

(h)Enforcement ####

(1)For the purpose of determining whether a public utility which has an exemption or waiver under this section is engaging in any activity described in subsection (g)(2), a person alleging injury from any such activity may request— #####

(A)to the extent authorized under State law, a State regulatory authority; or #####

(B)in any case described in paragraph (2), the Federal Trade Commission, to review an activity being carried out by such a public utility in whole or in part in such State. Such request shall contain a description of the actions of the utility alleged to constitute an activity described in subsection (g)(2); an allegation that an injury has been incurred by the person requesting the review; and an allegation that such injury resulted from an activity described in subsection (g)(2). ####

(2)The Federal Trade Commission may review an activity of a public utility as a result of a request made under paragraph

(1)only if— #####

(A)a State regulatory authority has— ######

(i)informed the resident making the request that it will not review such activity for the purpose described in paragraph (1); or ######

(ii)within the 90-day period beginning on the date on which the request to review such activity was made to the State regulatory authority by the resident, failed to inform the resident that it will review such activity for such purpose; or #####

(B)a State regulatory authority has informed the resident that it will review such activity for such purpose but has failed to initiate a proceeding for such purpose during the 6-month period beginning on the date on which the request to review such activity was made to the State regulatory authority by the resident. ####

(3)If a request for review is made to the Commission in any case described in paragraph (2), and the Commission determines, on the basis of the information provided, that there is reason to believe that the public utility is carrying out an activity described in subsection (g)(2), the Commission shall issue and serve upon such utility a complaint and a notice of hearing and conduct a proceeding in accordance with section 5(b) of the Federal Trade Commission Act to determine if such an activity is being carried out by the utility. ####

(4)If the Commission makes a determination pursuant to a proceeding described in paragraph

(3)that a public utility is carrying out an activity described in subsection (g)(2) of this section, the Commission shall, utilizing the authority of the Commission to enforce prohibitions made by section 5 of the Federal Trade Commission Act, take appropriate action to enforce the prohibition in subsection (g)(2) of this section. ####

(5)Any violation of a prohibition contained in this section other than a violation of subsection (g)(2) shall be treated, for purposes of section 219(d), as a violation of a plan promulgated under section 219(a). ###

(i)Tax Treatment The value of any subsidy provided by a utility to any residential customer for the purchase and installation of residential energy conservation measures shall not be included in the gross income of such customer for purposes of the Internal Revenue Code of 1954, and such customer shall not receive any increase in basis under the Internal Revenue Code of 1954 which is attributable to any such subsidy. **[**[42 U.S.C. 8217](/us/usc/t42/s8217)**]**

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42 USC 8217

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Sec. 216

SUPPLY AND INSTALLATION BY PUBLIC UTILITIES

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