The American Recovery and Reinvestment Act of 2009 (ARRA) charged the Federal Communications Commission (FCC) with developing a national broadband plan (the Plan) to ensure that all people of the United States have access to broadband capability. The ARRA specifically required the Plan to consider broadband’s role in advancing energy independence and efficiency. The FCC submitted its Plan to Congress on March 17, 2010. The Plan’s recommendations for advancing energy efficiency focus on the role of Broadband in supporting a nationwide Smart Grid that enables customers to make more efficient choices about energy supply and better management of the grid. Two of the recommendations are directed at state regulation of energy supply.

First, the FCC recommends state public utility commissions (PUCs) “ensure that utilities’ incentives do not lead them to make suboptimal communications and technology decisions.” Plan, 270. This recommendation is premised on the FCC’s concern that while commercial networks may be capable of supporting mission-critical applications for Smart Grids, “many large utilities have economic disincentives to use commercial networks and may be making suboptimal choices.” Plan, 270. The economic disincentive, according to the FCC, is the “guaranteed profits on the assets” regulated utilities employ. The FCC recommends PUCs “consider letting recurring network operating costs qualify for rate of return similar to capitalized utility-built networks” consistent with the ARRA. Plan, 270; See 16 U.S.C. § 2621(d)(18)(B).

Second, the FCC recommends that PUCs “require electric utilities to provide consumers access to, and control of, their own digital energy information, including real-time information from smart meters and historical consumption, price and bill data over the Internet.” Plan, 274. PUCs are “strongly” encouraged to require the information and to include “customers’ generation mix and emissions data in as close to real time as possible.” Plan, 274. The FCC believes this data will encourage customers to make wiser choices about the electricity they consume and cautions that “[s]tates and utilities should not wait for full smart meter deployments to take these steps.” Plan, 274. The Plan theorizes that the data could be made available to home purchasers so energy consumption can be factored into their decision making process and to the federal government to evaluate its energy efficiency initiatives.

The FCC believes the information should be available in a non-discriminatory fashion to the consumer and its authorized third party and should be provided in standardized, machine-readable formats. The FCC recommends that Congress consider national legislation to cover consumer privacy and the accessibility of energy data if states fail to develop reasonable policies over the next 18 months. Plan, 274. The Federal Energy Regulatory Commission (FERC) is also encouraged to adopt accessibility standards as a model for the states.

The Plan’s recommendations do not have the force of law and are not mandates to PUCs to consider these issues. The efforts PUCs will take, if any, to investigate the FCC’s recommendations are not clear at this time.