2010-17159. EnerNOC, Inc. v. FirstEnergy Corp.; Notice Requiring Protective Order and Establishing Answer Date

July 8, 2010.

On April 30, 2010, EnerNOC, Inc. (EnerNOC) filed a Complaint in this proceeding naming FirstEnergy Corp. (FirstEnergy) as the respondent (April 30 Complaint). On May 11, 2010, EnerNOC, Inc. and FirstEnergy (collectively, the Parties) filed an expedited joint motion to suspend the answer date (Joint Motion), noting that the Parties were working on a solution that would permit use, in this proceeding, of certain materials subject to protection in an on-going proceeding before the Public Utilities Commission of Ohio.

On May 14, 2010, the Commission issued a notice suspending the answer date in this docket, as requested by the Parties (May 14 Notice). In addition, the Commission informed the Parties that the submission, treatment and/or exchange of privileged information in this proceeding would be subject to the requirements of 18 CFR 385.206(e) and would therefore require the submission of a proposed protective agreement.

On July 1, 2010, EnerNOC submitted a supplemental complaint filing (July 1 Supplemental Complaint Filing), under seal, along with a redacted version. EnerNOC requests that its submission, under seal, be accorded confidential treatment, pursuant to 18 CFR 388.112 (2010). EnerNOC further states that a portion of its confidential submittal (Attachment 2) is a data response subject to an existing protective agreement.

EnerNOC's July 1 Supplemental Complaint Filing does not include a proposed form of protective agreement applicable to this proceeding. As indicated by the May 14 Notice, this is required by 385.2069 (e) of the Commission's regulations. Nor does EnerNOC address the means by which the parties to this proceeding will be entitled to review material submitted under seal, or the extent to which the existing protective agreement addresses this matter. Accordingly, EnerNOC is hereby directed to provide to FirstEnegy and to any other entity (at its request) that has filed a motion to intervene, herein, a proposed form of protective agreement that can be used to obtain an unredacted version of EnerNOC's July 1, 2010 submittal and any other submittal filed under seal. The Commission will require EnerNOC to provide that protected agreement by July 15, 2010. The time period for filing answers, protests and/or comments on EnerNoc's April 30 Complaint and the July 1 Supplemental Complaint Filing will be extended to August 4, 2010.

Kimberly D. Bose,

Secretary.