September 9, 2021

Revisiting eligible customer regulation suspension

Commotion as high tension cable snaps in Lagos

By Sunday Oduntan

A RECENT article entitled ”Investors battle electricity regulator over policy suspension” caught my interest in many ways. Whilst the concerns of the author are misplaced and unfounded, it is compelling to set the records straight on the issues brought forward in the said publication. Notably, it is true that the Eligible Customer Regulation 2017 (the “Regulation”) is derived from the Electric Power Sector Reform Act 2005, which gives the Minister of Power (the “Minister”) the authority to declare the commencement of the Eligible Customers Regime.

The Regulation further empowers the Nigerian Electricity Regulatory Commission to administer the regime, to wit: receiving applications for eligibility customer status, considering/reviewing such applications and granting approval where the stipulated conditions have been met by such applicants. 

The regulation which was made in 2017 and became effective on November 1, 2017, created a framework for certain categories of electricity consumers to contract for power purchase directly from the Generation Companies rather than through the traditional electricity market route which involved the entire electricity value chain: Generation Companies, Nigerian Bulk Trader, Transmission Company of Nigeria and the Distribution Companies.

By Section 7 of the regulation, the category of electricity consumers who can apply for eligible customer status to participate in the regime are as follows: A  customer or group of  end-use customers registered with the Commission for the purpose, whose consumption is more than 2MWh/h over the course of one month, that is connected to a metered 11kV  or 33kV delivery point on the distribution network of a distribution licensee under a Distribution Use of System Agreement with such distribution licensee for the connection and for the  delivery of electrical energy. 

A customer or group of end-use customers registered with the Commission for the purpose, that is connected directly to a metered 132kV or 330kV delivery point on the transmission network under a Transmission Use of System Agreement for the connection and for the delivery of electrical energy. A customer or group of end-use customers  registered with the Commission for the purpose, whose consumption is more than 2 MWh/h over the course of one month, that is connected directly to a metered 33kV delivery point on the transmission network under a TUoS Agreement, and has entered into a bilateral agreement for the construction, installation, and operation of the distribution system used to connect the customer  to the33kV delivery point, with the distribution licensee, licensed to operate in the location where the customer and the33kV delivery point are located; and: A customer or group of  end-use customers registered with the Commission for the purpose, whose consumption is more than 2MWh/h over the course of one month, that is directly connected through a metered delivery point, to the generation facility of a generation licensee it intends to purchase electrical energy from and has entered into a bilateral agreement for the construction, installation and operation of the distribution system used to connect the customer to the generation  facility with the distribution licensee, licensed to operate in the location where  the generation facility and the customer are located. 

Furthermore, Section 9 of the regulation requires that applicants for eligibility status shall post a Letter of Credit or Bank Guarantee in favour of the Market Operator in accordance with the market rules to cover market administration charges, TUoS charge and DUoS charge and other charges as may be approved by the commission. Summarily, the conditions that must be satisfied by an applicant for eligible customer status are: a)  meeting the requisite energy demand/usage requirement; b.proof of excess capacity by the GENCOs to supply energy to the eligible customer; c) payment of requisite charges and fees to exist; d) procurement and submission of requisite documents; and e) need for eligibility declaration status by NERC on the Eligible Customer upon fulfilment of the requisite requirements.

Sadly, in a sweeping attempt to mislead the unsuspecting readers, the author in reference merely mentioned in passing that: “According to sources, the template of the policy indicates that electricity consumers, who feel dissatisfied with the services of the DisCos in their area, can request and receive alternative electricity distribution services from any of the available Eligible Customer vendors in their area if their power requirement is over 2 Megawatts.”

As contrasted in the preceding paragraphs, this sweeping attempt by the author is shallow and misleading, as it fails to reference the conditions which the stakeholders must fulfil before NERC would approve Eligible Customer status for them as required by the regulation. This is particularly so as the author indicates the reason advanced by NERC according to its Dr. Usman Abba Arabi as follows: “…What is happening is that there were a lot of illegal connections. A lot of connections that were not approved by the Commission. This Eligible Customer thing was suspended pending when these issues are sorted out…” 

Additionally, the article deliberately fails to state in clear terms that the stakeholders behind it (though named), had not met and fulfilled the requirements for NERC to grant them eligible customer status. It, however, proves that they, in collusion with the GenCo, have indeed committed an illegality by declaring themselves eligible customers and contracted bilaterally outside the extant Regulation.

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This illegality is, of course, punishable under the law. Flowing from the above, and to further clarify, there were so many misgivings in the article in reference, whilst the minister did issue a directive to the Commission, declaring the commencement of the eligible customer regime and specifying the class or classes of end-use customers that would constitute eligible customers in compliance with Section 27 of the ESPRA, the fact is that till date, no company has met or fulfilled the conditions stipulated in the Regulation for the assumption of eligible customer status. Hence, available records indicate that NERC has not approved any application for eligible customer status.

It is clear that NERC has been unduly lenient with the stakeholders behind this article because, over the last four years, as they blatantly and brazenly disregarded, refused, and neglected to comply with several directives from NERC to follow the due process under the Regulation to obtain the requisite NERC Approval. These companies proceeded to arrogate the powers of NERC to themselves by vesting in themselves eligible customer status and continued the unlawful and illegal operations over the years unperturbed.

The illegal and unlawful operations of these companies and the GenCos involved are direct cannibalisation of the electricity market and the entire value chain. It has as a matter of fact, unleashed unintended consequences on other categories of electricity customers by exposing them to payment of higher electricity tariffs, as a result of the elimination of the embedded cross-subsidy mechanism in Multi-Year Tariff Order, MYTO.

As of today, the Nigerian Electricity Supply Industry, NESI, is already bedevilled by huge losses with grave attendant consequences and liquidity issues, as monies paid by these illegal and unlawful self-proclaimed “eligible customers” do not go through the value chain and the cash waterfall that services Gas Companies, GasCos, GenCos, Market Operator, NBET and the DisCos.

Rather the cash revenues generated go strictly to the pockets of the respective GenCos to the detriment of the entire value chain, thus a real and patent threat to the medium-cum-long term sustainability of the market. Essentially, these companies and their supplier GenCos created an illegal and unlawful private market within a regulated market outside of the extant rules, a situation that threatens the revenue assurance and viability of the entire sector.

In the circumstance NERC, having duly noticed the damaging impact of these illegal “eligible customers” on the electricity market and the entire value chain, had to issue a directive with Ref. No: NERC/REG/OCFML/APPR/EC/2655/068, dated July 7, 2021, to the Transmission Company of Nigeria, TCN, to transfer back to the Distribution Companies all electricity customers that failed to obtain eligibility status under its Eligible Customer Regulations 2017-Regulation No. NERC 111.

In response to the author’s bogus and spurious allegations in the publication over the performance of the DisCos, the DisCos indeed recognise the relevant provisions of the ESPRA and the Regulation as well as their objectives. There is, however, no doubt that there has been improvements in DisCos’ performance whilst several initiatives in collaboration with the Federal Government through the Central Bank of Nigeria, CBN, and other intergovernmental stakeholders are being adopted to further increase efficiencies of the DisCos and indeed the entire value chain to achieve clean, safe and uninterrupted power supply to Nigerians. The Regulation is, therefore, a welcome initiative provided that the stakeholders comply with the laid down procedures and requirements.

In response to the insinuation that NERC and the DisCos are colluding to frustrate the implementation of the Regulation, I can state unequivocally that this is untrue, unfounded, preposterous, and irresponsible of the stakeholders who have failed to meet the requirements of the Regulation and attempting to pass the buck.

In fact, to fault NERC (who have been unduly lenient with them) as they have, is undermining the powers of the Commission as the regulator of the Nigerian power sector, vested with the requisite authority to ensure sanity in the Nigerian Electricity Market, NEM, and NESI as provided by the EPSRA.

For the purpose of further clarity, NERC has not cancelled the Regulation as claimed in the article. The directive is simply to stop the illegality that has been perpetrated by these unscrupulous companies and their supplier GenCo who have gone rogue for four years unchecked. No regulated market is sustainable where market participants are allowed to go rouge and create their own set of arbitrary rules.

In conclusion, there is no doubt that the author and the stakeholders behind the article in reference have by the article, admitted to the whole world that in collusion with their supplier GenCos, they went rogue, breached the extant Regulation and concomitantly the Act, undermined NERC, cannibalized the regulated electricity market for which NERC ought to have long imposed sanctions of a deterrent nature and indeed prosecuted them.

Oduntan is the Executive Director, Research & Advocacy Association of Nigerian Electricity Distributors, ANED

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