Section 1252(e)(3) of Energy Policy Act of 2005 (EPAct 2005) directed the FERC to prepare and publish an annual report covering six sets of items:
- saturation and penetration rate of advanced meters and communications technologies, devices and systems;
- existing demand response programs and time-based rate programs;
- the annual resource contribution of demand resources;
- the potential for demand response as a quantifiable, reliable resource for regional planning purposes;
- steps taken to ensure that, in regional transmission planning and operations, demand resources are provided equitable treatment as a quantifiable, reliable resource relative to the resource obligations of any load - serving entity, transmission provider, or transmitting party; and
- regulatory barriers to improved customer participation in demand response, peak reduction and critical period pricing programs.
Based on 2013 data from the Energy Information Administration, the report suggests a 37.6 percent overall penetration rate. It also shows a slightly higher percentage of residential customers have an advanced meter (37.8 percent) than do customers in the commercial (36.1 percent) or industrial (35.2 percent) customer classes.
At the same time, the FERC report shows a 4.9 percent drop in nationwide total potential peak reduction from retail demand response programs between 2012 and 2013, or a drop of 1,408 MW of demand response capability. It also notes legal uncertainty over FERC’s final rule on demand response compensation in organized wholesale electric markets, Order No. 745, given that the U.S. Court of Appeals for the D.C. Circuit vacated and remanded that order in Electric Power Supply Association v. FERC, No. 11-1486 (D.C. Cir. May 23, 2014). FERC's appeal of the EPSA v. FERC decision is now pending before the U.S. Supreme Court, with a final decision expected in early 2016.