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N.Y. Rules That ESCO Historic Pricing Shall be Made Public

February 2, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Karen Abbott • kabbott@energychoicematters.com

The New York PSC Records Access Office has denied confidential treatment for residential historic pricing that ESCOs have been required to file with the PSC since early 2014.

In a February 2014 order, ESCOs were directed to file with the PSC certain historic pricing information for dissemination to the public consisting of quarterly reports including a separate average unit price for products with no energy-related value-added services for each of four groups of customers and by geographic area. A subsequent order stayed this requirement for non-residential service, so ESCOs have only been required to report the historic prices for residential service.

More specifically, the February 2014 order (as amended by the stay) provided that ESCOs file separate average unit prices for products with no energy-related value-added services for a: i) residential price fixed for a minimum 12 month period; and ii) residential variable price. The PSC had said that the averages should be weighted by the amount of commodity sold at each price within each category. ESCOs were also directed to file the number of customers purchasing products in those categories.

In the February 2014 order, the PSC explained how it would publicly post the ESCO pricing information as follows:

"We now confirm our intention ... to publish comparative pricing information for the categories identified above. We anticipate development of a list of the average price billed for each ESCO, separately for consumers in specific geographic areas of a utility service territory. We expect to sort the list based on average price, and organize ESCOs into quartiles, based on the average price charged to customers in the historical period. For the category of variable priced products with no energy-related value-added attributes, we anticipate that comparable information regarding utility charges will also be presented. The utility information will be adjusted to account for differences between how ESCOs and utilities charge for bill processing and other charges in order charges in order facilitate a direct comparison."

However, ESCOs sought confidential treatment when filing the historic pricing reports, and PSC Staff only in December 2015 announced its intention to begin publishing the pricing publicly as contemplated by the February 2014 order. The Records Access Officer also clarified that Staff was not seeking to publish individual ESCO customer counts, though ESCOs questioned how this would be achieved given the current form in which the prices are reported.

In response to Staff's statement of intent to begin publishing the historic pricing, ESCOs were given another opportunity to justify their requests for confidential treatment. The Records Access Officer (RAO) has denied these latest confidentiality requests.

In a February 1 determination, the RAO said, "None of the 11 [ESCO] submitters prove the existence of a trade secret."

"The ESCOs ... failed to either adequately address the six factors [established in precedent] used in making a trade secret determination or to demonstrate that disclosure of the information would be likely to cause substantial injury to their competitive position and, therefore, have not met the burden of proof they bear pursuant to POL §89(5)(e)," the RAO said

"The ESCOs did not meet their burden here as mere conclusory allegations, without factual support, are insufficient to sustain non-disclosure," the RAO said

"One of the key factors here is that all ESCOs operating in New York will be subject to this Determination, just as they are currently subject to the Retail Markets Order. The argument that one competitor will be in a better position than another is misplaced since all ESCOs operating in New York State will be on the same, level playing field with respect to the disclosure of information required by the Retail Markets Order. Gas and electric utilities are also subject to price reporting with DPS and their prices are reported on the agency’s Power to Choose website," the RAO said

"Further, the data that will be released will consist of an average, not a specific price associated with a specific ESCO. Even if prices were publicized, only the formula and thought process that went into the compilation of that price structure might arguably fit into a trade secret discussion. While several of the parties raised the issue of reverse engineering, it is simply not possible to reach that conclusion with annual average prices and the absence of customer counts," the RAO said

"In light of the forgoing, the information claimed to be trade secrets or confidential commercial information does not warrant an exception from disclosure and the request for continued protection from disclosure is denied," the RAO said

The RAO's determination may be appealed

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