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RESA, IGS Seek Clarification on Affirmative Consent Required Under N.Y. PSC Reset Order

March 28, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Retail Energy Supply Association and IGS Energy sought rehearing of the New York PSC's retail markets reset order, and in such petition also sought clarification of the affirmative consent required under the order to move customers to certain compliant products

RESA and IGS sought rehearing on the same grounds on which they and other ESCO parties sought relief from a court with respect to the order, arguing that the PSC lacks jurisdiction over ESCO pricing and alleged that the order violated state notice requirements.

Aside from alleging that the reset order is arbitrary and capricious in a number of provisions, RESA and IGS also sought clarification of when affirmative consent is required to move customers to a compliant product, should the order stand.

The reset order provides that, "ESCOs must receive affirmative consent from a mass market customer prior to renewing that customer from a fixed rate or guaranteed savings contract into a contract that provides renewable energy but does not guarantee savings. Finally, ESCOs that currently serve mass market customers through month-to-month variable rate agreements must enroll those customers in a compliant product at the end of the current billing cycle or return the customers to utility supply service."

"[T]here has been considerable confusion among not only ESCOs, but also among Staff members, regarding the meaning of this requirement. On February 26, 2016, Staff released a 'Draft Guidance Document' to assist ESCOs in understanding certain aspects of the Order. The Guidance Document was modified and re-issued twice over the next five days," RESA and IGS said.

"In the February 26 version of the Guidance Document, Staff explained that the above-quoted aspect of the Order requires ESCOs to obtain affirmative consent (to transition to a 30% renewable product that does not guarantee savings) only from mass market customers with either a 'fixed rate product' or a 'guaranteed savings product.' That February 26 Guidance Document clarified that the Order did not require affirmative consent to transition customers from month-to-month variable rate agreements to a 30% renewable product," RESA and IGS said.

"Several days later, however, under the February 29 version of the Guidance Document, Staff backtracked, and stated that the Order also required customer consent to transition customers from variable rate products to a 30% renewable product," RESA and IGS said.

"During Staff’s meeting with ESCOs on February 29th, however, Staff continued to interpret the Order as not requiring affirmative consent from customers transitioning from month-to-month variable rate contracts to a 30% renewable product," RESA and IGS said.

"Finally, in the March 2 version of the Guidance Document, Staff changed its interpretation again and stated that in all cases, ESCOs must receive affirmative consent prior to transitioning customers to a 30% renewable product that does not guarantee savings, including from customers with month-to-month variable rate contracts. The confusion exhibited by Staff alone shows that the purported rule requiring affirmative consent warrants clarification from the Commission. Further, the UBP already provides for when affirmative customer consent is required, and the Commission has provided no evidence that the UBP requirements are insufficient to protect consumers," RESA and IGS said.

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