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N.Y. PSC Secretary Orders Public Release of Individual ESCO Pricing Data

June 27, 2016

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

The Secretary of the New York PSC has denied an appeal from several ESCO groups concerning a Records Access Officer (RAO) ruling which had held that the release of ESCOs' historic pricing was not subject to confidential protection. The Secretary ruled that certain average pricing data is not entitled to trade secret status or confidential protection.

As previously reported, the PSC had directed in February 2014 that ESCOs file, "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: i) residential price fixed for a minimum 12 month period; ii) residential variable price; iii) small non-residential price fixed for a minimum 12 month period; and iv) small non-residential variable price."

Such order's applicability to non-residential customers was subsequently stayed, and the requirement for ESCOs to file such average historic pricing for non-residential customers was stayed.

In the PSC's February 2014 order, the Commission had said that it would publish comparative pricing information for the above-identified categories, specifying that, "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."

As a result, ESCOs began submitting reports with the following categories of information: (1) the products with no energy-related value-added services (products or commodity-only products) that the ESCO sold to residential customers in specific geographical areas, (2) the average price charged by the ESCO for each product, (3) and customer counts.

Notwithstanding the PSC's indication that it would release the data publicly (since the order was being appealed), ESCOs sought trade secret protection for their filings. While the PSC initially did not publish the average ESCO-specific pricing data, PSC Staff indicated in December 2015 that it would soon begin publishing the data.

The Secretary noted that the Records Access Officer specifically informed ESCOs in December 2015 that the portions of the reports that the Department contemplated disclosing do not include customer counts, and also do not include prices at which each product was sold

"Only the first and second categories of information would be disclosed in the list being developed by the Department. Accordingly, the issues here are whether the participants in the proceeding before the RAO met their burden of establishing that the compilation of average prices of the commodity-only products offered by each submitting ESCO to residential customers in specific geographical areas in 2014 and 2015, without customer counts and actual prices, should be exempted from disclosure under POL §§87(2)(d) and 89(5)(e)," the Secretary said

The Secretary found that such average pricing information is not entitled to trade secret or confidential status, generally finding that ESCOs' arguments in favor of confidential protection were, "conclusory and unsupported by sufficient evidence."

For example, the Secretary said that RESA, "submitted no specific, persuasive evidence that disclosure of the compilation of average prices of commodity-only products each ESCO sold in 2014 and 2015, excluding customer counts and actual prices, would be likely to cause substantial competitive injury to the submitting ESCOs."

"[G]iven that average prices are not prices at which a product is sold, RESA’s filings are insufficient to meet its burden, as they lack evidentiary details regarding how competitors can use the average prices of products each ESCO sold in 2014 and 2015, without customer counts, 'to identify the individual disclosing ESCO’s proprietary pricing strategy, proprietary margin strategy, and proprietary hedging strategy,'" the Secretary said

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