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RESA, Direct Energy Seek Interlocutory Review of New York ALJ Orders on Scope, Schedule of Retail Mass Market Review

May 31, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The Retail Energy Supply Association and Direct Energy Services, LLC submitted to the New York PSC an emergency request for interlocutory review of several recent orders from the presiding ALJs concerning the scope and schedule of the retail energy mass market evidentiary review proceeding.

Generally, RESA and Direct sought interlocutory review of rulings addressing prior RESA motions concerning the notice for the proceeding, the issue of confidential protection for various discovery responses, whether discovery related to large C&I service is within the scope of the proceeding, whether discovery related to ESCO profitability is appropriate, and the scheduling of the proceeding in light of these issues.

"Given the grossly inefficient, burdensome and unworkable nature of the Track 1 evidentiary hearing proceedings (the 'Evidentiary Proceeding' or 'Track 1') to date, the Appellants strongly urge that this request be given expedited attention by the Commission so that the Commission’s goals of achieving a comprehensive enhancement, reformation and rebranding of the retail energy markets in New York can be accomplished efficiently, equitably, and successfully," RESA and Direct said

"Because compliance with the ALJs’ Rulings would allow Track 1 to continue based on a defective notice and would expose competitively sensitive pricing information and other confidential business records of RESA members and their Commercial and Industrial ('C&I') customers, the Appellants respectfully request that the Commission stay the Evidentiary Proceeding for all parties until 15 days after the Commission’s review and decision on this Request," RESA and Direct said

"[T]he current Evidentiary Proceeding is not providing an efficient and productive venue for the parties to adequately address the issues identified in the retail mass-markets. The Appellants respectfully ask that the Commission terminate the Track 1 Evidentiary Hearing Process and restructure the Track 2 Collaborative Process to allow the parties productively and efficiently work towards policy reforms for the retail energy mass-markets in New York," RESA and Direct said

RESA and Direct's petition for interlocutory review generally raised arguments and issues that have been previously chronicled in these pages

Of note, RESA and Direct said concerning discovery: "There are also significant discovery issues that remain unresolved due to the unworkable structure and format of this Evidentiary Proceeding. As an example, on February 22, 2017, RESA requested copies of all parties’ responses to Information Requests on the basis that the Commission’s discovery rules provide that responses to interrogatories shall be served on any party who so requests, and ALJ Moreno confirmed that obligation in her February 8 Order. In response, the Joint Utilities sent a letter to the ALJs and the Parties in which they objected to provide certain confidential information including the ESCO keys, even though RESA and its outside consultants are entitled to such information under the terms of the Protective Order. RESA filed a Motion to Compel on Joint Utilities, along with several other motions specific to certain utilities who objected to other RESA Information Requests. In an attempt to resolve these discovery issues, the ALJs scheduled a technical conference on April 19, 2017, followed with a procedural conference on April 26, 2017. As a result of these conferences, the ALJs simply adjourned the due date of the testimony deadline to July 14, 2017, without ruling on RESA Motion to Compel responses from the Joint Utilities or giving any further guidance to the parties in that regard. The pendency of these motions means that, even if the ALJs rule in RESA’s favor, RESA and other parties will still have a severely limited and insufficient amount of time to undertake the analysis that is required to meaningfully participate in these proceedings before testimony is due only 45 days from now. Not to mention that DPS Staff, and other non-ESCO parties, have had access to this same data for months, thereby placing ESCOs in an inequitable position compared to the other parties who are preparing testimony in these proceedings."

Addressing some 143 subpoenas which DPS Staff recently asked be served on ESCOs that are no parties to the evidentiary review proceeding, RESA and Direct said: "[W]ithin the last few months, several ESCOs requested to be removed from the Party List with a legitimate concern that the current proceeding is not providing appropriate protection for their highly sensitive competitive market information. Indeed, the number of ESCOs who are not parties to these proceedings far outnumber those who are parties. However, their status as non-parties has not insulated them from the burdens of the Evidentiary Proceeding or the fear that their highly sensitive competitive market information will not be adequately protected. DPS Staff served the same discovery requests on non-party ESCOs and party ESCOs. And while some non-party ESCOs 'voluntarily' responded to such requests, on May 25, 2017, DPS Staff sought authority from the ALJs to serve 143 subpoenas. These subpoenas are targeted at currently undisclosed non-party ESCOs and appear to seek undefined data, much of which is suspected to require non-party ESCOs to disclose significant confidential and proprietary information, including information outside the scope of Track 1 as detailed herein. DPS Staff’s request remains pending."

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