Update: New York PSC Issues Written Show Cause Order To ESCO, Further Detailing Alleged Behavior

June 18, 2019

Email This Story
Copyright 2010-19 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

The following story is brought free of charge to readers by EC Infosystems, the exclusive EDI provider of EnergyChoiceMatters.com

The New York PSC has issued a written order to show cause to Atlantic Power & Gas, LLC, providing further details of the alleged behavior prompting the order

The PSC's announcement of the order had been first reported by EnergyChoiceMatters.com last week

Previously, on March 13, 2017, the Public Service Commission (Commission) issued a Suspension Order directing Atlantic Power & Gas, LLC to cease marketing to and enrolling residential and non-residential customers unless the Commission authorized the resumption of such activities (see details on the allegations leading to the 2017 suspension order here)

The PSC said in its show cause order that, "On March 4, 2019, Department of Public Service Staff (Staff or the Department) sent a Notice of Apparent Failure (NOAF) to [Atlantic Power & Gas, LLC] identifying apparent violations of the Suspension Order’s conditions for continuing eligibility and the Commission’s Uniform Business Practices (UBP), including the reinstatement of customers to [Atlantic Power & Gas, LLC] without the customers’ authorization."

The PSC said that Atlantic Power & Gas, LLC currently serves residential and non-residential gas and electric customers in the service territories of: Central Hudson Gas & Electric Corporation (Central Hudson), Consolidated Edison Company of New York, Inc. (Con Edison), Niagara Mohawk Power Company d/b/a National Grid, KeySpan Gas East Corporation d/b/a National Grid, and the Brooklyn Union Gas Company d/b/a National Grid NY.

In the order to show cause, the PSC alleged, "Staff’s ongoing monitoring of [Atlantic Power & Gas, LLC]’s migration data provided by Con Edison and Central Hudson indicated to Staff that, after the Suspension Order was in place, [Atlantic Power & Gas, LLC]’s total number of customers appears to have increased during various months in 2017, 2018, and 2019. Further, additional information from Con Edison and National Grid showed that [Atlantic Power & Gas, LLC] continued to enroll new customers, contrary to the terms of the Suspension Order. Based on the monitoring results, Staff issued the NOAF identifying [Atlantic Power & Gas, LLC]’s apparent violation of the Suspension Order’s terms and conditions for continuing eligibility. The NOAF also requested that [Atlantic Power & Gas, LLC] provide the verified customer authorizations for any reinstatements, as required by UBP §§5.D.6. and 5.K.3.4"

In the order to show cause, the PSC alleged, "[Atlantic Power & Gas, LLC] submitted a reply to the NOAF on March 25, 2019, claiming that, although the enrollments may appear to be new customer enrollments, they were either a reinstatement of an existing account or an account for which a return to service from the distribution utility was canceled. Subsequently, National Grid provided Staff with information that four [Atlantic Power & Gas, LLC] customers requested a return to full distribution utility service. Because an ESCO cannot override such a customer’s request, Staff advised [Atlantic Power & Gas, LLC] to drop the customers so that they may return to service by the distribution utility, and to re-rate and issue a credit to those customers."

In the order to show cause, the PSC alleged, "With respect to customers that sought to enroll with another ESCO but were reinstated by [Atlantic Power & Gas, LLC] prior to the new enrollment being processed, [Atlantic Power & Gas, LLC] failed to provide the verifiable customer authorizations in its initial response to the NOAF. Staff reiterated its request for this information in follow up emails to [Atlantic Power & Gas, LLC] on May 6, 2019, and on May 9, 2019. In response, [Atlantic Power & Gas, LLC] provided Staff with letters from customers dated April 27, 2019, and April 29, 2019, for only 18 of the 64 accounts in question, stating that the customers intend to remain with [Atlantic Power & Gas, LLC]. Because these letters were dated well after the alleged initial contact with the customer, and were secured after the pending enrollment was canceled, Staff concluded that [Atlantic Power & Gas, LLC] improperly reinstated these customers."

In the order to show cause, the PSC alleged, "To maintain eligibility to operate as an ESCO in New York, every ESCO must comply with the UBP and all applicable Commission orders. Notwithstanding the Commission's Suspension Order and the UBP, the Department’s investigation provides compelling evidence that [Atlantic Power & Gas, LLC] may be continuing to re-enroll, or reinstate, customers who requested to be returned to the distribution utility by using Electric Data Interchange (EDI) transactions for a new enrollment. Additionally, for customers who enrolled with another ESCO, [Atlantic Power & Gas, LLC] appears to have improperly canceled those pending enrollments without the customer's authorization, both of which would be a violation of a Commission order establishing terms and conditions for [Atlantic Power & Gas, LLC]’s ongoing eligibility."

In the order to show cause, the PSC alleged, "From Staff’s perspective, [Atlantic Power & Gas, LLC]'s response to the NOAF does not provide a sufficient basis for [Atlantic Power & Gas, LLC]’s actions. Rather, Staff concluded that [Atlantic Power & Gas, LLC]’s explanation provided further evidence of improper reinstatement procedures. While the UBPs allow an ESCO to attempt to reinstate a customer who enrolls with another ESCO while that enrollment is pending, reinstatement is not allowed if the customer requests to return to full distribution utility service. The Department has provided credible evidence that [Atlantic Power & Gas, LLC] may be violating the Suspension Order and UBPs by impermissibly re-enrolling such customers. Alternatively, if those re-enrollments were deemed reinstatements, which [Atlantic Power & Gas, LLC] contends they should be, then [Atlantic Power & Gas, LLC] could be in violation of §5.D.6. of the UBP and the Suspension Order by improperly reinstating those customers that intended to return to distribution utility service."

In the order to show cause, the PSC alleged, "Further, with respect to the reinstatement of customers who enrolled with another ESCO, it is Staff’s position that [Atlantic Power & Gas, LLC] has, to date, failed to provide any verifiable customer authorizations, as required under UBP §§5.D.6 and 5.K.3. Pursuant to the UBP and Commission orders, canceling a customer's pending enrollment with another ESCO without the required customer authorization is considered an impermissible 'slam.' The after-the-fact letters dated April 27, 2019, and April 29, 2019 that [Atlantic Power & Gas, LLC] provided to the Department do not appear to meet the requirements for proof of customer authorization of a reinstatement under the UBP. Sections 5.D.6. and 5.k.3. of the UBPs require the ESCO to obtain (and retain) specific customer authorization before it can cancel a pending enrollment during the contested period. Based upon these facts, credible evidence exists to support an Order to Show Cause concerning whether [Atlantic Power & Gas, LLC] violated the UBP by improperly reinstating customers with [Atlantic Power & Gas, LLC] without the customers’ authorization. This is one of the same potential violations of the UBP that led to the Commission’s Suspension Order revoking [Atlantic Power & Gas, LLC]’s ability to market to and enroll residential and non-residential customers."

Under the PSC's show cause order, Atlantic Power & Gas, LLC was directed to show cause, within 30 days, why, based upon the allegations described above, the Commission should not revoke Atlantic Power & Gas, LLC's eligibility to operate as an ESCO in New York, or impose other consequences.

Case 16-M-0618

ADVERTISEMENT
NEW Jobs on RetailEnergyJobs.com:
• NEW! -- Operations Manager -- Retail Supplier
• NEW! -- Compliance Manager -- Retail Supplier
• Retail Energy Operations Analyst