ESCO Responds To Complaint Filed At New York PSC By Retail Supplier

December 9, 2019

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

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Median Energy Corporation has filed a response to a complaint filed at the New York PSC by Atlantic Power & Gas, LLC (APG) in which Atlantic had alleged that Median violated the UBP and the General Business Law ('GBL') (the 'Complaint') in enrolling a customer

As previously reported by EnergyChoiceMatters.com, Atlantic Power & Gas alleged, "Median enrolled one of APG’s longstanding customers ('the Customer') without authorization, causing considerable damage to the Customer, as well as financial and reputational harm to APG’s business." See more background on the complaint here

In its response, Median said that, "Median respectfully requests that the Department of Public Service (the 'Department') reject the Complaint for the following reasons: 1) the underlying alleged dispute is between a retail customer and an energy services company ('ESCO'), making the dispute resolution processes in UBP § 8 explicitly unavailable here; 2) the Complaint does not satisfy UBP § 8.B.2’s demanding threshold for the 'Expedited Process' that Atlantic purported to commence the Complaint under; and/or 3) the Complaint is plainly without merit because Median did not enroll the subject retail customer ('the Customer') without authorization in violation of the UBP or the GBL."

Median said that the dispute resolution processes in UBP § 8 are explicitly unavailable

"The UBP § 8 dispute resolution processes are only available 'to resolve disputes relating to competitive energy markets involving utilities, ESCOs and/or Direct Customers...' Further, UBP § 8 states that these processes 'are not available to resolve disputes between retail customers and ESCOs.' Because the underlying purported violations of the UBP and GBL are alleged disputes between a retail customer (i.e., the Customer) and an ESCO (i.e., Median), the disputes [sic] resolution processes in UBP § 8 are explicitly unavailable, and the Complaint should therefore be rejected," Median said

"The Complaint contains allegations of a retail customer’s dispute with an ESCO. Specifically, the Complaint is devoted to a narrative of the Customer allegedly being enrolled with Median without authorization (i.e., 'slamming') and even seeks relief on the Customer’s behalf. As an initial matter and as demonstrated below, there is documentary proof that Median did not enroll the Customer without authorization. Even if that was not the case, however, the alleged dispute underpinning the Complaint is the Customer’s against Median for being slammed, not Atlantic’s against Median. Simply put, Atlantic cannot co-opt the Customer’s alleged dispute with Median to avail itself of the dispute resolution processes in Section 8 of the UBP. For these reasons, the Complaint should be rejected," Median said

Median also said that, "the complaint does not satisfy UBP § 8.b.2’s threshold for the 'expedited process' that Atlantic purported to commence the complaint under."

"UBP § 8.B.2 establishes an 'Expedited Process' for reviewing and resolving disputes relating to competitive energy markets involving utilities, ESCOs and/or Direct Customers. Importantly, this 'Expedited Process' is only available when 'an emergency situation arises to justify immediate resolution of a dispute...' An 'emergency situation' is defined as 'a threat to public safety or system reliability or a significant financial risk to the parties or the public.' Because the Complaint does not and cannot allege any 'threat to public safety or system reliability' and plainly fails to allege 'a significant financial risk to the parties or the public,' in the event that the Department determines that the Complaint was properly commenced under UBP § 8.A, it should nevertheless be rejected for failure to satisfy UBP § 8.B.2’s demanding threshold," Median said

"Atlantic alleges that Median damaged Atlantic by costing it the Customer’s 'associated revenue.' Putting aside Atlantic’s failure to quantify this alleged financial harm, on its face, the alleged loss of a single residential customer simply does not rise to the UBP’s demanding threshold of a 'significant financial risk to the parties.' For this reason as well, the Complaint should be rejected," Median said

Median said that it did not enroll the customer without authorization

"The Customer was enrolled as a Median customer by a third-party marketer earlier this year. The marketer provided Median with a signed Residential Combined Sales Agreement (the 'Agreement') and copy of the Customer’s driver license. As a result, Median enrolled the Customer on August 13, 2019. On September 4, 2019, Median received a cancellation notice from the utility (i.e., Consolidated Edison Company of New York, Inc.) through an electronic data interchange ('EDI') transaction. Median subsequently returned the Customer to utility service. In sum, Median did not enroll the Customer without authorization," Median said

Median said that Atlantic's requested relief of re-enrollment with Atlantic is unavailable in this case

"Among other requested relief, Atlantic seeks to 'permit the Customer to re-enroll with the service provider of their choice (APG).' However, the fact that the Customer cannot reenroll with Atlantic following her return to utility service is, at best, irrelevant to the Complaint and, at worst, further demonstrates that Atlantic is inappropriately attempting to utilize the dispute resolution processes in UBP § 8. As the Department is well aware, Atlantic has been the subject of an unrelated three-year enforcement proceeding at the Commission concerning unauthorized enrollments and other UBP violations. This proceeding has resulted in, among other things, Atlantic being suspended from marketing to and enrolling 'residential and nonresidential customers until the Commission orders otherwise.' Atlantic’s only avenue to potentially lift the Commission’s suspension of its marketing to and enrollment of customers is in the Commission’s enforcement proceeding, not in this backdoor attempt to use a co-opted retail customer complaint against another ESCO to try to invoke the dispute resolution processes in UBP § 8.15 In other words, the requested relief of reenrollment with Atlantic is unavailable here," Median said

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