ESCO Seeks Clarification Of NY PSC End Of Green Gas Waiver, Timeline

August 15, 2022

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Copyright 2010-21 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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Family Energy, Inc. filed a petition for rehearing, clarification, and stay of the New York PSC's July 15 order which had declined to extend the waivers, from the otherwise applicable mass market pricing limits, for green gas products, which had previously been provided to certain ESCOs for legacy customers

See background on the PSC's order denying extension of the waivers here

Family Energy, as part of its rehearing request, first noted that the language of the July 2022 Order, "appears to modify prior statements of the Commission in the September 2020 Order on rehearing clarifying the December 2019 Order regarding inapplicability of the affirmative consent requirement to guaranteed savings products."

Specifically, Family Energy said that, "As clarified on rehearing, the December 2020 Order does not require affirmative consent to renew a customer onto any product that guarantees savings. Specifically, the Commission stated that it: 'hereby clarifies that renewal of a variable rate product that guarantees savings, or renewal to a product the [sic] guarantees savings, provides an exception to the affirmative consent requirement.'"

"Notwithstanding this well-established rule, the July 2022 Order appears to modify this requirement as regards transitioning customers from green gas products. Specifically, in the discussion an 'orderly transition' the Order requires that: '[p]ursuant to the December 2019 Order, an ESCO may, during this period, offer to switch affected customers to a compliant product for which the ESCO has eligibility to offer, so long as it obtains affirmative consent from the customer prior to the switch. Any affected customers that do not provide such consent within the 120-day period must be returned to full utility service,'" Family Energy said

"Thus, by requiring affirmative consent for all transitioning customers, including those potentially renewed to guaranteed savings products, the July 2022 Order modified its prior rules regarding affirmative consent, without notice or an opportunity to comment, and without publishing a formal rule on notice to the interested parties on the public," Family Energy said in support of rehearing

To the extent rehearing is not granted, Family Energy sought clarification on the issue of the need for affirmative consent in transitioning a customer to a guaranteed savings product. "Because this requirement (and potential changes) may be important in the transition from green gas customers, clarification is requested on this point as well," Family Energy said

As previously reported, the PSC's order directed that, "within 120 days of the effective date of the this Order, transfer any residential and small non-residential customers currently served on a 'green gas' product pursuant to a waiver to either: (1) a product that complies with the Commission’s December 12, 2019 Order Adopting Changes to the Retail Access Energy Market and Establishing Further Process and the Commission’s January 25, 2021 Order Addressing ESCO Petitions Requesting Authorization to Provide Additional Products and Services; or (2) full utility service. Such transfers shall occur upon expiration of the current contract term with the customers and on customers’ regularly scheduled meter reading dates, consistent with the discussion in the body of this Order."

Family Energy sought clarification with respect to the language providing that transfer shall occur upon contract expiration, and the language providing for a 120 day deadline

"Certain phrases in Ordering Paragraph 2 related to the transfer of customers on longer term contracts expiring outside of the 120-day window could potentially be construed in a conflicting manner and clarification is requested. While the language properly recognizes that transfers should take place 'upon expiration of the current contract term,' it also requires that the transfers take place within 120 days of the effective date of the Order. For month-to-month contracts and other contracts expiring within the 120-day window, the operation of that requirement is clear. However, the Order does not appear to contemplate contracts whose expiration date extends beyond the 120-day window. The July 2022 Order could potentially be read to require ESCOs to obtain affirmative consent within the 120-day period regardless of when the contract expires, which may not be for an extended period. For customers on longer term contracts that will expire after the 120-day window, the requirement to obtain affirmative customer consent to switch the customer to a different permissible product or return the customer to full utility service should be timed to coincide with the expiration of the product. Otherwise, it could lead to customer confusion and potentially mistakenly cause the customer to seek to terminate the green gas contract, subject to early termination fees," Family Energy said

Family Energy additionally sought clarification with respect to the offering of home warranty products bundled with green gas products.

"Home warranty products are permissible ESCO offerings that are not subject to the savings guarantee price restriction. Commission clarification is requested as to whether green gas products can be offered to consumers bundled with home warranty products, and if so, whether the bundled product also would not be subject to the savings guarantee price restriction. The Commission has already found demonstrated added value in home warranty offerings to consumers. By bundling the green gas product with the home warranty product, the value-added benefits to the consumer are increased even more as it permits consumers to make purchases consistent with their green energy goals, and this further justifies a price premium. For this reason, clarification is requested to permit the bundling of home warranty and green gas products not subject to the savings guarantee price restriction," Family Energy said

As noted above, Family Energy sought rehearing of the order denying the extension of the green gas waivers. Green Mountain Energy Company also filed a separate petition for rehearing. The petitions generally allege various procedural and substantive policy infirmities in the order.

Cases 12-M-0476, 15-M-0127, 98-M-1343

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