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ESCOs Seek Clarification On Recent New York Order Requiring Standard Form Renewal Notice, Price Comparison
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Several ESCO parties have sought clarification or rehearing of the New York PSC's recent decision to implement revisions to General Business Law (GBL) §349-d, which, among other things, generally prohibits ESCOs from changing the rate charged to a customer (with customer having the meaning as defined by law) without the affirmative consent of the customer
See our prior story here for a discussion of the changes and applicability of the revised UBPs
§349-d provides that, "No material change shall be made in the terms or duration of any contract for the provision of energy services by an ESCO without the express consent of the customer."
§349-d specifically provides that, "A change in price or a change to or from fixed or variable pricing shall be deemed to be material."
As previously reported, the PSC adopted changes to the UBPs which provide that, for residential and door-to-door contracts, all changes to the terms of the contract, including changes to the price, commodity rate, and product or service type, will be considered material, and will require that the ESCO obtain the customer’s express consent.
This new requirement applies to variable rates, the PSC held, as the PSC rejected arguments from ESCOs that variable rate contracts already inform customers at the time of contracting that the price will change, and thus a change in price is not material
More specifically, even guaranteed savings products which change in price during the term, while still providing guaranteed savings over the term, must receive express consent for a change in price, which represents a change from prior PSC policy
The PSC said that §349-d requires consent for any price change for residential and door-to-door contracts, with no exceptions
The Retail Energy Supply Association sought clarification on several issues
Implementing additional parts of §349-d, the PSC will require ESCOs to use an updated standard contract renewal notice
RESA said that a standard contract renewal notice presented by DPS Staff earlier in the proceeding lacks information required by law. Specifically, the Staff renewal notice does not include information on how customers may access historical utility bill
information and a bill calculator. Rather, the notice directs customers to the state's Power to Choose site for a comparison of prior ESCO rates, but such information does not include information on what the utility would have charged the customer previously, or a bill calculator
Additionally, RESA said that Staff's standard contract renewal notice does not inform customers that the customer must provide express consent in order for any renewal to be effectuated.
RESA said that informing customers, on the renewal notice, that express consent is required to continue service under renewal would be consistent with the PSC's stated goal of ensuring that customers are informed about their service
RESA also expressed concern that ESCOs must use the new renewal notices starting December 31, 2025, but a compliant standard notice has not yet been posted by the PSC
RESA sought a stay of the PSC's affirmative consent order pending resolution of RESA's motion for clarification and rehearing
As previously reported, renewal notices must include the, "price that is charged by the customer's distribution utility".
The PSC ordered that this utility price shall be the existing 12-month trailing average utility supply rate, which the distribution utilities already post
RESA sought rehearing of the PSC's decision that the renewal notice should use the 12-month trailing average utility supply rate for the utility's price. RESA favors using the utility's current price to compare for the utility price
Statute requires the disclosure of, "the price that is charged by the customer's
distribution utility".
RESA said that the current PTC better informs customers of the utility's rate versus the PSC's selected outdated price information
Given that ESCOs must now obtain express consent for renewals which have any material change (including a price change or term change), RESA said that the PSC should eliminate the current rule allowing a customer to cancel a renewed contract 3 days after receipt of the first bill under the contract
RESA also called an additional existing notice tied to auto-renewals superfluous, since customers must now affirmatively consent to renewals (such existing notice, which is in addition to a 60-day and 30-day renewal notice, was required no more than 10 days before the first auto-renewed bill)
RESA sought clarification of the application of new affirmative consent requirements to opt-out municipal aggregations. While the PSC in its order had noted that the relevant statute does not exempt CCAs, RESA said that clarification would be beneficial since, while ESCOs serve customers in a CCA, ESCOs do not contract with end-use customers in CCAs
M&R Energy Resources Corp. filed a separate request for rehearing, arguing, among other things, that the PSC's order forces guaranteed savings products out of the
market, "not because they fail consumers, but because they cannot be administered under a
monthly affirmative-consent model."
M&R argued that, "The Legislature required express consent only for material
changes (price structure changes or fixed/variable shifts) and explicitly preserved renewal by
notice. The [PSC's] Order collapses these two concepts into one."
Alternatively, M&R requested, "clarification that continued service under an unchanged GSP [guaranteed savings] program is not
a renewal-triggering event and does not require recurring express customer consent. Consent
should apply only when the customer is moved from the GSP to a non-GSP offering, or when the
savings guarantee is modified or removed such that the customer is no longer assured savings
relative to the applicable utility benchmark."
"In addition, the Commission should grandfather all customers currently enrolled in M&R’s
GSP as of the UBP Amendments’ effective date and confirm that those customers may continue
receiving service under their existing GSP agreements, without repeated renewal/consent
solicitations, unless and until there is an actual change away from the guaranteed-savings structure," M&R said
M&R said, "[A]bsent clarification and a stay, M&R will be forced to suspend or discontinue
its GSP because the November Order’s renewal/consent construct treats ordinary product
administration as repeated renewal-triggering events. Customers would lose an offering designed
to provide verifiable savings relative to utility supply, not due to an informed customer decision
but because continued administration is rendered impracticable under the adopted interpretation."
Case 98-M-1343
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December 15, 2025
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Copyright 2025 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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