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New York PSC Issues Show Cause Order To ESCO
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The New York PSC issued a show cause order to Mpower Energy LLC ("Mpower") directing that Mpower Energy LLC demonstrate why its eligibility as an ESCO should not be revoked, or why other consequences should not be imposed, due to allegations that Mpower Energy LLC allegedly enrolled certain customers without providing to such customers a sales agreement as defined under the UBP, and that Mpower allegedly failed to transition certain customers to a compliant product
The PSC's show cause order recites allegations from a Department of Public Service (DPS or Department) Staff report, and while the PSC said that, "the Commission finds that the Department’s investigation has identified sufficient credible information to support Staff’s contentions," the PSC stressed that, "the presentation of Staff’s allegations herein does not reflect a final determination of facts or legal conclusions."
Notably, certain of the allegations involve accounts which Mpower argues were not "customers" due to being employees, employees’ family, and employees’ family friends.
For these friends and family accounts, which were enrolled prior to the PSC's retail market reset order, DPS Staff alleges that Mpower did not produce, in response to a Staff inquiry, sales agreements for certain of these accounts as required under the Uniform Business Practices. Rather, DPS Staff alleges that Mpower provided to Staff affidavits from such account holders, in which the account holders confirmed under oath that each responsible person had authority to make decisions regarding the account, chose to enroll their account(s) with Mpower, was fully aware of the terms of service prior to enrolling their account(s) with Mpower, and, at all times, received service in accordance with those terms.
Concerning the production of sales agreements, the PSC's order summarizes Mpower's response as stating that, "some of the accounts were enrolled as long as 15 years ago and the corresponding contracts are contained in storage boxes. The digital copies of many of those older contracts were destroyed due to a catastrophic failure in Mpower’s server more than ten years ago."
As summarized by the PSC, Staff alleged that, "Mpower reported a combined total of 11 electric and gas accounts that did not have sales agreements but instead submitted affidavits regarding energy service for those accounts."
During an investigation, Mpower produced affidavits from the relevant friends and family accounts, but such affidavits were dated from February 2026. Staff alleged that Mpower had stated that, "many electronic enrollment records from prior to 2014 were destroyed due to a catastrophic system failure that resulted in the loss of these records".
As alleged by DPS Staff, Mpower claimed that employees, employees’ family, and employees’ family friends, "are not customers of Mpower".
As summarized by the PSC, Mpower had also stated that such friends and family accounts, "are provided with service free of charge or for a negligible amount."
Staff argues that, "any provision of commodity supply to another entity or person is a retail sale that would establish an ESCO-customer relationship."
Staff argued that, "The UBP also does not make any exceptions for any ESCO customer to take service without first obtaining affirmative customer consent based on established terms and conditions in an accompanying sales agreement.".
As summarized by the PSC, "Staff contends that Mpower has not demonstrated that the customers who signed affidavits in lieu of sales agreements were ever enrolled on a sales agreement. The affidavits were all signed in February 2026, but Staff verified with the utility that all of these accounts began taking commodity service from Mpower for many years prior. Thus, Staff alleges that Mpower appears to have violated UBP §§4.B.1 and 5.D.4 by failing to obtain proper customer authorization to enroll its employees, employees’ families, and employees’ family friends on ESCO service."
Additionally, Staff alleges that certain mass market customers of Mpower were not transitioned to a compliant product under the PSC's reset order, and/or, if the customer was transitioned to a compliant product, Mpower did not obtain affirmative consent to do so
Staff alleges that Mpower continued service to certain customers on fixed rate contracts beyond such fixed contracts' expiration, and that Mpower did not, after the reset order, transition the customers to a guaranteed savings product (GSP, which is the only default product permitted if affirmative consent is not obtained for renewal)
Staff's allegation is based, in part, on Mpower's inconsistent responses concerning whether Mpower served customers under a GSP, which also prompted other alleged violations concerning recordkeeping
Staff alleged that in an initial compliance filing, Mpower initially indicated that Mpower served certain customers under a GSP. However, Staff alleged that, in subsequent responses, Mpower stated, "Mpower does not offer a [GSP] to consumers and does not contractually guarantee savings."
Further, in another data response, Staff alleged that Mpower provided a sales agreement for a mass-market customer that was enrolled in a GSP sales agreement, with Staff alleging that the product was clearly identified as, "Month to Month Variable with Guaranteed Savings."
As summarized by the PSC, Staff alleged that, "Based on these statements, it appears that Mpower repeatedly changed its representations to Staff in a way that is not congruent or explicable. The Company filed its electric and natural gas GSP report, then emphatically denied serving any customers on a GSP, only to submit an executed GSP sales agreement that clearly guarantees savings."
As summarized by the PSC, "Staff is concerned that Mpower’s recordkeeping practices make it difficult for Staff to verify compliance with the UBP, or that these sales agreements may never have existed in the first place."
As summarized by the PSC, "Staff contends that the Company’s shifting stories indicate that Mpower is either providing misleading information in response to Staff’s requests or the Company is unable to provide accurate information. Based on these conflicting narratives, Staff alleges that Mpower has apparently failed to comply with 'reporting requirements' and 'Department oversight requirements,' as required by UBP §2.D.5.d. This apparent failure subjects the Company to the potential consequences described in UBP §2.D.6.b."
As summarized by the PSC, "Staff contends that Mpower’s apparent violations are not isolated events but rather encompass continuous instances of non-compliance that extend across its business practices, potentially reflecting a pervasive disregard of the UBP and the Commission’s December 2019 Order".
Staff's specific alleged violations of the relevant UBP sections are as follows:
1) Mpower allegedly violated UBP §4.B.1, which requires ESCOs to obtain customer authorization when enrolling customers. Staff alleges that Mpower failed to obtain proper customer consent to enroll with Mpower.
2) Mpower allegedly violated UBP §5.B.1, which requires ESCOs to obtain customer authorization when initiating commodity service. Staff alleges that Mpower failed to follow the proper enrollment process to enroll certain customers on an approved product.
3) Mpower allegedly violated UBP §4.B.3, which requires ESCOs to retain verifiable proof of authorization for each customer and produce this proof to Staff within five calendar days of a Staff request. Staff alleges that Mpower failed to produce requested sales agreements within five calendar days.
4) Mpower allegedly failed to transition and enroll customers on a compliant product, in violation of the December 2019 [reset] Order. Staff alleges that Staff received customer affidavits regarding Mpower’s energy service rather than sales agreements indicating the specific product(s) on which those customers were enrolled.
5) Mpower allegedly violated UBP §2.D.5.d by providing allegedly inconsistent and allegedly potentially misleading information to Staff, contrary to 'reporting requirements, or Department oversight requirements.' Staff alleges that Mpower denied offering a GSP product but submitted an active sales agreement with a GSP product to Staff.
Case 23-M-0287
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May 15, 2026
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Reporting by Paul Ring • ring@energychoicematters.com
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