NY PSC Overturns Informal Finding, Affirms Sales Contract Must Be In Same Language As Marketing Pitch; Orders ESCO To Issue Refund

Overturning the informal finding of a hearing examiner in a complaint case, the New York PSC has ordered SJ Energy Partners to issue a refund to a customer after concluding that the execution of a contract, which was not in the same language as the language used to market to the customer, violated the Uniform Business Practices

The complaints from a residential customer concerns whether the enrollment of the complainant’s electric and gas accounts was valid.

As summarized by the PSC in an order reversing the informal hearing examiner's finding, "Complainant acknowledges that in 2011 she contacted SJ after reading an article in the Korean Daily News about the company and that a representative from the ESCO came to speak to her. However, she asserts that she did not sign a contract with or agree to switch her service when the representative came to her home. It was not until April 2014, three years later, when she contacted Con Edison with a high bill concern, that she found out she was being billed by SJ."

"The ESCO has argued that the enrollment is valid, as it has a signed sales agreement with complainant for the provision of electric and gas supply and, that it is in compliance with the provisions of the UBP," the PSC summarized in its order reversing the informal hearing examiner's finding

The informal hearing officer found that the ESCO had properly enrolled complainant’s account based upon a signed sales agreement.

However, on appeal, the PSC noted that the UBP has specific marketing standards that must be complied with when dealing with a limited English proficiency customer. Specifically, per the UBPs, "Any written materials, including contracts, sales agreements, marketing materials and the ESCO Consumers Bill of Rights, must be provided to the customer in the same language utilized to solicit the customer." (emphasis by PSC)

The UBPs further provide, "Where it is apparent that the customer’s English language skills are insufficient to allow the customer to understand and respond to the information conveyed by the ESCO representative or where the customer or another third party informs the ESCO marketing representative of this circumstance, the ESCO marketing representative shall either find a representative in the area who is fluent in the customer’s language to continue the marketing activity in his/her stead or terminate the in-person contact with the customer. The use of translation services and language identifications cards is permitted."

The PSC in its order reversing the informal hearing examiner's finding stated that, "[a] November 21, 2014 submittal by the utility [sic] states the following: 'The solicitation of the Customer was conducted by a representative named Mr. Seo who is fluent in Korean and has much experience marketing to customers who speak that language. He explained the entire process to the Customer including the elements required under the UBP -- all in Korean.'"

"The November 21, 2014 submittal supports the conclusion that SJ properly complied with UBP §10(e) requirements when speaking to complainant in her native language. However, review of the sales agreement, copies provided by both the ESCO and complainant, show that the signed document is in English. This evidence supports the conclusion that SJ was in direct violation of the UBP §10(d) when it did not provide the sales agreement in Korean. Since the complainant was solicited in Korean, any written materials must be provided to her in Korean as well. As this is a violation of the UBP, the enrollment is deemed invalid," the PSC in its order reversing the informal hearing examiner's finding

"The Commission determines that the enrollment of complainant’s electric and gas accounts with SJ was not valid," the PSC ruled

The PSC ordered SJ Energy Partners to refund to the customer, with interest, the difference between the ESCO rate and the applicable utility rate (ConEd for electricity, National Grid for gas) since enrollment in June 2011