RESA: Notices for Proposed New York UBP Changes Are Legally Deficient (Changes Include Requiring TPV For All Sales)

Notices issued by the New York PSC concerning a proposed series of changes to the Uniform Business Practices proposed by the PSC are, "legally deficient," the Retail Energy Supply Association said in comments to the PSC, because the proposed changes are far broader than the two discrete issues and "housekeeping" changes discussed in the notices

As was first reported by EnergyChoiceMatters.com, the proposed changes include, among other things:

• Requiring All ESCO Mass Market Sales Be Subject To Independent TPV (Internet, Mailer, Etc.)

• Requiring ESCOs To Direct Customers To Compare Rate To Utility's Rate On Bill

• Requiring ESCOs To Ask All Customers If They Are On Low-Income Program

• Requiring ESCOs To Offer Budget Billing

• Prohibited ESCOs From Acting As Customer Agent For Enrollment, Switch Purposes

See our prior story for more details

RESA said that a March 8 notice from the PSC concerning the changes ("UBP Notice"), "describes the proposed changes as: (1) a UBP modification to reflect a change in New York law to prohibit the assessment of early termination fees in the event of an account holder’s death (the 'Termination Fee Change'); 2) a UBP modification resulting from an ESCO petition pertaining to representative identification requirements (the 'Identification Requirements Change'); and (3) 'other related matters and housekeeping items.'"

"Neither the UBP Notice nor the [associated] March 22 NOPRs [Notices of Proposed Rulemaking] described the subject, purpose or substance of the material and substantive changes that were proposed. The substance of these changes is only evident upon a close analysis of Attachment I in the UPB [sic] Notice, and that analysis must be performed with a side-by-side reading of the complete UBP to understand the full substance of the proposal. The underlying rationale for many of the proposed changes remains unclear," RESA said

"The New York State Administrative Procedures Act ('SAPA') is quite clear in its requirements for the rulemaking process," RESA said. "SAPA §202(f)(v) states that the notice must contain either the complete text of the rule change or 'a description of the subject, purpose and substance of such rule in less than two thousand words and shall identify the address of the website, if any, on which the full text has been posted,'" RESA said

"RESA respectfully submits that, other than the Termination Fee Change and the Identification Requirements Change, the proposed changes go well beyond “other related matters and housekeeping items” and that the UBP Notice and March 22 NOPRs clearly do not include 'a description of the subject, purpose and substance' of such proposed rule changes. Accordingly, RESA respectfully requests that the Commission withdraw the UBP Notice and March 22 NOPRs with respect to the proposed changes other than the Termination Fee Change and the Identification Requirements Change. Otherwise, the other proposed changes will be vulnerable to legal and procedural challenges," RESA said