N.Y. ALJs Deny RESA's Sought Discovery Related To Utilities' Customer-Facing Historic Bill Calculators Comparing ESCOs, Default Service

The presiding ALJs in the New York PSC's evidentiary retail mass market review have denied a specific discovery request by the Retail Energy Supply Association related to the historic bill calculators comparing ESCO service to default service offered on certain utility websites, with the ALJs finding that a link to the online calculators is sufficient, with only a representative "sampling" of results needed to be provided to the extent the utilities are unable to provide a link for RESA to perform its own calculations.

RESA had requested that ConEd, O&R, and NFGD provide an, "electronic copy, with formulas intact, of each company’s historic bill calculator," as well as copies of any electronic data used by each company to apply the calculator to ESCO product offerings. RESA maintained that the historic bill calculator is an important tool for utilities to compare their pricing against the ESCOs’ pricing and, together with the information requested in its other IRs, is necessary for RESA’s outside consultant to analyze and deconstruct the utilities’ default price and efficiently and meaningfully respond to the issues raised in the proceeding. RESA stated that it is not asking for any confidential customer information or any proprietary information regarding utility business practices.

According to Con Edison and O&R, RESA fundamentally misunderstands the nature of their historic bill calculators. The utilities asserted that there is no simple, practicable way to provide RESA with the calculators, because there is no single file or table that contains all of the information needed to perform a historic bill calculation. Moreover, the utilities stated that typical residential electric bills contain approximately 28 different charge types, which are recalculated for each billing period selected. The utilities noted that the charge data is housed within various data tables in the companies’ customer information systems. According to ConEdison and O&R, once a billing period is selected and entered into the calculator, the ESCO charges are reloaded, component by component, drawing upon all the billing charges that are stored on the various tables in the customer information systems. The utilities also asserted that, even assuming they could produce them, RESA has not articulated a reason it requires the calculators, given the extensive "price to compare" data they already have provided during discovery

NFGD also objected to RESA's discovery request, and directed RESA to the calculator as it appears on NFGD's site to perform any necessary calculations.

The ALJs found NFGD's response to be reasonable, "given the scattered and voluminous nature of the data required to perform a calculation, and the fact that the calculator is not a program that is easily shared or transmitted."

"Moreover, with a link, RESA will be able to perform its own calculations, while the proprietary rights of third parties will be protected. Accordingly, the Companies [ConEd & O&R] are directed to provide a similar link to their own historic bill calculators," the ALJs directed

"In the event that the Companies are unable to provide RESA with such a link, they should propose an alternative means by which RESA can obtain a sampling of historical bill information for customers of RESA’s members. For example, the Companies could propose to RESA a reasonable, representative number of RESA members’ customers that the Companies would run through the historic bill calculator, and then provide the results to RESA. Any dispute regarding the sample size can be brought back to us for further consideration," the ALJs said

In other disputes, the ALJs granted in part RESA's request that the utilities provide information related to any fixed-price hedge was incorporated into the energy supply charges of the default service

While ConEd claimed confidentiality concerning such hedging information, the ALJs found that the protective order adopted in the case makes such concerns moot.

However, the ALJs noted that RESA has not objected to the receipt of hedging data in an aggregated form from O&R, and therefore the ALJs directed that, "Con Edison likewise may choose to respond to RESA [IR#] 6 in an aggregated format."

For several requests, RESA sought information related to utility supply charges dating back to 2006. Reiterating that the most recent five years of data (2012-2016) is a reasonable request, the ALJs denied to compel the utilities to respond to RESA's requests for info prior to 2012.