NY Appellate Division Court Denies Stay Of PSC's Low-Income ESCO Service Prohibition, TRO Expires

A New York Appellate Division court denied a request from the National Energy Marketers Association and several ESCOs to stay (pending consideration of the merits of an appeal) the New York PSC's order generally prohibiting ESCO service to assistance program participant (APP) customers, and with such Appellate Division order denying a stay, the temporary restraining order on implementation of the order has expired.

On September 6, 2017, the PSC's Office of General Counsel received a Decision and Order from the Appellate Division denying the motion for a stay sought by NEM et. al. The Appellate Division's decision was dated September 1.

"In light of recent litigation activity and judicial rulings, the transfer of low-income customers from energy service companies to utilities required by the Prohibition Order shall commence by Monday, September 25, 2017," the PSC's Director of the Office of Consumer Services said in a September 7 letter to ESCOs and utilities

"With the denial of the stay motion and the lifting of the temporary restraining order, the implementation of the December 2016 Prohibition Order may continue. Accordingly, utilities and ESCOs shall continue to implement the December 2016 Prohibition Order. Consistent with the Secretary’s July 18 notice and taking into account the limited duration of the August 9 temporary restraining order, it is Staff’s interpretation that the utilities and ESCOs shall begin returning low-income ratepayers to utility service on or before Monday, September 25, 2017 -- which is eighteen days from today," the PSC's Director of the Office of Consumer Services said in a September 7 letter to ESCOs and utilities

Under the PSC's order, ESCOs shall de-enroll the APP accounts identified by the utility, "at the expiration of the existing agreement." With respect to month-to-month contracts, except as noted below, the expiration of the agreement is at the end of the current billing period, the PSC has held

The PSC's prohibition order allows ESCOs to continue to serve APP customers on fixed-price term contracts until the expiration of the existing contract, and allows ESCOs to continue to serve APP customers whose agreement calls for a customer reward or benefit at the end of a designated term (even if pricing is month-to-month) until the customer reaches such milestone.

The PSC's prohibition order allows ESCOs to petition to serve low-income customers with a guaranteed savings product. About a dozen ESCOs have filed such petitions; those petitions remain pending before the PSC

"Also, consistent with the Prohibition Order, ESCOs shall not enroll and sign up new low-income customers," the PSC's Director of the Office of Consumer Services said in a September 7 letter to ESCOs and utilities

The Appellate Division's decision only addressed the issue of the requested stay, and consideration of the merits of the appeal by NEM et. al. remains pending.