New York PSC Adopts "Discrete" Changes To ESCO Uniform Business Practices

At its session today, the New York PSC voted to adopt what were described by Staff as "narrow" and "discrete" changes to the Uniform Business Practices applicable to ESCOs

In addressing various petitions for reconsideration and rehearing, Staff said that the UBP amendments before the Commission address two "common sense" issues -- the omission of a door-to-door agent's last name from an ID badge, and prohibiting early termination fees in the case of death

Concerning the ID badge issue, Staff said that the changes, which were adopted by the Commission, would omit the last name from ID badges worn by ESCO agents in the course of door-to-door marketing. Omission of the last name is to prevent the risk of anyone stalking the agent, and had been a change proposed by ESCOs. While a written order has not yet been issued, such written order will likely provide that the badge shall display the representative’s first name and a unique employee identification number

The adopted amendments also implement revisions to the General Business Laws which prohibit the imposition of a contract termination or early cancellation fee in the event the customer has deceased before the end of such contract

Both provisions had been adopted in changes to the UBPs that the PSC had approved in January 2018 (story here). However, during the discussion at today's session, Staff stated that the order "adopts" two common-sense reforms (as opposed to language stating that the reforms were affirmed on rehearing)

As previously reported (story here), other UBP changes contained in the PSC's January 2018 order have been subject to rehearing requests from ESCOs, with extensions granted for compliance with such revisions. Notable among the prior changes subject to rehearing requests is requiring a TPV for a sale conducted during a scheduled appointment (see more on the UBP changes adopted in January 2018 below)

In discussing the matter before the PSC, Commissioner Diane Burman stated, "While it is addressing the petitions for rehearing and petition for clarification ... it is really affirmatively only addressing, at this time, two issues."

It was not immediately clear if the PSC's ultimate order adopted yesterday addressed any other matters arising from rehearing and reconsideration requests related to the January 2018 order, and whether the fact that only the two discrete amendments noted above were adopted means that the PSC has withdrawn any other changes originally adopted in the January 2018 order (whose adoption had been contested due to alleged notice issues, as noted further below)

A written order from the PSC was not available as of publication time

Burman did state that the order does speak to certain SAPA notice issues, but did not elaborate on the ultimate disposition of arguments related to notice

Notably, ESCOs had alleged that all of the changes adopted in the January 2018 order, apart from the badge name and early termination fee (ETF) issues noted above, were not properly noticed, because a notice of the proceeding only specifically identified the badge name and ETF issue, while also stating that, "other related matters and housekeeping items," may also be addressed in the proceeding. The Retail Energy Supply Association, for example, alleged that the adopted changes were neither "related matters" nor "housekeeping items," and therefore had not been properly noticed.

Staff did state during the discussion that the order adopted by the PSC does not prejudge any issues in any other ESCO proceeding (such as the reset proceeding).

The January 2018 Order

The changes to the UBPs that were previously adopted in January 2018 included, among other things, the following notable provisions, of which various ESCOs sought rehearing

• Under the January 2018 Order, ESCOs, for residential and small non-residential customers, shall conduct, "an independent third party verification," for any sale resulting from a scheduled appointment, in addition to door-to-door and telephonic sales

• Under the January 2018 Order, ESCOs must ask as part of the TPV, "Do you participate in your utility’s low-income assistance program?"

• Under the January 2018 Order, the revised UBPs also only allow assignment of an ESCO customer contract where the contract specifically allows for such action and customer notice is provided. Previously, assignment was allowed if the contract allowed assignment or the customer was provided notice. In assignments, the ESCO must provide an opportunity for each customer to choose another ESCO or return to full utility service. An ESCO shall provide a written notice no later than 30 calendar days prior to the assignment or transfer date to each customer and distribution utility.

• Under the January 2018 Order, every ESCO shall offer residential customers a voluntary budget billing or levelized payment plan for the payment of charges. The ESCO is responsible for determining the budget bill amount and must evaluate each budget billed account on a quarterly basis for conformity with actual billings. Each such plan shall provide that bills clearly identify consumption and state the amounts that would be due without levelized or budget billing.