People's Counsel Seeks Regulations To Implement Ban On Retail Supplier Service To Energy Assistance Customers, Warns Of Gap In Prohibition Due To Statutory Language

The Maryland Office of People's Counsel petitioned the Maryland PSC to adopt regulations to implement a 2021 law that prohibits retail electric and gas supplier service to energy assistance customers outside of a PSC-approved plan that is less than SOS

Section 4-308(b)(1) of the Public Utilities Article states that, beginning on July 1, 2023, unless the Commission has approved a supply offer, a third-party retail supplier may not offer to:

• provide electricity or gas to households in the State that have received energy assistance during the previous fiscal year;

• renew a contract to provide electricity or gas to households in the State that are enrolled in an energy assistance program; or

• charge a termination fee to households in the State that have received energy assistance during the previous fiscal year.

Section 4-308(b)(2) also requires that, "[a]n approved supply offer from a third-party retail supplier shall include a commitment, for the entirety of the term of the supply offer, to charging at or below the standard offer service rate or gas commodity rate for customers receiving energy assistance."

Among other reasons, OPC said that the adoption of regulations are needed to clarify the "look back" period in PUA § 4-308(b).

"That period prohibits sales of unapproved offers to any households that received energy assistance 'during the previous fiscal year.' Commission guidance is necessary to interpret this provision," OPC said

In particular, OPC said that, absent clarifying regulation, the statute, due to the term "previous" fiscal year, could be read as, "prohibit[ing] the retail supplier from selling an unapproved offer to the customer who has not received assistance in the past 12 months but does not apply to a customer who received assistance during the previous month -- a result that arguably is absurd and unintended."

"The only logical interpretation that gives meaning to the 'previous fiscal year' language is that the General Assembly intended to cover households that received energy assistance during the current fiscal year and the previous fiscal year. Commission regulations can clarify this point, and its interpretation will be given deference," OPC said

OPC further said, "current and past experience with retail supplier compliance evidences the lengths to which retail suppliers will go to avoid application of statutory provisions intended to protect customers. Regulations will lessen disputes and therefore reduce time-consuming litigation and delayed customer benefits."

OPC included proposed regulations with its petition

Notably, OPC proposes the following for customers who become energy assistance customers mid-contract:

If a customer of a retail supplier becomes an energy assistance household during the term of any retail supply contract, upon receipt of the information provided by the utility under 20.53.11.07, the retail supplier shall:

(1) immediately terminate the contract and return the customer to SOS;

(2) if provided for in the contract, convert the customer from any unapproved contract to a new contract that is a Commission-approved offer; or

(3) Within three days, provide the customer the option and obtain the customer’s approval to convert the contract into a Commission-approved energy assistance supply offer contract.