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FERC Refuses to Order Rebilling for NYSEG/NiMo Metering Errors
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October
29, 2010
Rejecting recommendations from Trial Staff, FERC denied requests from NYSEG
to require the New York ISO to rebill certain charges dating back 10 years to correct
metering errors from both NYSEG and Niagara Mohawk (EL09-
NYSEG's petition for rebilling was first reported by Matters (12/31/08). Competitive retail suppliers had opposed such rebilling. Not only did FERC Trial Staff oppose competitive retailers' argument, but Staff took a particularly strident and terse stance against retail suppliers in its briefs, claiming that retail suppliers should have anticipated metering corrections 10 years into the future (12/17/09).
"The Commission agrees with those parties who argue that section 7.4 of the Services Tariff reflects Commission policy that, once invoices are finalized, they should generally remain unchanged, even if later found to contain errors, so that the market participants can rely on the charges contained in the invoices," FERC said in its decision.
While rebilling may be permitted in extraordinary circumstances, "we find that, in the circumstances of this case, no significant injustice would result in the absence of Commission action and no other factors compel the Commission to direct NYISO to correct 99 months of finalized invoices," FERC said.
"Here, there were a series of minor metering errors, albeit they continued over a sufficiently long period of time to add up to a significant total dollar amount. In this situation, we find that the appropriate focus is not only on the monetary impact on NYSEG, but also on the monetary impact on other market participants of a refund of the accumulated total, which here would be unjustifiably large. We find that the appropriate remedy for the relatively minor billing errors was to correct the cause of the errors prospectively," FERC added.
"It does not result in a significant injustice to NYSEG to decline to order NYISO to correct slightly incorrect invoices that NYSEG itself arguably could have discovered, but each of which were so slight and caused so little harm to NYSEG as to go unnoticed for all those years. In contrast, it would cause a significant injustice to the other customers who, through no fault of their own, would now face large additional bills to permit the refunds to flow to NYSEG," FERC said.
FERC also rebuked Trail Staff's argument that retail suppliers should have planned for potential rebillings due to metering errors when designing their retail contracts.
"Another factor we take into account is RESA's and CES's [ConEdison Solutions] claim that retail LSEs and ESCOs are unable to collect debts after a certain amount of time, as their customers change, and the relevant charges associated with any refund to NYSEG are not collectible from new customers under their contracts. The Commission does not agree with Trial Staff's position that this is the fault of insufficient planning by RESA and CES, and that they should be ready to pay revised invoices, plus interest. It is not reasonable to expect a customer with no ability to anticipate what invoices might be in error, and what the dollar impact of the errors might be, to set aside funds to pay for the correction of such speculative errors from years in the past long after the tariff's deadline for correcting such errors has passed. Here, nearly 10 years have passed since some of the subject invoices were finalized. The Commission's exercise of its discretion to order the correction of finalized invoices after that deadline has passed should be rare and not result in imposing an onerous obligation on others," FERC said.
FERC said that several cases cited by NYSEG and Trial Staff supporting rebilling, "are distinguishable because, at the time, the RTOs/ISOs in question did not have specific tariff provisions governing the time limit for invoice corrections similar to section 7.4 of the NYISO Services Tariff."
The Commission also said that while FERC may order corrections per language in the NYISO tariff, "to interpret that provision as requiring the Commission, pursuant to the filed rate doctrine, to always reopen and correct finalized invoices would read the provision regarding Commission review and redress out of the tariff, which forms the filed rate. Accordingly, the filed rate doctrine does not require the Commission to order the subject invoices be reopened and corrected."
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