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Alert: New York PSC Extends Deadline By Which ESCOs Must Stop Serving Low-Income Customers By Several Months, Citing Litigation

January 25, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Update:

Natara Feller, Esq., Managing Member at Feller Law Group and counsel to the Impacted ESCO Coalition, responded favorably to the news, “We are encouraged by the Commission’s decision as the extension provides additional time for ESCOs, industry groups, and the Commission to collaborate on the best solutions for challenges to the retail market. This is an important step towards ensuring the preservation of customer choice. All customers, including those that are low-income, deserve the option to choose an ESCO rather than being summarily returned to default utility service.”

Note: The story below was originally posted at 8:30 p.m. on January 25

The Secretary of the New York PSC has extended the deadline by which ESCOs must stop serving assistance program participant (APP) customers, outside of a guaranteed savings product, by several months, citing litigation of the PSC's most recent APP prohibition order

In a Secretarial notice addressing petitions for rehearing filed by the National Energy Marketers Association and Impacted ESCO Coalition, the PSC said that, "NEM has advised it also intends to enjoin the [December 16] Prohibition Order and has developed a schedule for amending its current challenge with Commission appellate counsel."

"In order to avoid the customer confusion that may arise in implementing the prohibition that may be subject to change pending the outcome of that litigation, it is appropriate to delay the implementation of the Prohibition Order until a judgment can be had, at the very least, from Albany County Supreme Court," the PSC Secretary said

"After a conference with the Justice assigned to the pending Albany County proceedings, Commission appellate counsel is reasonably confident that a judgment in those proceedings will be had by mid-May, though it remains free to negotiate additional extensions," the PSC Secretary said

"Therefore, the requirements of Ordering Clauses 1-3, and 5-11 of the Prohibition Order are extended until May 26, 2017," the PSC Secretary said

Ordering Clauses 1-3 and 5-11 of the December 16 order are essentially all of the enacting provisions implementing the prohibition of ESCO service to APP customers, including the requirement for ESCOs to drop existing APP customers to default service (timing contingent on product type)

Ordering Clause 4 related to, for utilities with the ESCO Consolidated Billing Model, the development of draft "drop" letters concerning ESCO service to APP customers, and filing such letters with the PSC

Ordering Clauses 1-3 and 5-11 of the December 16 order are:

1. Electric and gas distribution utilities that have tariffed provisions providing for retail access are directed to, within 60 days of the effective date of this Order, place a block on all assistance program participant accounts, preventing those accounts from being enrolled with an energy service company.

2. Electric and gas distribution utilities that have tariffed provisions providing for retail access are directed to, within 60 days of the effective date of this Order, communicate to each energy service company serving assistance program participants which accounts the ESCO is no longer eligible to serve, consistent with the discussion in the body of this Order.

3. Energy service companies that participate in the ESCO Consolidated Billing Model in National Fuel Distribution Corporation’s service territory are directed to, within 60 days of the effective date of this Order, communicate to National Fuel Distribution Corporation which accounts the ESCO is receiving a HEAP payment on the customer’s behalf.

5. Electric and gas distribution utilities that have tariffed provisions providing for retail access and energy service companies that participate in the ESCO Consolidated Billing Model in National Fuel Distribution Corporation’s service territory are directed to, within 60 days of the effective date of this Order, send the letters developed pursuant to Ordering Clause 4 to energy service company customers that are assistance program participants, consistent with the discussion in the body of this Order.

6. Electric and gas distribution utilities that have tariffed provisions providing for retail access are directed to, on a rolling basis, communicate to each energy service company serving customers who subsequently become assistance program participants which accounts the ESCO is no longer eligible to serve by sending an updated list of such accounts, consistent with the discussion in the body of this Order.

7. Energy service companies that participate in the ESCO Consolidated Billing Model in National Fuel Distribution Corporation’s service territory are directed to, on a rolling basis, communicate to National Fuel Distribution Corporation which accounts the ESCO is receiving a HEAP payment on the customer’s behalf.

8. Electric and gas distribution utilities that have tariffed provisions providing for retail access are directed to on a rolling basis, notify energy service company customers that subsequently become assistance program participants by sending such customers the letters developed pursuant to Ordering Clause 4, informing them of the prohibition imposed by this Order and that they will be returned to utility service.

9. Energy service companies that participate in the ESCO Consolidated Billing Model in National Fuel Distribution Corporation’s service territory are directed to on a rolling basis, notify customers that subsequently become assistance program participants by sending such customers the letters developed pursuant to Ordering Clause 4, informing them of the prohibition imposed by this Order and that they will be returned to utility service.

10. Every energy service company eligible to serve customers in New York State shall, within 30 days of receiving the communication from the electric and gas distribution utilities pursuant to Ordering Clause 2 and 6 of this Order, de-enroll any customer accounts identified by the electric and gas distribution utilities, provided that existing contracts will continue until their expiration.

11. Energy service companies that participate in the ESCO Consolidated Billing Model in National Fuel Distribution Corporation’s service territory shall, within 60 days of the effective date of this Order, de-enroll any customer accounts on whose behalf the Energy service company receives a HEAP benefit, provided that existing contracts will continue until their expiration.

The PSC Secretary said neither petition for rehearing complies with the formal requirements for a rehearing petition stated in 16 NYCRR 3.7(b). "They accordingly do not toll the statute of limitations on any challenge to the Prohibition Order under Public Service Law (PSL) §22 and CPLR 7801(1). Both documents will, however, be treated as requests for extensions of time and, for reasons stated in them and discussed [above], the deadlines for implementing the prohibition are extended until May 26, 2017."

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