Proposed New York Rule Would Prohibit "Harassment", Other "Detrimental" Conduct By Retail Suppliers In Connection With "Establishment Of Service"

"Causing A Telephone To Ring ... Repeatedly Or Continuously" Among Proposed Behaviors Defined As Harassment

August 9, 2023

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Copyright 2010-23 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

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The New York PSC has proposed rules to implement Public Service Law (PSL) §53-a, prohibition of utilities engaging in detrimental conduct towards a residential customer, with the PSC's proposed rules including language expanding the prohibited conduct to apply to, "the establishment of gas and/or electric service".

All of the discussion below applies only to residential customers and service.

As previously reported (story here), a rulemaking was opened to address the following statutory provision:

§ 53-a. Prohibition of utilities engaging in detrimental conduct towards a residential customer. 1. A utility corporation or municipality, or energy services companies subject to the department's uniform business practices and section three hundred forty-nine and three hundred forty-nine-d of the general business law, also known as ESCOs, shall not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any residential customer in connection with the handling of a residential customer complaint, the offering and/or negotiating of a deferred payment agreement, or the collection of an unpaid balance or any other obligation owed by such customer.

However, the PSC's proposed rules concerning implementation would extend such prohibition to applying to, "the establishment of gas and/or electric service," in addition to those customer interactions listed in § 53-a

Specifically, the PSC has issued a proposed rule that provides, "No utility corporation, municipality, or ESCO subject to the department's uniform business practices and sections three hundred forty-nine and three hundred forty-nine-d of the general business law shall engage in any conduct the natural consequence of which is to harass, oppress, or abuse any residential applicant or customer in connection with the establishment of gas and/or electric service, handling of a residential customer complaint, the offering and/or negotiating of a deferred payment agreement, or the collection of an unpaid balance or any other obligation owed by such customer."

Though the term, "establishment of gas and/or electric service," is not defined, this expanded language could ostensibly implicate ESCO behavior during solicitations, marketing, and enrollment.

The proposed rules define "detrimental conduct" to mean, "any conduct by a utility, municipality, or ESCO, the natural consequence of which is to harass, oppress, or abuse a residential applicant or customer in connection with the establishment of gas and/or electric service, handling of a residential customer complaint, the offering or negotiating of a deferred payment agreement, the collection of an unpaid balance, or any other obligation owed by such customer."

Under the proposed rules, the phrase, "harass, oppress, or abuse", "shall mean and include, but not be limited to, when the utility, municipality or ESCO knowingly fails or neglects to comply with the provisions of Article 2 of the Public Service Law."

Furthermore, the following conduct (among other conduct) is specifically proposed to be deemed a violation of the relevant section:

• Causing a telephone to ring or engaging any person in telephone conversation or other means of electronic communication repeatedly or continuously, the natural consequence of which is to annoy, abuse, or harass any person at the called number or point of electronic communication.

• The placement of telephone calls or other means of electronic communication without meaningful disclosure of the purpose of the call or electronic communication and/or the identity of the utility, municipality, or ESCO.

• The use of obscene or profane language or language, the natural consequence of which is to intimidate or otherwise insult or mistreat the listener or reader.

• The use of false, deceptive, or misleading representation in connection with the collection of a debt.

The proposed rules would provide that the following conduct shall not be deemed harassment, oppression, or abuse by a utility, municipality or ESCO:

(i) Communications by an employee or agent of a utility, municipality, or ESCO in the regular course of business when collecting or attempting to collect any debt owed or due to the utility, municipality, or ESCO.

(ii) Communication to a residential customer upon their express consent to receive autodialed and prerecorded or automated calls or other means of electronic communication related to utility service. The customer consent to contact includes communications related to utility service and is limited to communications that warn or inform the customer about planned or unplanned service outages, updates about service outages or restoration, confirmation of service restoration or information about lack of service, notification of meter work or other field work, notification of possible eligibility for subsidized or lower cost services, or that relate to servicing and billing the customer’s account.

(iii) Communications by an employee or agent of a utility, municipality, or ESCO when negotiating the terms and conditions of a deferred payment agreement consistent with Article 2 of the Public Service Law and section 11.10 of this Part.

(iv) Communications by an employee or agent of a utility, municipality, or ESCO when providing advice, information, or the position of that entity to a residential applicant or customer in relation to a complaint or the establishment of gas and/or electric service.

Violations would subject offending parties to fines as set forth in the public service law

Feller Law Group, PLLC has been bringing this issue to the retail market's attention, and the concern about the potential applicability of the prohibitions to ESCO marketing, due to the noted "establishment of gas and/or electric service" language.

Public comments on the draft regulations must be filed no later than August 14, 2023.

Case 23-M-0229

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