|
|
|
|
|
New York ESCO Warns Of "Drafting Error" That Could Make Non-Residential Sales Subject To Existing Residential Rules
The following story is brought free of charge to readers by VertexOne, the exclusive EDI provider of EnergyChoiceMatters.com
Family Energy, Inc. filed comments at the New York PSC stating that what Family terms an "inadvertent drafting error" in proposed changes to the Uniform Business Practices filed by DPS Staff could subject non-residential ESCO service to a series of consumer protections currently applicable only to residential sales and any door-to-door sales
Family Energy was specifically commenting on Staff's proposed changes to the UBP to implement General Business Law (GBL) §349-d, which, among other things, generally prohibits ESCOs from changing the rate charged to a customer (with customer having the meaning as defined by law) without the affirmative consent of the customer
See more background on Staff's proposed changes here
At issue is Staff's proposal to implement GBL §349-d's provisions related to material changes in contracts and renewals
Rather than just editing the existing material change and renewal provisions
currently found at UBP §5.B.5.d through 5.B.5.F [sic], Staff proposes to make these sections their own section, under a modified UBP §5.B.5
Staff proposes that the remaining provisions of the
existing UBP §5.B.5, which do not relate to material changes or renewal, would now be found at new UBP §5.B.6.
Staff's "redline" document is not the simplest document to follow because rather than show all moved text as redline stricken, and then as new text in its new section, Staff has simply omitted any moved text in drafting UBP §5.B.5
Of note, the current UBP §5.B.5, including the existing material change and renewal provisions, includes the introductory statement that, "Additional terms and conditions applicable to residential customers and customers
solicited via door-to-door sales include:[...]"
Staff's draft of new UBP §5.B.5, which includes only the modified material change and renewal provisions, does not include the introductory statement that, "Additional terms and conditions applicable to residential customers and customers
solicited via door-to-door sales include:"
Family Energy argued that this represents a drafting error because none of the new provisions of GBL §349-d modified this statute to apply to any customers other than those defined in the statute: residential customers, and customers solicited through door-to-door sales (regardless of customer type)
However, while the following could alternatively represent multiple drafting errors, EnergyChoiceMatters does note that, in one of the provisions of Staff's modified §5.B.5 (§5.B.5.e), Staff has added language to existing text concerning when a fixed-rate agreement is renewed as a fixed-rate agreement, so that this specific provision is specifically applicable to, "a residential customer or a customer solicited via door-to-door
sales[...]"
This newly added text, "a residential customer or a customer solicited via door-to-door
sales" under Staff's §5.B.5.e would be superfluous if the entirety of Staff's §5.B.5 was intended to only be applicable to residential customers and customers
solicited via door-to-door sales
Family Energy further noted that Staff's narrative in support of Staff's proposal does not discuss or recommend a change in scope of customers to which revised Section 5.B.5 (and its material change and renewal provisions) would apply.
"However, without the reinsertion of the phrase [limiting the section to residential and door-to-door sales, noted above] at the beginning of Section 5.B.5., the requirements set forth therein could be construed as applying to all customer agreements, rather than targeted to residential customers and customers solicited via door-to-door sales consistent with the statutory language and the existing UBP," Family Energy said
"No record has been developed to support an expansive change to the rules to include coverage of all customer agreements in such requirements. Such a change would also exceed the Commission’s authority as expressly set forth in the statute. Accordingly, it seems that the omission of the phrase from the beginning of revised Section 5.B.5. was an inadvertent drafting error," Family Energy said
Family Energy suggested that the drafting error be corrected by reinserting the introductory phrase, "Additional terms and conditions applicable to residential customers and customers solicited via door-to-door sales include:" to the beginning of the proposed modified Section 5.B.5.
Case 98-M-1343
ADVERTISEMENT ADVERTISEMENT Copyright 2024 EnergyChoiceMatters.com. Unauthorized copying, retransmission, or republication
prohibited. You are not permitted to copy any work or text of EnergyChoiceMatters.com without the separate and express written consent of EnergyChoiceMatters.com
May 29, 2024
Email This Story
Copyright 2024 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
NEW Jobs on RetailEnergyJobs.com:
• NEW! -- Energy Regulatory Specialist
• Sr. Market Risk Analyst -- Retail Supplier
|
|
|
|