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NY Retail Choice Coalition To Appeal PSC's Broker Regulation Order
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The New York Retail Choice Coalition (NYRCC or Coalition) said that it intends to file an appeal, via a CPLR Article 78 proceeding, of the New York PSC's April 2024 broker regulation and registration order on rehearing
NYRCC stated its intent to appeal the April 2024 broker order in seeking an extension of various compliance deadlines under the April 2024 broker order until 60 days after a court decision on such appeal
See background on the April 2024 broker order here
The NYRCC alleged that, "specific provisions of the [April] Rehearing Order, particularly around
financial accountability measures, deviate unnecessarily from the legislated framework. In its
forthcoming Article 78 Petition, the Coalition will argue that the Rehearing Order’s revisions to
the ESCO UBP and DER UBP implementing new section 66-t of the Public Service Law do not fully align with new section 66-t, notably in restricting the required demonstration of financial
accountability to letters of credit although the law explicitly calls for bonds."
As previously reported, the broker order requires brokers to post a $100,000 irrevocable standby letter of credit for registration ($50,000 for consultants). The PSC declined to allow the use of surety bonds to satisfy the financial accountability requirement of PSL §66-t.
PSL §66-t, section 3 (2024) states that, "An energy
broker or energy consultant shall register with the commission
authorizing such registered energy broker or energy consultant to act as
an energy broker or energy consultant in a manner prescribed by the
commission; provided that such: (i) energy broker demonstrates financial
accountability as evidenced by a bond or other method of financial
accountability in an amount not less than one hundred thousand dollars;
and (ii) energy consultant demonstrates financial accountability as
evidenced by a bond or other method of financial accountability in an
amount not less than fifty thousand dollars."
In its original June 2023 order on broker regulation, the PSC addressed this provision by stating, "PSL §66-t(3)(a) requires, as a component of
registration with the Commission, a demonstration of financial
accountability 'as evidenced by a bond or other method of
financial accountability.' This language obviously authorizes a
demonstration of other methods of financial accountability;
i.e., not solely by a surety bond. The Legislature thus
provided the Commission with discretion to authorize other forms
of financial accountability that would be permissible. Indeed,
the Commission reads Section 66-t(3)(a) as authorizing
alternatives to surety bonds as a method for financial
accountability."
The PSC did not substantively or specifically discuss the "bond" language in addressing rehearing requests in the April order
NYRCC specifically sought extension of the following provisions and associated deadlines:
• The effective date for the new Uniform Business Practices, and associated deadline for utilities to reflect tariff amendments incorporating such UBPs
• The date that energy brokers and consultants are required to comply with the new
UBP
• The deadline for energy brokers and consultants to register with the PSC
• The deadline for ESCOs to update their customer sales agreements to
include the disclosure of energy broker or consultant compensation
NYRCC formally requested an extension of the
deadlines in Ordering Paragraphs 3, 4, 6, 7, and 9 of the April broker order until 60 days after the
court has issued a ruling on the forthcoming Article 78 Petition.
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June 3, 2024
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Copyright 2024 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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