The Department held a technical session to discuss the initiatives identified in the Competitive Market Notice of Inquiry. During the technical session, the Department announced it will form two stakeholder working groups to address the initiatives. One working group will address "Customer Awareness/Protection" initiatives: (1) automatic renewal; (2) customer complaint data; (3) marketing standards of conduct; (4) supplier enrollment reports; and (5) EnergySwitch.MA awareness. The second working group will address improvements to the Energy Switch website, including but not limited to the display of municipal aggregation products. Staff reviewed the comments received on the various issues and its proposed recommendations. The Technical Session Slides are available on the NEM Website.

The New York Court of Appeals issued a decision on May 9th in NEM v. NYPSC finding that the NYPSC does have authority to impose a price cap on ESCO rates as a condition of eligibility. NEM filed a Motion for Reargument of the Court of Appeals decision this Monday.

While the Court found that ESCOs are not within the statutory definition of “gas corporation” and “electric corporation” and therefore not subject to the NYPSC’s direct ratemaking authority under Public Service Law Article 4, the Court found that the NYPSC under its authority to regulate utilities’ transportation of ESCOs’ gas and electricity, may condition access to utility infrastructure upon ESCOs’ compliance with a price cap on gas or electricity.

“Because the PSC is empowered to regulate utilities’ transportation of gas and electricity and created the ESCO markets for the benefit of consumers, and because the legislature has delegated to the PSC the authority to condition ESCOs’ eligibility to access utility lines on such terms and conditions that the PSC determines to be just and reasonable, it follows that the PSC has authority to prohibit utilities from distributing overpriced products by conditioning ESCOs’ access on a price cap. That is, the statutory framework permits the PSC, pursuant to its authority to regulate the energy market, to impose a price cap on ESCOs as a condition of eligibility. Therefore, although the PSC has no direct ratemaking authority over ESCOs, it did not exceed its statutory authority in determining that public utility transportation of energy sold by ESCOs is not “just and reasonable” if ESCOs are charging consumers more than that charged by public utilities. Thus, the courts below should have issued a declaration to the effect that the PSC did not exceed its authority under the Public Service Law or violate petitioners’ constitutional rights in issuing the Reset Order.”

NEM's Motion for Reargument explained that "[e]nabling the PSC to impose restrictions through “conditioned access” to utility infrastructure that it could not impose through direct statutory authorization would allow the PSC to bypass the very limits the Legislature imposed on it by expanding its authority over “gas and electric companies” (public utilities over which the Legislature gave the PSC the power to set rates) to regulate ESCOs – over which the Legislature specifically declined to permit the PSC to decide rates. The PSC repeatedly recognized its lack of jurisdiction over rates charged by non-utilities."

In addition, "[c]reating a back-door power of “conditioned access” that has the effect of permitting the PSC to regulate beyond the bounds that the Legislature has specifically delimited would conflict with this Court’s consistent jurisprudence" on statutory interpretation.

The full texts of the Court of Appeals Decision and NEM's Motion for Reargument are available on the NEM Website.

At yesterdays' agenda meeting, the Commission recognized the twentieth anniversary of the natural gas choice program in the Commonwealth after the passage of the Natural Gas Choice and Competition Act. In terms of shopping rates achieved, "[m]ore than 3 million Pennsylvanians now receive natural gas service, and more than 435,000 customers currently get their natural gas supply from a competitive Natural Gas Suppliers – accounting for nearly half of Pennsylvania’s total load of natural gas usage."

Chairman Brown Dutrieuille's statement recognized the role of consumer education, in particular, "in February 2016, the Commission launched a new standalone website for PAGasSwitch – further enhancing the ability of online natural gas shopping customers. In just two short years as a standalone site, PAGasSwitch saw an increase of approximately 150 percent in both total and unique visitors – and a nearly 350 percent increase in website 'sign up' clicks for shoppers looking to enroll with suppliers."

The Chairman recognized the role of the Office of Competitive Market Oversight in facilitating the market and also developing consumer protection regulations. She also thanked "all the people who make this process work: PUC staff – consumer advocates – our natural gas distribution companies – the supplier community – and other key stakeholders."

The full text of Chairman Brown Dutrieuille's Statement is available on the NEM Website.