PULP Files Reply Comments on the PSC’s Proposed ESCO Marketing Standards

PULP has submitted reply comments in the PSC proceeding regarding new standards applicable to Energy Service Companies ("ESCOs") operating in the state. In the comments, PULP rebutted arguments and claims of ESCOs

• that early termination fees should be permitted when customers switch back to the distribution utility or to another ESCO for service
  
• that ESCOs should be exempt from regulatory assessments
  
• that ESCOs should be allowed to switch a customer's account from a utility or other ESCO based on their having obtained a request from a third party non-account holder without the express consent of the customer, and
• that ESCO complaint statistics issued publicly by the PSC should not disclose categories of complaints regarding any particular ESCO.

For further information, see ESCO Marketing Practices Subject of New PSC Proceeding and PULP's Initial Comments.

High Natural Gas Prices Signal Trouble Next Winter for Low Income Customers

Since January 2008, natural gas prices have continued to rise. Here is a chart from Apache Corp., a major independent producer of natural gas and oil, showing the price rise at Henry Hub in Louisiana. Click on the chart to enlarge it.



New York prices are even higher, due to transportation costs. This signals trouble for electricity customers this summer (see NY City Wholesale Electricity Prices May Rise 89% Due to Market Design and Higher Natural Gas Prices), and more trouble next winter for customers who heat with natural gas.

There are indications that the recent runup of natural gas prices, 57% thus far in 2008, may not recede. See Global Demand Squeezing Natural Gas Supply. Many natural gas customers are on the edge now, with large unpaid account balances built up during last winter or even previous winters that have not been paid off. If they are hit with high bills they cannot afford, and break a written payment agreement with their utility, they are subject to termination of service.

Incomes of low income households in New York have not kept pace with rising costs in recent years. See Pulling Apart in New York: An Analysis of Income Trends in New York State. The current surge in energy prices is making their energy burdens, already high, unaffordable. See The Economics of Low Income Energy Assistance in New York: No Wonder They Call Economics the "Dismal" Science.

National Grid recently filed new rates that would, if approved by the PSC, increase delivery rates by 33%, That, coupled with expected price increases for the gas, will increase energy burdens for the poor. The company proposes to reduce rates $5 per month for about 50,000 customers who receive HEAP, beginning a year from now, obviously insufficient.

Reform of the utility, public assistance, and HEAP systems for dealing with low income utility customers is necessary. To list just a few steps that should be taken

• Utilities need to adopt better low income rate programs.
• The PSC must vigilantly enforce consumer rights under HEFPA. For example, see PSC Nullifies National Grid's $1,000 "Grand Plan" Requirement for Utility Service.
• The PSC should establish performance standards that would discourage termination of service as a collection tactic. See Candle Fires: A Symptom of "Rolling Blackouts" Affecting Low-Income Households.
• The PSC should strive to set more stable and predictable rates because fragile low income household budgets cannot withstand unexpected retail price surges of the type encouraged in recent years to promote competition
  
• Additional funding for HEAP and reform of its benefit structure is needed. See PULP Urges HEAP Program Reforms.
• OTDA should update public assistance heating allowances which have not been reset since 1988
• Administrative restrictions created by OTDA for the emergency utility assistance program should be eliminated.

NY City Wholesale Electricity Prices May Rise 89% Due to Market Design and Higher Natural Gas Prices

In a May 15 2008 Summer Market and Reliability Assessment report by FERC staff, FERC Commissioners were advised (slide 6) that this summer wholesale market prices for electricity in New York City may exceed last summer's prices by 89%. Driving this increase is the major increase in the price of natural gas (slides 7 - 8). The effect of the natural gas price increase is amplified by the design of NYISO wholesale electricity markets promoted by the New York Public Service Commission and FERC which pay all sellers the same price even if, as in the case of electricity produced from wind, water, uranium and coal, the cost of production has not risen in tandem with natural gas prices.

At a May 21 webcast meeting of the New York Public Service Commission, New York PSC staff indicated that, based on recent NYMEX data,

the electric market energy prices this summer could be 55 to 66 percent higher compared to last summer's actual electric market energy prices. Therefore, the trend is for higher electric market energy prices for the 2008 summer period compared to last summer.

See webcast minute 54 - 58, transcript p. 40. The lower New York PSC estimate may reflect different data sources used by FERC, an averaging of expected New York City price increases with upstate New York, or other factors.

The effect on retail rates will depend on a number of factors, including the utility, features of its retail rate plan, and its energy purchasing and hedging practices which are considered trade secrets. In addition, the impact may depend on the customer's rate classification (e.g., industrial, commercial, residential) and whether the customer has fixed or variable rates.

In general, to effectuate its 1996 "vision" of a deregulated power generation sector, the PSC promoted the eventual flow through of functionally deregulated NYISO prices to all customers, starting with larger industrial and commercial customers first, and with a more gradual introduction of such pricing to small commercial and residential customers. See Disconnected Policymakers. [Other states that restructured are encouraging utilities to retain or build power plants under state cost of service regulation [to avoid purchases from sellers with market-based rates allowed by FERC], and to make necessary purchases using a diverse portfolio of energy supply sources, with a mixture of long term contracts, that relies as little as possible on the volatile spot market prices].

The effect on retail residential rates of these large wholesale spot market price increases will depend on several factors. Some utilities like Con Edison and Orange & Rockland have been allowed by the PSC to buy much of their power at NYISO spot market prices, perhaps 40%. Also, some of their long term contracts may be indexed to NYISO spot market prices or fuel price indexes. As a result, prices of some of their off-spot market purchases may also increase significantly. These utilities most closely implemented the PSC and Enron-promoted restructuring model, and soon after the advent of the NYISO spot markets were allowed by the PSC to change their rates every month to pass through the effects of their recent wholesale energy purchases. This shifted market risk in the flawed electricity markets to consumers. See Consumers in Peril, Why RTO-Run Electricity Markets Fail to Produce Just and Reasonable Electric Rates, APPA, 2008.

Con Edison has indicated that this summer its residential customers may see increases of "only" 13%. Summer Juice Bill to Give Jolt. Con Edison residential rates spiked significantly in July 2007, so the large expected price increase for the summer of 2008 might be on top of a prior record spike. See Excelsior! Con Edison Residential Rates Spike (Again), PULP Network, September 6, 2007.

Upstate residential utility customers will not face the increases likely to affect customers of Con Edison and Orange & Rockland. RG&E maintained the benefit of low cost power generation by not selling some its power plants, and offers a fixed price so customers who chose that rate option will see no increase this summer. NYSEG residential customers who chose a fixed rate plan will see no increase. National Grid is in a long term rate plan that stabilized rates for residential customers.

Large customers, however, are likely to see increases that will reflect more directly any increases in NYISO spot market prices.

Why do electricity prices go up so much when natural gas-fired generation accounts for only about a quarter of the electricity used in the state? According to a NYSERDA report, there is a diverse mix of fuels for the state's electricity sector:

By fuel type:
Nuclear . . . . . . . . . . . . (26%)
Natural Gas . . . . . . . . . . (25%)
Hydro . . . . . . . . . . . . . . . (18%)
Coal . . . . . . . . . . . . . . . . (13%)
Net Imported Electricity (12%)
Petroleum . . . . . . . . . . . . (4%)
Biofuels . . . . . . . . . . . . . (2%)
Wind. . . . . . . . . . . . . . . . (0.3%)

NYSERDA, Patterns and Trends 1992 - 2006, Jan. 2008. Recently, there has been an increase in the amount of wind generation. In the NYISO markets, all sellers -- even those with much lower cost electricity -- are paid the same price paid to the seller whose output clears the market, which in the New York City market is almost always a natural gas peaking unit during periods of heavy usage.

Natural gas prices have soared since this system was adopted, and recent trends indicate the possibility of sustained higher prices. See Global Demand Squeezing Natural Gas Supply, NY Times, 5/29/09. The value to consumers of a fleet of power plants with diverse fuels was lost when, with encouragement by the PSC, New York's utilities sold their power plants to new owners. Now electricity for customers must be bought at market rates based on the price demanded for the most expensive output at any time. The value of lower cost generation is now reaped by the wholesale market sellers.

In other states, where utilities still hold power plants under full state regulation, their price increases have been less than New York's, which are now second only to Connecticut (another "restructured" state) in the continental states. See Total Average Delivered Retail Electricity Price, New York vs. Regulated States, 1991 - 2007 (PPI) showing that the electricity price gap between New York and other states has increased since the advent of "restructuring" and greater reliance on deregulated wholesale market prices. See also, Decade of Deregulation Felt in Climbing Bills, describing the Maryland experience. No state has adopted a regime similar to New York's since the demise of Enron in 2001. Some, like New Mexico and Virginia, changed their direction and retained ownership of power plants by state regulated utilities, thus avoiding purchases affected by the high federal market prices. Other states, like Connecticut, have reauthorized their utilities to build new power plants that would be under state cost of service regulation.

Bill Would Require PSC to More Closely Scrutinize Telephone Area Code Changes

State Assembly members have filed a bill, A11082, that would require the Public Service Commission to more closely scrutinize the need for telephone area code changes, and to investigate in a public evidentiary process the possibility of avoiding the cost and inconvenience of unnecessary area code changes by reclaiming existing numbers that are unused and thus stranded in sparsely populated areas. The memorandum in support of the bill indicates that it would apply to the pending consideration of a new area code in the current 315 area code region in central New York.

An identical bill was introduced in the Senate, S08506

There are more than 5 million unused numbers currently in the 315 area, but in recent years many local exchange codes with blocks of 10,000 numbers each were allocated to sparsely populated localities in rural areas that would appear to have no need for them. The PSC last month decided to go ahead with plans to create a new area code in the 315 region, denying a request by PULP for an on the record proceeding to examine necessity of the action and the possibility of freeing up redundant blocks of 10,000 numbers now stranded in areas where there is no need for them. See PSC Denies Request for Open Inquiry and Continues with 315 Area Code Changes.

In late 2007 the PSC finally halted its practice of giving out numbers 10,000 at a time in rural areas of 315, and implemented a 1,000 number at a time system. In the brief period since implementation of that reform

• the rate of NXX codes issued for the 315 area has fallen drastically, with only one net new NXX assigned in the first quarter of 2008
• some unused NXX codes have been returned by telephone companies and made available to meet needs anywhere in the 315 area
• the number of available NXX codes for use anywhere within the 315 area has risen to 100 from a low of 93 in mid-2007
  
• NANPA extended a projected number exhaustion date, and
  
• an April 2008 NANPA website report does not indicate that the 315 area code is in "jeopardy" of exhausting its numbers.
  

PULP has asked the PSC to reconsider its action and to hold a public hearing to determine if redundant NXX codes allocated in recent years to sparsely populated areas, which may be only slightly used, can be "decontaminated" and reclaimed for use where there is a real need, preventing cost and inconvenience to millions of telephone customers. See PULP Asks PSC to Reconsider Refusal to Investigate Alternative to New Area Code in 315.

Assembly Passes Bill to Expand Low-Income Telephone Lifeline Assistance

Background
Telephone Lifeline and Linkup assistance can provide meaningful reductions in the cost of telephone service for low-income persons. For example, the monthly bills of a low-income Verizon Lifeline customer are reduced by approximately $13.50. Linkup can reduce the Verizon charge for a premises visit to install phone service from approximately $91 to $5.

All states were required to provide Lifeline assistance in the federal Telecommunications Act of 1996. Under that statue, the FCC adopted regulations which establish minimum federal Lifeline and Linkup benefits and which give states incentives to supplement the federal. States are allowed to devise their own list of categories of eligible customers. The New York PSC oversees the state Lifeline and Linkup program. The PSC fostered creation of the Targeted Accessibility Fund of New York, Incorporated (TAF) in 1998 to administer the collection and distribution of the state portion of certain universal service programs, including Lifeline, emergency services E911, Public Interest Pay Phones, and the Relay System.

Eligibility for Lifeline and Linkup is based upon the customer's income or receipt of benefits in a list of programs that have an income test. For New York Verizon customers, the assistance programs that currently trigger eligibility for Lifeline and Linkup are:

• Supplemental Security Income (SSI)
• Home Energy Assistance Program (HEAP)
  
• Food Stamps
• Medicaid
• Veteran's Disability or Surviving Spouse Pension
• Family Assistance (TANF)
• Safety Net Assistance
  

PSC Inattention
In contrast to other states, the New York PSC has issued no official regulations defining Lifeline eligibility. Over the course of many years, the PSC has issued several orders regarding the Lifeline and Linkup programs and approved Lifeline and Linkup tariffs of the various telephone companies as they arose in rate cases. As a result, there are different Lifeline eligibility standards and different price reductions for telephone customers in New York state, depending on their telephone company. The Universal Service Administrative Company (USAC) has a web page where one can look up the Lifeline program details of each New York Telephone Company.,

The New York PSC issues no regular reports on universal service issues and Lifeline program enrollment.

New York Lifeline Enrollment Plunging
As a result of changes in the state public assistance laws and the absence of any adjustment of public assistance levels in the past eighteen years, many people are no longer eligible for assistance in programs such as TANF, which confer Lifeline eligibility. It appears that this -- coupled with other important factors -- contributes to the plunging enrollment in New York's Lifeline program. Low-income New York telephone customers are missing out on important Lifeline and Linkup benefits, as demonstrated by the chart below: [Click on Chart to enlarge]

At its peak in 1999, the Lifeline program assisted approximately 746,000 New York customers, not even half of the number of persons financially eligible then. In recent years, the number of Lifeline customers has been shrinking, to about 310,000 at the end of 2007. As a result of the shrinkage since 1999, we estimate that low income telephone customers in New York who once received Lifeline assistance are now paying $60,000,000 per year more than they would if Lifeline enrollment had not declined.

Other major factors affecting the enrollment downturn may be Verizon's refusal to provide Lifeline assistance to eligible customers who purchase their local telephone service as part of packages that also include long distance or other services, and the migration of customers to cable telephone service providers who do not now provide Lifeline rate reductions. See Verizon Re-Launches Automatic Enrollment for Lifeline. Also, some customers eligible for Lifeline may have migrated to certain wireless service providers, such as Verizon Wireless, who do not offer any Lifeline rate reduction. See Reduced Rate Wireless Lifeline Service Now Available in New York.

PULP estimates that less than 15% of the telephone customers in New York state who are financially eligible for Lifeline actually receive the benefit today .

Adding Eligibility Categories
One solution to reaching more low income households with assistance to make their telephone service affordable is to increase the eligibility-conferring categories that qualify a customer for the reduced rates. In a 2004 order, the FCC increased categorical eligibility for Lifeline assistance to include recipients of HUD Section 8 housing assistance and the National Free School Lunch Program.

The New York PSC, however, did not follow suit.

Legislative Action
The New York Assembly on May 14, 2008 passed a bill, A02533 designed to address, in part, the severe shrinkage in the number of customers receiving reduced price telephone service.The new bill would establish Lifeline and Linkup eligibility for customers who receive benefits in the following additional categories:

• National School Lunch Program
• New York State Earned Income Tax Credit
• Child Health Plus, Family Health Plus, or other similar health insurance programs
• Additional programs designated by the PSC
  

In an era of rising costs and stagnating incomes for lower income households, the New York PSC, apart from costly but ineffective advertising campaigns, has made no real progress toward making telephone service more affordable to customers eligible for, but not receiving Lifeline assistance. Indeed, the state is losing ground. New York state needs to reverse the downward trend in the number of customers receiving Lifeline assistance, and to establish a goal of providing the benefit of reduced Lifeline rates to all eligible customers. Improving the program will enable households to afford telephone service without hardship.

Should Telecom Customer Migration Rules be Extended to New Carriers?

A request by Time Warner (TW) Telecom to have the PSC’s End User Migration Guidelines extended to new providers, including Voice over Internet Protocol (“VoIP”) and cable companies offering voice service, may open the door to a fresh regulatory landscape in New York.

The End User Migration Guidelines were originally implemented in New York in January 2001 and were greatly expanded in June 2002. The objective of the Guidelines is to ensure that customers can migrate from one competitive local service provider (a “CLEC”) to another and from a CLEC to the incumbent (“ILEC”) without encountering delays, service problems, slamming, or cramming. The Guidelines established general business rules and privacy protocols as well. In fact, the Guidelines have been a major success in aiding customer migration between local carriers and have since been adopted in other states, oftentimes in their entirety.

New types of players providing local telecom services have joined the marketplace since adoption of the Guidelines in 2002. TW Telecom says in its Petition that it is time to consider expanding the applicability of the Guidelines. While the company’s Petition was just filed this week and the Commission has not yet had an opportunity to respond, this could be a helpful step for all consumers since the same uniform set of rules would apply as customers switch from provider to provider regardless of the technology used. Most customers don’t distinguish between switched and IP technologies when selecting a telecom provider and are already permitted to keep their telephone number when they go, for example, from Verizon to Cablevision. Shouldn’t the same migration rules apply as well?

Currently, residential customers seeking to change service providers from the incumbent to a VoIP provider would not be protected by the Migration Guidelines. Unnecessary delays could occur and service could be temporarily lost, without any defined recourse. However, because voice services offered by cable television companies and VoIP services in general are not regulated by the Commission, could they even be brought under the Migration Guidelines’ banner without state legislative authorization or FCC approval? And, if so, could this regulatory change be extended to other areas, such as requiring these new providers to be certificated as CLECs and offer discounted Lifeline service with compensation through the existing federal and state pools?

Regulatory extension of the Migration Guidelines to VoIP and cable voice customers would provide benefits to these new providers because it would add a level of certainty for their potential customers. Once this occurs, however, and a precedent has been set, should the Commission venture further and make the differences between old and new service providers virtually indistinguishable? Permitting reimbursement through the state Targeted Accessibility Fund and the Federal Universal Service Fund for offering Lifeline could be yet another positive development.

Lou Manuta

NY PSC Asks FERC Not to Limit Access to NYISO Market Data

The New York Public Service Commission (PSC) recently filed comments with the Federal Energy Regulatory Commission (FERC) warning that a proposed new FERC rule could limit access to information and market data from the New York Independent System Operator (NYISO) needed by the PSC for its oversight. The NYISO operates private markets for determining wholesale electric rates, set by sellers given "market rate authorization" by FERC, which have been criticized for their high prices and failure to assure adequate future supply. See, e.g., Cornell Professor Gives Low Marks to NYISO Electricity Markets.

The new regulations were proposed as part of a FERC initiative to address four narrow issues involving the "organized" markets it has fostered, viz,

• demand response and market pricing during operating reserve shortages;
• long-term power contracting;
  
• market-monitoring policies; and
  
• the responsiveness of Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) to their stakeholders and customers

The "organized markets" such as the NYISO "day-ahead" and "real time" markets operate under FERC-approved tariffs. They essentially match production with demand and, like a cartel, set the same price for all sellers. In the 15 states that "restructured" their electric utilities a decade ago, and allowed power plants owned by state regulated utilities, these markets now play a major role in determining retail prices, which are no longer based on cost of energy production, and instead are based on the market price.

In an earlier phase of the case, more than forty consumer groups concerned about rising RTO and ISO rates and market manipulation asked FERC to broaden its inquiry to examine whether reliance on the private ISO and RTO utilities and the "organized markets" they operate to set is resulting in the "just and reasonable" wholesale rates for electricity required by law under the Federal Power Act. See Public Power, Industrial and Residential Consumer Groups Demand FERC Review of Organized Spot Markets.

FERC rebuffed the consumer groups in a Notice of Proposed Rulemaking issued on February 22, 2008. FERC refused to widen its inquiry, saying consumers should raise their concerns whether FERC is effectuating the "just and reasonable rate" requirements of the Federal Power Act within the industry-dominated "stakeholder" committee structures of the private ISO and RTO utilities. The ISO and RTO rules tend to marginalize and minimize the weight of consumer interests.

In response to FERC's Notice, the New York PSC filed comments objecting to language in the new rules which could be read to inhibit the flow of information from the NYISO to the PSC except in "enforcement" matters. This could sharply limit information routinely needed by the PSC to investigate and assess, for example, whether sellers are engaging in tactics that drive prices up, prior to any enforcement action. As a result, the ability to get data and information for "enforcement" purposes only could be useless if the PSC could not get access to data for routine analysis and investigation prior to any enforcement decision. The PSC stated:

Federal and state governments should be working in partnership to ensure that markets are working effectively. By refusing to allow state commissions access to this information, the cloud of suspicion by consumers and politicians of the competitive market may continue to grow. In some states, like New York, there have been calls by legislative leaders for the reversal of the competitive market. Consequently, it is vital that state commissions be able to demonstrate that the presence of a competitive market does not disable the state from protecting retail ratepayers and that the state commission is capable of carrying out its statutory obligations in a competitive market.

Even though FERC has jurisdiction to set the wholesale electric rates and rates for bulk transmission, the PSC has jurisdiction and a role to play to enforce the NYISO's state law duty, as a New York electric corporation, to operate and function in the public interest. As part of that function, the PSC can now demand data from the NYISO to ascertain if, for example, market power is being exercised, in a pre-enforcement context. See, e.g., NY Department of Public Service Interim Pricing Report on New York State's Independent System Operator. The PSC rightly objected to any new anti-consumer and anti-state rules that might be read by FERC so as to limit future PSC access to market data and information from the NYISO and its internal market monitoring unit.

Parties File Statements Supporting Proposed Settlement of Con Edison Queens Outage Prudence Proceeding

The New York State Public Service Commission (PSC) is considering a Joint Proposal for ending the PSC proceeding to review prudence of costs associated with the extended Con Edison outage in Queens beginning July 17, 2006. See Parties Propose Resolution of Con Edison Queens Outage Prudence Proceeding. The signatories to the proposal have filed their statements in support:

• Con Edison

• Department of Public Service Staff

• Consumer Protection Board

• Western Queens Power for the People

• PULP

• Assemblyman Richard L. Brodsky
  

The PSC has established a schedule for further comments and will receive public comment at informational forums and public statement hearings on May 27 and 28 in Queens.

AMPS, a Submetering Company, Withdraws Request for Court Injunction to Shut off Tenant's Electricity

In an apparently unprecedented move, American Metering and Planning Services (AMPS), a company that provides billing and metering service to apartment building owners who submeter electricity to tenants, commenced a lawsuit to collect unpaid charges from a tenant, claiming that AMPS is “entitled to a mandatory injunction requiring . . . access to the subject apartment for the purpose of terminating and disconnecting electrical service thereto.”

AMPS obtained an ex parte Order from a judge of the New York Supreme Court, Bronx County, requiring the tenant to appear in court to show cause why the requested injunction should not be issued. The court papers filed by AMPS did not reveal the existence of a Public Service Commission (PSC) submetering Order, which had granted submetering authority to the tenant's landlord, not AMPS. That order recites a representation of the landlord that “[i]n no case will electricity be shut down in an apartment for a failure to pay electricity.” The order also requires that in no event will the submeterer charge more for service than Con Edison would charge the tenants if they were separately metered residential customers of the utility.

The tenant contacted PULP for assistance. PULP filed a complaint on the tenant’s behalf with the PSC Office of Consumer Services, seeking to resolve disputes over the amount of the bills and to enforce HEFPA. To PULP’s knowledge, the tenant’s complaint to the Office of Consumer Services is the first to ask the PSC to enforce the price cap and HEFPA protections contained in orders routinely issued to grant submetering authority. PULP issued discovery questions to AMPS under the PSC discovery rules.

PULP appeared in court, opposing the requested injunction for access to the tenant's apartment to shut off the electricity, and filed a cross motion to dismiss and a brief, making the following points:

• The submetering company has no capacity to sue, because only companies authorized by the PSC can sell electricity, and the PSC authorized the building owner, not the submetering company, to sell electricity to residential customers at the building;
• The complaint failed to allege that Home Energy Fair Practices Act (HEFPA), contained in Article 2 of the Public Service Law and Part 11 of the PSC’s implementing regulations which prescribe numerous conditions that must be met before a utility can terminate service were satisfied. For example, the notice of termination on its face was defective, failed to proffer a deferred payment agreement (DPA) along with the termination notice; and failed to inform the tenant of the availability of PSC complaint procedures to resolve disputed bills;
• There is no provision in HEFPA that allows a typically unrepresented residential customer to be ordered to appear in New York State Supreme Court to shut off service;
• PSL Section 75 bars any recovery because the complaint seeks to recover charges that have not been fixed by order of the PSC;
  
• The doctrine of “unclean hands” bars equitable relief because the plaintiff failed to disclose to the court that the PSC Order governing submetering in the building was issued on the premise that electric service would not be terminated for nonpayment;
• Because Public Service Law 43.2 provides for a Commission determination of the defendant’s complaint regarding the bills claimed to be due, and the HEFPA violations, the PSC has primary jurisdiction

Before the date for hearing the tenant's cross motion to dismiss, AMPs discontinued the action.

For further information about submetering see PULP's Help Center and web page on submetering.

PULP Asks PSC to Reconsider Refusal to Investigate Alternative to New Area Code in 315

The PSC is proceeding with plans either to split the 315 area code region in Central New York into two codes, requiring many customers with 315 area codes to change their numbers, or to create an "overlay" area code for new numbers as they are added that will require callers to dial 10 digits for every call, even for a local call across the street. 315 Options Present Problems: Public Hearings Might Help PSC Determine the Best Area-code Alternative.

In recent years, the PSC allowed competitive telephone companies more than 1.25 million numbers in more than 125 new exchanges in sparsely populated rural areas of the 315 and 518 area codes. See PSC Considering "Area Code Relief" For 315 -- Where Did All The Numbers Go?

PULP requested an investigation whether reclamation and reallocation of telephone numbers and exchanges now stranded in rural areas with an oversupply can obviate the need to create a new area code in the 315 area . See PULP Asks PSC to Investigate Need for New Telephone Area Codes in the 315 Region.

PULP's motion was denied by the PSC in an April 25, 2008 Order. See PSC Denies Request for Open Inquiry and Continues with 315 Area Code Changes.

PULP filed a petition for rehearing today asking the PSC to reconsider its April 25, 2008 order, arguing that even if the oversupply of numbers and exchanges in rural areas had been lawfully allocated, the Commission has ample power to reclaim them in order to avoid the larger inconvenience and cost to consumers of area code changes. Further, PULP points to new evidence indicating that a combination of newly implemented number conservation policies and reclamation of numbers not needed in sparsely populated areas could avert area code changes that will impose cost and inconvenience for many customers.

HEAP Program to Close in May

New York's 2007 - 2008 federally funded Home Energy Assistance Program (HEAP) will close soon. According to the OTDA website

The Regular Benefit component of the 2007-08 HEAP program has been extended to Friday, May 16, 2008 however the Emergency Benefit component has been extended until Friday, May 30, 2008. After May 16th, Applicants must be in an energy emergency situation, which is defined as having less than a 10 day supply of fuel, having utility service terminated, or having utility service scheduled for termination. In addition, applicants must not have enough resources to take care of their emergency themselves.

As of mid-April, the 2007 - 08 HEAP program had provided much needed energy assistance benefits to more than 940,000 New York low-income households this year with its federal funding of approximately $248 million. President Bush has proposed reduced funding for next year's federal LIHEAP program, which provides all the funds for New York's HEAP program. See Bush Proposes LIHEAP Cuts in 2009 Budget.

Next year's HEAP program is likely to begin November 1, 2008. A draft state plan for use of next year's HEAP funding is expected to be released by OTDA for public comment in the next month or so.

When HEAP is not available utility customers who are unable to pay utility bills, whose service has been terminated or is threatened to be terminated, and who have no alternative payment arrangements possible may be eligible for a grant or loan from the local social services department that would cover the most recent four months service. Utilities are required to restore or continue service with the partial payment. For further information see PULP's web page on utility assistance programs. See also the chapter on Public Assistance Allowances for Energy and Utility Costs in PULP's law manual for advocates.

Protection of Customers of Cooperative Utilities Under Power Authority Regulations

Co-op Utilities Are Exempt from Public Service Law Requirements and PSC Oversight
Yesterday we received a question about the rights of customers of Steuben Rural Electric Cooperative. The day before, the utility turned off service to approximately 35 of its customer-members due to unpaid bills. Customers said there had been a printed warning message on a recent bill, but they say they received no separate notice of the actual shutoff. The utility demanded 100% of the amount owed as a condition of restoring service. When customers who could not afford that sought assistance from the local department of social services, a HEAP grant was proffered, but was rejected by the utility, which insisted upon full payment of all arrears.

For most New York utility customers, the Home Energy Fair Practice Act (HEFPA) provides strong procedural and substantive remedies for consumers to protect against abrupt termination of services and harsh collection practices. These protections include advance notice, the right to pay arrears over time under a deferred payment agreement (DPA), the right to contest the correctness of charges through a complaint to the Public Service Commission (PSC), and recourse to the PSC Hotline (800-342-3355), whose staff are empowered to resolve controversies involving termination or denial of service and can direct a utility to provide service or refrain from termination of service.

HEFPA is contained in Article 2 of the Public Service Law. Section 67 of the New York Rural Electric Cooperatives Law provides

Cooperatives . . . . shall be exempt in all respects from the jurisdiction and control of the public service commission of this state and shall not be subject to the provisions of the public service law.

Therefore, HEFPA does not apply to co-op utilities and so PSC complaint and Hotline remedies are not available to co-op utility customers.

Limited Customer Protection Under Regulations of the Power Authority of the State of New York
Are customers of co-op utilities then without any protection from arbitrary shutoffs and harsh practices?

In a word, no.

Cooperatives and small municipal utilities that receive most of their power from the Power Authority of the State of New York (NYPA) are required, under NYPA regulations having the force of law, to provide somewhat weaker protections that resemble those of HEFPA. See 21 NYCRR Parts 451, 452, 457, 459. See also, Lathrop v. Village of Bath, 112 A.D.2d 769 (4th Dept. 1983) (HEFPA deposit limits do not apply to municipal utility receiving its power from the State Power Authority).

The NYPA regulations address termination of service in Part 459:

Any municipality or rural electric cooperative purchasing essentially all of its power requirements from the Power Authority f the State of New York shall incorporate into its service rules and enforce the procedures governing discontinuance of electric service as set forth in sections 459.2 through 459.14 of this Part.

According to NYPA, Steuben Rural Electric Cooperative is one of 47 municipalities and coops that receive a low cost hydropower allocation from NYPA, and has a long term "partnership" arrangement with NYPA for NYPA to provide all its energy requirements. Thus, it appears that the Steuben Rural Electric Cooperative is subject to the NYPA rules and must incorporate them into its own rules.

NYPA Requirements
What do the NYPA rules require regarding the disconnection of service for nonpayment by utilities subject to its rules?

One would never know from searching the NYPA website, which appears to have no ready information regarding protection of residential consumers.

Here are salient features of the NYPA regulations, which are published in volume 21 of the Official Compilation of New York Codes, Rules, and Regulations:

• Section 459.3 requires a separate termination notice and forbids termination “until at least 35 days have elapsed from date payment was due. Additionally, such termination cannot occur until: (1) at least 15 days after written notice has been served personally upon a customer or resident 18 years of age or older; or (2) at least 15 days after the utility mails written notice by a registered or certified letter to the customer at the address at which service is received...."

• Section 459.14 requires the utility to offer DPAs: "Installment plan. No utility shall terminate service unless the utility has first offered a monthly installment plan that is just and equitable. Each utility must offer a just and equitable monthly plan to all customers whose service has been disconnected for nonpayment. To the extent practicable, the monthly installment plan should be based on the customer's ability to pay, past payment history, the amount of indebtedness, and the availability of other resources. The monthly installment plan should require a customer to pay current bills and a portion of past indebtedness and may include a provision for payment of interest on the arrears. Such agreement may provide for a downpayment of the arrears provided that no such downpayment shall exceed one-half of the amount of the arrears or three months average billing, whichever is less. Such agreement may be renegotiated and amended where the customer can demonstrate that there have been significant changes in his or her financial circumstances which have arisen due to conditions beyond the customer's control.

• Section 459.13 requires prompt reconnection of service when the customer pays the bill in full, enters into a DPA, receives a payment from a social services official, or when there is a "direction by the Power Authority of the State of New York.... The direction to reconnect service . . . . will only occur when it reasonably appears, in exceptional circumstances, that there is legitimate dispute about an unpaid portion of the arrears claimed by a utility; where an apparent error in the disconnection of service has occurred, or where a serious impairment to human health or safety seems to exist. . . .

Advance notice alerts the customer of future utility action and the claimed basis for it, which is of constitutional due process significance when a governmentally owned utility, such as the municipal utilities under NYPA regulations. In addition to preparing a defense in the case of error, the notice gives the customer who does owe the utility money time to find resources to pay the bill, negotiate a payment plan, or, if that is not possible, to seek public assistance or HEAP when HEAP is available.

As stated by the Supreme Court in a case requiring notification to customers of their right to appeal decisions to terminate service, “Utility service is a necessity of modern life; indeed, the discontinuance of water or heating for even short periods of time may threaten health and safety. And the risk of an erroneous deprivation, given the necessary reliance on computers, is not insubstantial.”There is no information at the NYPA website regarding how a customer can request intervention by NYPA to correct "an apparent error in the disconnection of service."

Customers of utilities subject to NYPA regulations apparently are not notified of possible recourse with NYPA in the event their utility makes an "apparent error in the disconnection of service...." In at least one instance, it appears that a Steuben co-op customer became homeless as a result of a disconnection without the advance notice required by the NYPA regulations.

There is a strong public interest in minimizing wrongful denials or terminations of utility service, which can have severe repercussions and costs for individuals, families, communities and the general public. Unsafe situations frequently flow from a lack of utility service or use of less safe alternatives. See Candle Fires: A Symptom of "Rolling Blackouts" Affecting Low-Income Households In at least one instance a utility's refusal to accept a HEAP payment may have contributed to the death of a customer. See Lawsuit Involving Death of Velma Fordham Settled by National Fuel.

Rejection of HEAP
In the absence of a statutory obligation, the duty of a utility to accept a HEAP payment as sufficient to reinstate service when it does not cover all arrears, for example, by treating it as a downpayment on a new DPA, is governed by a HEAP vendor agreement between the utility and the state agency that oversees HEAP, the Office of Temporary and Disability Assistance (OTDA). OTDA has been allowing utilities not to "acknowledge" a HEAP payment and to refuse to restore service at the utility's option.

PULP has questioned whether the stance of OTDA, which essentially allows utilities to decide which eligible HEAP households will have their crisis resolved, violates the requirement in federal law that a state's crisis assistance plan must actually provide for prompt resolution of emergencies of households eligible for Emergency HEAP. See PULP Urges HEAP Program Reforms.

In addition a utility subject to NYPA regulations may be obligated to restore service or abstain from termination of service when a local social services office proffers a four-month emergency utility assistance grant under Social Services Law 131-s. Section 131-s by its terms applies to "gas corporation, electric corporation or municipality," and does not espressly mention a cooperative. When this law creating the state utility assistance program was enacted as Chapter 895 of the Laws of 1981, it contained a dovetailing provision added to the Public Service Law, PSL § 65-b, which requires utilities (under PSC jurisdiction) to provide service "if the utility corporation or municipality receives, or is entitled to receive, a direct payment or receives a guarantee of payment from a social services district." These payments referred to in PSL § 65-b include those made under Social Services Law § 131-s.

The NYPA regulations, 21 NYCRR Part 459.13 essentially borrow the language of PSL § 65-b, requiring a municipal or cooperative utility to provide service upon "receipt of a commitment of a direct payment or a written guarantee of payment from the local social services commissioner...." So, although there is no explicit reference to Social Services Law 131-s in the NYPA rules, just as there is none in PSL § 65-b, it could be argued that the duty to restore service upon receiving a proffer of a four-month 131-s payment from a social services official should also adheres to utilities subject to the NYPA regulation.

PS, 5/20/08. The Power Authority directed Steuben co-op to restore service to the customer terminated without proper notice, and a court case brought by the customer was settled.