FCC Finds Wireless Customers Suffer from Bill Shock; Early Termination Fees Are Still an Issue

On May 26, 2010, the FCC released the findings of a survey which indicates that 30 million Americans - or one in six mobile users - have experienced "bill shock," its term for a sudden increase in their monthly bill that is not caused by a change in service plan. The survey also showed that nearly half of cell phone users who have plans with early termination fees ("ETFs") - and almost two-thirds of residential broadband users with ETFs - don't know the amount of the fees they're accountable for if they switch providers or terminate service before the end of the contract. To conduct this survey, the FCC interviewed over 3000 adults between April 19th and May 2nd.

Of the 30 million "bill shocked" wireless customers, 84% said their mobile carrier did not contact them when they were about to exceed their allowed minutes, text messages, or data downloads and 88% said their carrier did not contact them after their bill suddenly increased. Also, more than a third of the people who experienced bill shock said their bills jumped by at least $50, and 23% said the increase was $100 or more.

The survey also asked consumers about ETFs for wireless phone and broadband service. Of the respondents with personal cell phones (those not paid for by an employer), 54% reported that they would have to pay an ETF should they terminate their contracts before the expiration date, and 18% didn't know whether they would have to pay or not. Of those who are subject to an ETF, 43% said it was $150 or more, but 47% did not know how much it was. One reason the FCC found for the confusion is the billing practices of the service providers: Only 36% of cell phone customers who are familiar with their bills said that they include "very clear" information on ETFs. For residential broadband ETFs, only 21% of home broadband users stated that their contracts include an ETF. Of those, fully 64% were unaware what the fee is.

Finally, according to the survey, 43% of customers indicated that ETFs are one factor that keep them from switching carriers even when their service is not ideal, almost exactly the same number who said they would be deterred from switching by the cost of setting up a new service or by paying a deposit on a new service.

To combat the consumer abuse found in the survey, the FCC unveiled a "Tip Sheet" which offers sage advice, such as "Ask how much the early termination fee will be and how it is prorated" and "If you use your phone sparingly, consider avoiding the whole ETF issue by buying a pre-paid phone."

It does not surprise PULP that the FCC had placed the burden of consumer protections on the consumer. While awareness is essential, basic protections such as the notice of fees, should clearly reside with the provider. Remember that in December there was a scathing report out of the Government Accountability Office, and while the FCC processes tens of thousands of wireless customer complaints every year, it does not actually decide them when the wireless company does not agree with the consumer.

On top of this, the wireless industry has developed its own voluntary (and thus unenforceable) Consumer Code, which apparently hasn't worked well to protect about 63% of consumers who told the FCC that their bills were not "very clear." Believe it or not, Code Number One is actually "Disclose Rates and Terms of Service to Consumers:"

For each rate plan offered to new consumers, wireless carriers will make available to consumers in collateral or other disclosures at point of sale and on their web sites, at least the following information, as applicable: (a) the calling area for the plan; (b) the monthly access fee or base charge; (c) the number of airtime minutes included in the plan; (d) any nights and weekend minutes included in the plan or other differing charges for different time periods and the time periods when nights and weekend minutes or other charges apply; (e) the charges for excess or additional minutes; (f) per-minute long distance charges or whether long distance is included in other rates; (g) per-minute roaming or off-network charges; (h) whether any additional taxes, fees or surcharges apply; (i) the amount or range of any such fees or surcharges that are collected and retained by the carrier; (j) whether a fixed-term contract is required and its duration; (k) any activation or initiation fee; and (l) any early termination fee that applies and the trial period during which no early termination fee will apply.

Further, while the New York State Public Service Commission ("PSC") regulate terms and conditions of wireless services in the state upon completing a hearing determining that such a move is in the public interest - which would include establishing consumer protections for wireless users - it has not taken leadership on wireless consumer protection. This, despite the fact that the United States Centers for Disease Control and Prevention released a report earlier this month on the number of Americans who have "cut the cord" and are using wireless telephone service only. According to the report, 24.5% had only wireless telephones during the last half of 2009, a 1.8% increase since the first half of 2009.

More and more Americans are relying on their wireless phones as their primary means of communication. Should they suffer billing, notification, or termination issues, there is nowhere to turn. The FCC will not decide a complaint. The PSC claims it can not take a complaint (because it has not exercised its discretionary power to regulate terms and conditions of wireless service). And the industry's own weak Consumer Code is not even followed by the industry which wrote it.

The PSC seems to be waiting for the federal government to act and preempt the states. That may not happen or it may mean a very weak set of protections. New York should take leadership now to establish reasonable and enforceable universal service, affordability, consumer protection, and service quality requirements for all telecommunications providers operating in the state, including traditional landline telephone service, cable telephony, and wireless.

Lou Manuta

HUD Directs Roll-Back of Submetering at Yonkers Riverview II

Background
Over the past year we have occasionally discussed some of the efforts of the Related Company, manager of the Yonkers Riverview II apartment complex, to convert to landlord submetering of electricity with the support of New York state agencies, the PSC, DHCR and NYSERDA, and the adverse impact upon tenants. See
April 9, 2009:
Yonkers Tenants Ask PSC to Halt Submetering at Riverview Towers,
May 6, 2009:
Submetered Yonkers Tenants Show How PSC Order Allowed Landlord to Shift Electric Bills to Low Income Tenants,
August 14, 2009:
Yonkers Tenants Win Reprieve from Eviction While Fighting Landlord's Electric Bills,
October 14, 2009:
Yonkers Riverview II Tenants Again Ask PSC to Halt Submetering,
November 03, 2009:
Riverview II Tenants Rebut Owner's Opposition to Request to Stay Submetering,
March 12, 2010:
PSC Greenlights Eviction of Tenants for Nonpayment of Electric Bills,
March 22, 2010:
Yonkers Riverview II Tenants Seek Rehearing of PSC Order Continuing Submetering of Electric Heat
May 11, 2010:
Yonkers Riverview II Files Revised Procedures to Evict Tenants for Alleged Nonpayment of Bills for Submetered Electric Service

Noncompliance with HUD Submetering Conversion Regulations
The owner of the premises and the tenants receive federal subsidies from HUD intended to support decent housing that is affordable to low income households. Consequently, the premises are subject to HUD regulations.

The HUD regulations that apply to submetering require notice and tenant participation in the conversion process, and the development of equitable utility allowances or rent reductions that will not disadvantage an energy conservative household. Owners are required to disclose to tenants their applications to HUD for submetering and to include an estimate of future electricity costs in relation to proposed utility allowances.

In contrast, the PSC allowed submetering without notice to the tenants of the proceeding prior to issuance of the order, without assessment of the impact on tenants, including the cost of electric heat in a poorly insulated building, and without disclosing the magnitude of the cost shift to ytenants. Refusing the tenants' request for a stay, the PSC first shunted their petition to its Office of Consumer Services to be handled as an ordinary complaint, and later, after a second petition was filed, still allowed submetering to go forward if a bare majority of tenants could cover the electric costs with utility allowances and public aid through HEAP grants.

In a recent filing, Related claimed that in the past year 54 percent of the tenants could have covered the new electric charges. Even if that were the case, it occurred during a year of milder than normal weather and lower electricity costs, and left 46% facing additional burdens. The PSC greenlighted the owner's use of eviction to enforce claims for unpaid electric bills.

In a February 16, 2010 letter, HUD confirmed its determination that the owner had not complied with the applicable federal regulations relating to submetering. HUD said that

Riverview II must cease charging for electricity and comply anew with all the tenant notification and submetering conversion regulations.

Riverview must comply anew with all of the tenant notice and comments [procedure] described herein prior to charging for submetered utilities.

On March 17, 2010, Riverview II protested the HUD decision disapproving the implementation of submetering without compliance with the agency rules, and asked HUD to waive its regulatory requirements.

On April 7, 2010, the tenants submitted to HUD their papers in opposition to the owner's request for a waiver.

On May 7, 2010, Riverview II filed materials with the PSC indicating its plan to evict tenants who do not pay electric bills. The filing includes a sample notice regarding non payment of electric service charges which states:

Please remit $XX.XX by MM!DD/YY [15 days later] or we will commence summary proceedings in accordance with New York law to enforce our rights and seek a warrant of eviction.

See Yonkers Riverview II Files Revised Procedures to Evict Tenants for Alleged Nonpayment of Bills for Submetered Electric Service.

On May 13, 2010 the New York PSC denied the petition of the Riverview II Tenants' Association for rehearing. That petition had pointed out, in detail, the denial of due process and lack of HUD approval of submetering in accordance with federal regulations. For example, the petition identified a pattern and practice of allowing submetering which affects tenant property interests without providing timely and adequate notice to tenants of the pendency of the proceedings and an opportunity to participate in the proceeding prior to issuance of submetering orders.

In response the owner argued it did not have to notify tenants when it filed the application to submeter that a case was pending to allow the owner to submeter their apartments.

The Commission denied the tenants request for rehearing along with many other items on its consent agenda on May 13 with a voice vote and no discussion. The written order has not been released.

In a May 21, 2010 letter, HUD confirmed that the submetering was illegally implemented and denied the owner's request for waiver of HUD requirements.

HUD directed a roll-back of submetering at the Yonkers Riverview II project due to the failure of the owner to comply with federal regulations which govern a conversion from owner-paid to tenant-paid utility service. HUD stated:

Based on HUD's review, it has been determined that the Department will not approve the waiver [requested by Riverview II] . Please be advised that the owner has been directed to comply with the tenant [participation] and notice requirements prior to charging for sub-metered utilities.

HUD also stated that the approval by the PSC was not sufficient to satisfy the federal requirements:

While HUD recognizes that the owner must obtain any necessary Public Service Commission approvals, HUD would not consider those approvals as meeting the required notice and other requirements set out in HUD's regulations.

To remedy the illegal submetering, at a minimum it will be necessary for all charges for electric service to be reversed and refunded, and for the PSC to vacate its orders allowing submetering at Riverview II.

If the PSC submetering orders for Riverview II are not vacated, or if full refunds to tenants of all charges made under color of the PSC orders are not made forthwith, tenants may seek damages and injunctive relief in federal court due to the violation of the tenants' clearly established constitutional rights to due process of law and the violation of HUD regulations regarding conversion to submetering.

Anne Mead, First PSC Chairwoman and Former PULP Board Member, Dies at 86

Anne Mead died last week. She was "a trailblazing Democratic lawyer who served as Suffolk's first deputy county executive, the county's first woman judge and later the first woman to chair the Public Service Commission." She was highly respected, a champion of consumer rights, and served as a member of the Board of Directors of PULP following her service on the Commission.

Maine PUC Staff Calls for Regulation of VoIP

In an Examiners’ Report released on May 18th, the Maine Public Utilities Commission (“MPUC”) Staff found that the Voice over Internet Protocol (“VoIP”) services provided by Time Warner Cable and Comcast constitute “telephone services” under Maine law and are subject to the MPUC’s regulations. The Staff also found that its conclusion is not preempted by federal law. While the issue is now set for final decision by the full Commission in Maine, the positions taken in the Examiners’ Report and the analysis provided are very illuminating for the marketplace changes taking place in New York State.

As we’ve reported here and here, the regulated local exchange carriers across our state have lost about half of their access lines in the past 10 years, with most of them migrating from Verizon to the unregulated VoIP services offered by the cable companies. As in Maine, these providers are not subject to the New York State Public Service Commission (“PSC”) protection or service quality requirements and do not pay regulatory assessments to the PSC, creating a disjointed and, yes, broken regulatory environment in our state.

As in New York, the cable companies offering VoIP services in Maine obtain wholesale services from certificated (that is, regulated) providers. These companies execute interconnection agreements with other providers, receive telephone numbering resources for the VoIP operations, and permit telephone number porting but, because they do not provide service to the end user customers and the VoIP provider does, the state’s regulatory requirements are currently inapplicable. The Maine Office of the Public Advocate argued that since the VoIP providers “transmit communications by telephone” they are offering a “telephone service” under the Maine Statutes and because they offer this service within the state for compensation, they are a “telephone utility.” As such, they must receive a certificate of public convenience and necessity from the MPUC. The Maine Statutes also provide that a cable television company that offers services like those of the telephone utilities is subject to the MPUC’s jurisdiction. In addition, it was argued that neither Congress or the FCC have explicitly preempted state regulation of voice services offered by cable companies.

The Examiners’ Report agreed with the Public Advocate and found that VoIP is a telephone service under the Maine Statute:

Indeed, VoIP service is offered to consumers as a substitute for traditional, circuit-switched telephone service, and the experience of placing or receiving a VoIP call is indistinguishable from that of placing or receiving a circuit-switched call: a consumer picks up a telephone handset, dials a telephone number, and waits until the called party joins the call by picking up the ringing telephone handset. Likewise, the experience of conversing with another person on a call placed or received by a party subscribing to VoIP service is indistinguishable from the experience of conversing on a purely circuit-switched call.

The Report also found that Maine is not preempted in regulating these services. While states were specifically preempted by the FCC from regulating so-called “nomadic” VoIP providers such as Vonage, that was because the mobility aspect of the service made it impossible to determine the terminating points of the call, rendering the service to be “interstate only.” With “fixed” VoIP services, like those offered by Time Warner Cable and Comcast, the FCC has not preempted enforcement.

PULP believes every Commissioner at the New York PSC should read this important decision from Maine and begin the process to exercise proper authority over the VoIP service offered by the cable companies. Otherwise, our present course will result in the PSC having necessary regulatory oversight over a significant minority of the state’s telephone providers and customers, leaving the customers whose telephone service is via VoIP without the necessary protections to ensure reliable, affordable,universal service at reasonable rates, terms and conditions.

Lou Manuta

AARP Objects to Proposed Settlement by U.S. of Antitrust Case Against KeySpan for Inflating NYISO Charges

AARP has submitted comments and objections to the proposed settlement of a U.S. Justice Department (DOJ) antitrust lawsuit against KeySpan filed in February 2010. The Complaint alleges KeySpan violated the Sherman Act when it inflated NYISO electricity capacity auction prices from 2006 to 2008. The amount by which prices were inflated was estimated by Con Edison at $159 million in 2006 alone.

A Proposed Final Judgment, filed the same day as the Complaint, would settle the case. See KeySpan Agrees to $12 Million Settlement of DOJ Antitrust Claims it Manipulated NYISO Electric Capacity Market Prices, PULP Network, February 23, 2010.

Under federal law, there must be an opportunity for public review and comment before a court approves settlement of a civil antitrust case brought by DOJ. Under the terms of the proposed settlement:

• KeySpan would admit no wrongdoing,
• Keyspan would pay $12 million to the U.S. Treasury.
• There would be no remedy for customers who were overcharged,
  
• there is no statement of the harm to markets and consumers caused by KeySpan or disclosure of the portion of inflated charges received,
• no explanation for requiring disgorgement of only part of KeySpan's share of the inflated prices paid to all sellers in the NYISO capacity market, and
  
• inadequate factual justification in the record for a settlement.

AARP's comments ask the Justice Department to supply more information and to renegotiate the proposed settlement, and for the Court to disapprove it if it is not modified.

Update:
Matthew L. Wald, Critics Assail U.S. Plan to Settle With KeySpan, N.Y. Times, July 21, 2010.

Memorandum and Order, Feb. 2, 2011. U.S. District Court Judge William H. Pauley III, approved the settlement on the terms agreed to by the Government, accepting the US DOJ recommendation to reject arguments of objectors including AARP, the state utility regulator, and Con Edison.

Matthew L. Wald, KeySpan Price-Fixing Penalty Approved - Some Call It Low, N.Y. Times Feb. 2, 2011. "Although price-fixing by an electricity company may have cost New York customers nearly $300 million, the federal government can close the books on the case by collecting a penalty of just $12 million, a judge ruled on Wednesday."

Michael Giberson, United States v. KeySpan Corporation antitrust Case Settles for Paltry $12 Million, Knowledge Problem, Feb. 2, 2011. "$12 million seems like a too-modest remedy."

GIPA Files for Rehearing of FERC Decision on Cohoes Falls Hydro Project

The Court of Appeals for the Second Circuit held the Federal Energy Regulatory Commission (FERC) failed to consider best use of the federally regulated Cohoes, N.Y. dam and hydropower plant when it granted a new license to the current owner, and so the case was remanded to FERC to review an alternative proposal of the Green Island Power Authority (GIPA). See Second Circuit Requires Consideration of GIPA Plan for Cohoes Falls Hydro Power Station, PULP Network, August 10, 2009. PULP joined with many other organizations in filing an amicus brief with the Circuit Court supporting GIPA's proposals.

The power plant known as the School Street Project in Cohoes was sold by Niagara Mohawk Power Corporation as part of the New York PSC's effort to deregulate power generation, and the power plant has since changed hands several times. GIPA proposed to replace the School Street Project with a Cohoes Falls Project. The Cohoes Falls Project would increase renewable power production, restore public appreciation of the resource, and its Native American heritage, rewater the historic Cohoes Falls to run year round, save fish, and increase community economic development of the area by securing more low cost renewable power and enhancing recreational uses. The plan would improve public access and restore Cohoes Falls to the year-round beauty preserved by James J. Audubon when he painted the Cohoes Ducks:

On April 15, 2010, FERC issued an Order on Remand and Reinstating New License for the School Street Project No. 2539, Erie Boulevard Hydropower, L.P., 131 FERC ¶ 61,036 (2010). In that order, FERC rejected GIPA's Cohoes Falls Project proposal and denied standing to GIPA. In doing so, FERC also rejected GIPA's cost estimates for building a new, relocated dam and an improved power generating plant as being too low.

GIPA has now filed a Request for Rehearing with FERC specifying seventeen errors it believes require reversal. See Larry Rulison, GIPA Appeals Ruling on Cohoes Falls, Albany Times Union, May 18, 2010.

If FERC does not grant rehearing, the Request for Rehearing is a prerequisite for further court review under the Federal Power Act.

OTDA Announces Second Regular HEAP Payments: $100 to Utilities, $200 to Vendors of Delivered Fuel

On May 11, 2010, the New York State Office of Temporary and Disability Assistance (OTDA) announced it will issue additional HEAP benefits to households who previously qualified for Regular HEAP during the 2009-2010 HEAP season. The supplemental payment is being made with federal LIHEAP contingency funds released by President Obama in January.

According to the OTDA press release,

eligible households will be able to receive an additional $200 if they heat their home with a deliverable fuel such as oil, kerosene or propane, or $100 if they heat with natural gas or electricity provided by their utility company.

Most households that have already received a HEAP benefit this winter will not need to apply for the second regular benefit, and will receive a notice later this month informing them that their additional benefit has been sent to their fuel vendor to be credited to their account. Those households to whom OTDA is unable to authorize a payment will receive a notice at that time with instructions on how to apply.

The additional benefits will help many New York households who have been unable to afford their energy costs this year without hardship. According to the OTDA press release, "[t]hrough the end of April, over 1.4 million HEAP benefits have been issued, a 13 percent increase over the same time last year. Last winter, New York issued more than 1.5 million HEAP benefits to low-income households, a record high."

The OTDA Press Release says

The additional assistance is being provided with $45 million in federal Low-Income Home Energy Assistance Program (LIHEAP) contingency funds released to New York earlier this year by President Obama.

The $45 million of federal contingency funds were released on January 20, 2010. OTDA announced the release of additional funds nearly four months later, and only three days before the HEAP program closed to new applications on May 14, 2010. It appears that OTDA did not adopt a new regulation, HEAP Plan amendment, or sub-regulatory policy guidance through its ADM, INF, or GIS systems regarding the use of the additional funds.

There was no opportunity for public participation prior to the May 11 OTDA announcement of the belated allocation of the $45 million in additional federal funds released in January. The HEAP Block Grant Advisory Council (BGAC) has not been convened by OTDA to meet in the past two years. Appointments to the BGAC have not been made to replace former members who retired or who no longer work for HEAP program stakeholders. In his proposed 2010-11 budget, Governor Paterson proposes to eliminate the BGAC, which serves without compensation, and to eliminate HEAP funding for low-income weatherization, which by statute is allocated 15% of the federal HEAP funds for New York State. The legislature has not acted on the proposals.

It is not clear whether the additional payments to utilities and fuel vendors will provide tenants with any extra protection against shutoffs, beyond the direct payment to the vendors. Duties of utilities and other energy vendors upon their receipt of second Regular HEAP payments are not all contained in the State HEAP Plan. In privately negotiated vendor agreements with OTDA, energy services providers make arrangements with OTDA on matters such as continued provision of service in exchange for direct payment of regular or emergency HEAP benefits. A common provision is the assurance of 30 days continued service without shutoff after a HEAP payment is made.

In comments regarding the preparation of next year's HEAP Plan, PULP has pointed out the absence of adequate public participation in how the money is used, and the omission from the State HEAP Plan the duties of the utilities and other vendors which can significantly affect household eligibility and their protection. See PULP Expresses Concerns with State HEAP Program, Proposes Improvements,Transparency and Public Scrutiny of Utility Vendor Agreements, PULP Network, February 19, 2010.

OTDA Proposes Rule Extending Utility Assistance Repayment Agreements from One to Two Years

The New York State Office of Temporary and Disability Assistance (OTDA) is proposing to amend its regulations to implement last year's statutory amendment to the emergency utility assistance program under social services law 131-s. Persons with incomes over the threshold for ongoing public assistance are required to sign a repayment agreement as a condition of assistance. The proposed regulation will extend the repayment period from one to two years. Although the regulatory change is being made now, OTDA previously announced the change in the repayment period in a directive to local social services districts, 09-ADM-17. See

• OTDA Implements Amendment Easing Repayment Terms for Emergency Utility Assistance, PULP Network, October 22, 2009;
• OTDA Must Relax Its Administrative Restriction on Utility Assistance Loans for Persons with Incomes Above the Public Assistance Level, PULP Network, July 29, 2008;
• OTDA Eases, but Continues, its Administrative Restriction on Assistance to Utility Customers with Incomes Above the Public Assistance Level, PULP Network, October 5, 2008.
  

In its justification for the new regulation, apart from taking action to comply with the statute, OTDA acknowledges the hardships when 131-s assistance is denied:

By extending the time period for low-income households to repay their utility arrears assistance from one year to two years, these amendments would reduce the households' monthly repayment amounts, making the payments more affordable. Lower monthly payments would help low-income families remain current on their utility repayment agreements during these difficult economic times and better enable them to meet their other monthly financial obligations. By improving the ability of low-income households to comply with the terms of the repayment agreements, these amendments also would lessen the need for the local districts to utilize costly temporary housing options.

Temporary housing options are utilized when applicants for SSL § 131-s have been noncompliant with past repayment agreements. If there is noncompliance with prior repayment agreements, local districts are prohibited from making additional payments under SSL § 131-s and 18 NYCRR 352.5(e). Thus these amendments would help local districts reduce the need for temporary housing assistance and would enable more persons to remain in their homes with the utility services they need.

Actually, one could look all day in the statute, Section 131-2 of the Social Services Law, but one will not find any statutory language which actually mandates that "[i]f there is noncompliance with prior repayment agreements, local districts are prohibited from making additional payments under SSL § 131-s."

This harsh requirement is the invention of OTDA, which added the prohibition of aid to those indebted for prior assistance in its regulation, going beyond the language of the statute. Section 131-s has always limited assistance to those unable to pay to avert a shutoff. The fact that a person has income above the meager public assistance level does not mean the person can afford to pay prior utility assistance or that the person has funds now to meet the current need.

While a stretchout of the payments from one year to two years under the recent amendment will undoubtedly help some households, the above discussion of homelessness caused by a lack of utility service highlights the hardship and problems caused when aid to avert a current utility emergency is refused under OTDA's harsh rule due to the applicant's failure to repay assistance received in the past, without regard to the current availability of income and resources needed to continue service. Courts have recognized that the lack of utility service contributes to "a threat of imminent danger" to children In re Lillian H., 254 AD2d 237, 679 NYS2d 142 [1st Dept., 1998]). No utilities, heat or running water resulted in a finding of "imminent danger"Matter of Tad M., 123 Misc 2d 1071, 475 NYS2d 996 (Fam. Ct., Richmond Co., 1984. See Candle Fires: A Symptom of "Rolling Blackouts" Affecting Low Income Households, PULP Network, September 5, 2006; No Electricity: Middletown Residents in Critical Condition from Lantern Fire, PULP Network, October 19, 2008.

The 131-s program has a heightened importance now that the 2009-10 HEAP season has ended. The affordability problem is particularly acute during the summer and fall, when assistance under the federally funded seasonal HEAP program is unavailable, and utilities ramp up their terminations of service for collection purposes. See Powerless: Low-Income Households Facing Termination of Service with No Remedies, PULP Network, PULP Network, July 17, 2009; As Poverty Continues its Tight Grip on New York State, Utilities Increase Interruptions of Electric and Natural Gas Service to Collect Bills, PULP Network, April 01, 2010.

FCC: Low Income New Yorkers Still Struggling to Afford Phone Service

This week, the FCC released its latest "Telephone Penetration By Income By State" report . The report is based on March 2009 Census Bureau survey data from its Current Population Survey which asks the question:

"Does this house, apartment, or mobile home have telephone service from which you can both make and receive calls? Please include cell phones, regular phones, and any other type of telephone."

The FCC Report found:

• In March 2009, penetration among low income households (under $10,000 annual income in 1984 dollars) nationwide was 90.4%. This contrasts with an overall nationwide penetration rate of 95.6% in March 2009.
• Since 1985, when the FCC first established Lifeline to help low income households afford the monthly cost of telephone service, penetration rates among low income households have grown from 80.0% to 90.4%.
• States that have provided a high level of Lifeline support for telephone service for low income consumers experienced an average growth in penetration of 4.6% for low income households from March 1997 to March 2009. In contrast, states that provided a low level of Lifeline support experienced an average growth of 2.9% in telephone penetration rates for low income households between March 1997 and March 2009.
• Among all states, penetration rates among low income households ranged from a high of 97.0% to a low of 81.1% in March 2009.
  

The Report shows that the percentage of low income households with telephone service in New York State rose from 84.6% in March 1984 to 90.1% in March 2009. In March 2000, the penetration rate for low income New Yorkers was 92.0%. In contrast, the penetration rate for higher income New York households (earning more than $40,000/year in 1984 dollars) was much higher: 98.4% in March 1984 and 97.3% in March 2009.

The FCC's survey takes into consideration the presence of wireless Lifeline providers, including TracFone's SafeLink service and Virgin Mobile's Assurance Wireless. Even when these are included, the percentage of low income New Yorkers with phone service actually went down in the past decade by nearly two percentage points. Keep in mind that TracFone is now the largest Lifeline provider in New York State, with about 365,986 customers , and the percentage of low income households with a phone has still declined. The 2% shrinkage in New York's telephone penetration means that approximately 160,000 more households lack any phone service.

A Universal Service proceeding has been launched by the New York State Public Service Commission ("PSC"), but it is examining high cost support in rural areas first and may not get to low income issues for a year or more. What more can be done in the meantime to ensure all eligible New Yorkers can benefit from this worthwhile program and increase the state's telephone penetration rate?

Lou Manuta

Nearly One-Quarter of All Americans Have Cut the Cord; PSC Losing Clout

The United States Centers for Disease Control and Prevention released on May 12, 2010 its twice a year report on the number of Americans who "cut the cord" and are using wireless telephone service only. According to the report, 24.5% had only wireless telephones during the last half of 2009, a 1.8% increase since the first half of 2009. A state-by-state breakdown was not provided.

The New York State Public Service Commission (“PSC”) www.dps.state.ny.us currently only exercises jurisdiction over traditional, wired telephone service and can only regulate wireless service after it conducts a hearing to determine that such a step is necessary. As a result, the PSC’s consumer protections and service quality requirements do not apply to one-quarter of the state’s telephone users using wireless phones only (these protections do not apply to Voice over Internet Protocol or cable telephony customers either, who make up about 30% of the state’s telecommunications market).

How can the PSC meet its proclaimed mission to “ensure safe, secure, and reliable access to . . . telecommunications . . . services for New York State’s residential and business consumers, at just and reasonable rates” when it no longer provides oversight of the terms and conditions of phone service to half of the marketplace?

Lou Manuta

New York's HEAP Household Energy Assistance Programs Closing May 14

New York OTDA has announced that the Home Energy Assistance Program (HEAP) will close for both Regular and Emergency HEAP assistance benefits on Friday, May 14, 2010. No new applications will be accepted after that date.

When the HEAP program is open, OTDA instructs local departments of social services to explore HEAP eligibility first, before considering applicants' eligibility for state/local funded programs, such as New York's emergency utility payment program under Section 131-s of the Social Services Law. This state-and-local program will become very important for growing numbers of low-income households facing service termination. See As Poverty Continues its Tight Grip on New York State, Utilities Increase Interruptions of Electric and Natural Gas Service to Collect Bills, PULP Network, April 1, 2010.

OTDA will issue a draft HEAP plan for 2010 - 2011 at some point outlining its intentions for the program in the next HEAP season beginning November 1, 2010. The state plan for using federal HEAP funds in 2010-2011 will eventually be submitted by the Governor to HHS for approval, after public involvement. A summary of public comments in the HEAP needs assessment phase of plan development are posted at the OTDA website. PULP filed comments and recommendations for improvement of the HEAP program in February, 2010. See PULP Expresses Concerns with State HEAP Program, Proposes Improvements, Transparency and Public Scrutiny of Utility Vendor Agreements, PULP Network, February 19, 2010.

The HEAP emergency heating equipment repair and replacement program not affected by the May 14 cessation of the Regular and Emergency grants and will continue through Thursday, September 30, 2010.

Yonkers Riverview II Files Revised Procedures to Evict Tenants for Alleged Nonpayment of Bills for Submetered Electric Service

The Related Companies, owner of Yonkers Riverview II, filed revised procedures and model notices for eviction of tenants who have not paid charges for electric service. The May 7, 2010 filing by the landlord includes a sample notice regarding non payment of electric service charges which states:

Please remit $XX.XX by MM!DD/YY [15 days later] or we will commence summary proceedings in accordance with New York law to enforce our rights and seek a warrant of eviction.

A February 18, 2010 PSC Order indicated that the owner attempted to evict 80 tenants alleging nonpayment of charges for electric service, yet the PSC allowed submetering to continue, denying a petition of the tenants. Some lower court decisions indicate that landlords cannot evict tenants for non payment of bills for submetered electric service.

The tenants' petition for rehearing is pending. It points out that the PSC order, which allows owners to evict for non payment of electric service if they first give HEFPA notices, owners may circumvent the HEFPA procedures and simply allocate partial tenant payments to cover the electric service first, and then seek to evict for nonpayment of the balance of rent due.

The owner's response to the tenants' petition indicates that the utility allowances established after submetering began do not cover the costs of electric service for 46% of the tenants. When electric charges for electric heat are not offset by utility allowances, additional economic pressure is placed on tenants, particularly those with low incomes. As a result, submetering may contribute to hardship faced by low income households and to their displacement from previously affordable housing.

Oceangate Tenants File Comments on Submetering

The North Bay Tenants Association at the Oceangate apartment complex in Brooklyn filed a petition on January 28, 2010 asking the PSC to revoke its prior approval of landlord submetering of electrically heated apartments. As a result, implementation of submetering has been put on hold. The PSC issued a notice inviting public comment under the State Administrative Procedure Act. Last week, the North Bay Tenants Association filed a summary of comments of 212 tenants pointing out flaws in the submetering regime that was about to be implemented.

The tenants stated:

• The apartments are heated by baseboard electric heat. Almost 60% of the commenting households reported that their baseboard electric heaters lacked programmable thermostats.
  

• Eleven percent (11%) reported that their windows do not open and close properly and almost

• 17% reported that their apartment doors do not open and close properly. Forty-eight percent

• 48% said their windows were drafty; 43% reported drafts around their apartment doors, and

• 73% said there is no weather stripping on their apartment doors, leading to hallways that 50% said were unheated.
  
• About 53% of the 212 commenting households wrote in additional comments and of these, 19% reported malfunctioning heaters and thermostats and inadequate heat in winter.
  

Comments regarding the baseboard electric heaters included the following:

• "The new heaters are not child proof and they need to fix that."

• "The biggest problem is there is no manual option to adjust heat. It was very cold all the time."
• "The thermostate [sic] doesn't work."

• "'We don't have no control of the thermostat."

• "Heater does not work in winter time."

• My apartment is always cold the heat never comes up. The meter [sic] by the kitchen stays showing that there is heat because it is near the kitchen when I cook -once again I don't think its fair to pay for something (heat) that I do not receive.
  
• In the winter we have to sleep with hats and sweaters or hoodies because its constantly cold. I don't think it is fair to have to pay for something I don't receive regularly."
• "I don't have control over my thermostat and my heat."
• "I feel electricity should be included in the rent because we have no control of thermostat."
• "There is a problem with the heaters, before they never worked after the landlord changed new heaters I cannot regulate my own temperature since its also not working when it comes to regulating temperatures."
• "I have a 1 year old son, it is cold in my whole house. We have to walk around and sleep in our regular clothing instead of night clothing. I do not feel that it is fair to me or my son I said something to landlord and they said there is nothing they can do the heat is controlled by the thermostat."
• "In order to heat my apartment I have to put ice pack on the heater to make heat go on and use electric heaters."
• "Apartment very cold we have to put ice pack or ice on the meters for the apartment to be warm."
• "In Dec., Jan., Feb. 2010 my baseboard heaters in LR and BR didn't work. It was very cold in the apartment."
• "I haven't been getting heat since the conversion to meters. Using ice does not activate system. Neither does turning thermostat."
• "Through the earlier part of Fall and into Winter my apt. was extremely cold resulting in me cutting on oven and boiling water. Eventually I ended up putting frozen water bottles on the thermostat to generate heat this was called into the management . . . ."
• "Did not work properly during the winter too cold."
• "I don't know what switch they clicked but my heat comes on even when it's not cold outside or in my house. Even though 50% of the winter we had no heat."
• There is not enough heat to warm up the living room - draft comes in from my front door and AC.

The owner of Oceangate has been granted extensions of time by the PSC to answer the tenants' emergency petition. New York State DHCR and the PSC have not yet responded to FOIL requests relating to their prior actions approving submetering. The tenants believe there was a lack of timely and adequate notice of the agency actions and that the submetering was approved without full compliance with HUD regulations applicable to submetering conversions, which require tenant participation and establishment of utility allowances commensurate with the usage of energy conservative tenants.

State Budget Not in Sight

Agreement on a state budget for April 1, 2010 - March 31, 2011 has not been reached. See David King, A Month After the Deadline, State Budget Nowhere in Sight, Gotham Gazette May 6, 2010.

As a result, many not for profit organizations are rapidly exhausting their resources as they struggle to provide services in anticipation of renewed appropriations and new contracts. See
State Budget Impasse Threatens PULP's Future, PULP Network, April 09, 2010.

The FCC Stops TracFone from Backing Away from State 911 Requirements

Although TracFone willingly claims and accepts millions every month in universal service support, it has attempted to back away from state requirements to provide emergency 911 service. Back in 2008, the FCC granted TracFone’s petition to be designated as a Lifeline-only Eligible Telecommunications Carrier (“ETC”) in 12 states, including New York. One of the requirements placed on TracFone so that it could receive federal Universal Service Fund (“USF”) low income support was the company’s commitment to be in full compliance with state 911 and E-911 requirements. Not satisfied with this “onerous” mandate, the company petitioned the FCC last summer to relieve it of this obligation. In a May 3rd Order, the FCC denied TracFone’s request.

The FCC held that the 911/E911 requirement “was relevant to the issue of whether designation of TracFone as an ETC was in the public interest” and “[g]iven the circumstances presented by TracFone’s petitions for limited ETC designation for Lifeline support, the Commission imposed the 911/E911 certification condition as being necessary to counterbalance the potential disadvantages of designating TracFone a limited ETC.” It also found that “access to 911 and E911 was especially critical for TracFone’s Lifeline customers because that service may be the customer’s only means of accessing emergency services.”

The Commission went on to note that “the certification condition enforces the principle that Lifeline funds should not be disbursed to any carrier that is not providing access to emergency services nor complying with state-level obligations regarding 911 funding; that principle should be especially potent here, where extending emergency services to the most needy was a motivating factor in the Commission’s initial grant of forbearance to TracFone.” Should TracFone not comply with state 911 and E-911 requirements, the FCC stated that it will consider whether TracFone’s certification should continue to be effective.

At the same time that TracFone was attempting to abdicate one of its primary responsibilities as a Lifeline ETC, it had no qualms in accepting millions of dollars every month in USF low income support. According to the Universal Service Administrative (USAC), for the last quarter of 2009, TracFone received over $10.6 million in support for New York alone. The company is projected to receive over $12 million in the second quarter of 2010. In fact, for all of its states, TracFone received over $156 million of USF support in the fourth quarter of 2009. These figures equate to more than 26 million Lifeline customers nationwide. While it is commendable that they have been able to provide Lifeline service to so many low income users, the least they should do is permit these customers to access emergency services. They are certainly reaping sufficient financial rewards to do so.

Lou Manuta

FCC Orders Review of Lifeline Programs; NY May Need to Improve

In an Order released on May 4th, 2010 the FCC directed the Federal-State Joint Board on Universal Service to review the federal eligibility, verification, and outreach rules for the Lifeline and Link-Up phone service affordability programs. Specifically, the Joint Board was asked to recommend any changes to the Lifeline and Link-Up programs that may be necessary, “given significant technological and marketplace changes since the current rules were adopted.” They were asked to consider:

(1) The combination of federal and state rules that govern which customers are eligible to receive discounts through the Lifeline and Link-Up programs. Currently there are different criteria in each state, depending on whether the state has implemented its own Lifeline program. The FCC questioned whether there should be automatic enrollment in each state and whether the existing income eligibility criteria (135% of the federal poverty guidelines) continues to make sense. Additionally, the Joint Board was asked to examine the verification process currently employed by the providers to discern whether improvements are needed or whether there should be uniformity among the states.

(2) Best practices among states for effective and efficient verification of customer eligibility, both at initial customer sign-up and periodically thereafter. The FCC is seeking information on best practices at the state level, specifically related to consumer eligibility. The Joint Board was asked whether any of these best practices should be applicable at the federal level. In addition, the Joint Board was asked to report on whether any states support broadband services through their low income programs. Further, the Joint Board was asked to investigate whether there have been issues with applicants making duplicate claims for Lifeline support (that is, receiving Lifeline simultaneously from a landline provider and a wireless provider).

(3) The appropriateness of various outreach and enrollment programs. Currently, there are no specific national guidelines for the types of outreach required by the Lifeline providers to promote customer awareness of the service. The Joint Board was directed to examine whether there should be specific, enforceable outreach requirements for all Lifeline providers.

(4) The potential expansion of the low income program to include broadband, as recommended in the National Broadband Plan. Finally, the Joint Board was requested to examine how its responses would be impacted by the expansion of the Lifeline program to broadband.

The Joint Board’s Recommended Decision on these issues is due within six months.

PULP welcomes this examination by the FCC. As we have reported on numerous occasions, the number of Lifeline customers in New York State served by local exchange carriers is less than half its peak in 1996 and too many eligible New Yorkers are not even familiar with Lifeline’s existence.

See Lifeline Awareness Week Begins Monday – Is There Anything for New York to Celebrate?, and Low-Income Telephone Lifeline Assistance Reaches Fewer than 300,000 New Yorkers, Lowest in 20 Years.

Meanwhile, TracFone wireless has single-handedly matched the Lifeline customer total in New York served by the regulated carriers -- all in about a year of offering the service -- but has fought to be removed from some of the Eligible Telecommunications Carrier obligations it agreed to back in 2008.

However, the state Office of Temporary and Disability Assistance reports that there are over 1.3 million households in New York receiving Food Stamps , meaning that merely half of the Lifeline eligible households are enrolled in the service. Will the Joint Board’s recommendations spur the state to do more than maintain the status quo? PULP remains cautiously optimistic.

In addition, PULP has advocated for the expansion of the Lifeline program to include broadband access. This is one of the key elements of our pending application for a broadband stimulus grant, arguing that unless accessing the service is affordable for all, the millions spent on deployment may go to waste. Expanding Lifeline without eliminating the current support for voice service while not overburdening the fund will be a difficult balance to strike, but one essential to achieve.

Lou Manuta

Citing Delays, PULP Asks for Review of PSC Complaint Handling Process

PULP has asked for a review of the PSC process for deciding utility customer complaints, citing delays in some cases of more than a decade. The PSC consumer complaint process provides for an initial decision by the PSC's Office of Consumer Services, an informal review or hearing, and a final decision by the Commission, usually through a delegated employee. After a final decision is issued, judicial review is available under CPLR Article 78, though the overwhelming number of utility customer complaints begin and end at the PSC.

In a letter sent this week to PSC Chairman Garry A. Brown, PULP pointed out that neither residential nor nonresidential customers are receiving timely action on meritorious complaints. PULP pointed to specific residential and nonresidential customer complaints that languish, undecided, and an assertion of the PSC that resource limitations and priorities in allocation of agency resources mean that complaints cannot be promptly decided.

PULP cited as an example a case involving a dispute over charges due to an allegedly defective Con Edison meter for service to a condominium building. The customer contended that the demand meter implausibly recorded more usage than the total load of the building, even assuming every appliance was on at the same time. Although the case involves no novel issues, it has been pending for more than a decade. PULP observed:

There is a growing perception that when a customer lodges a meritorious complaint and the provider of utility service balks, the response of the OCS and the Commission is a retreat into stasis: rather than decide a matter of significance adverse to the utility, all too often work on the case halts and no decision is issued.

Justice delayed is justice denied

In some situations, the New York PSC has explicitly refused to decide whether providers of utility service acted contrary to law. PULP stated:

There is something terribly amiss with Commission complaint handling procedures when top supervisory staff of the Informal Hearing Unit summarily refuse to perform their duties mandated under Public Service Law and Commission regulations and declare they will not decide if a provider of utility service acted unlawfully.

In effect, the absence of timely PSC decisions allows utility actions challenged by customers to go unreviewed for years.

Administrative agencies under the sway of deregulation fads may subtly morph their statutory complaint adjudication systems into softer mediation services. In this fashion, practical oversight of utilities through correction in the complaint process is diminished by avoiding, abdicating, or minimizing the statutory role of an administrative decider of disputes between utilities and customers. For example, the FCC simply gives up and closes the case when a customer complaint is rejected by a wireless provider, rather than decide the issues raised by the complaint. See GAO Report: Nowhere to Turn -- FCC Not Protecting Wireless Consumers, PULP Network, Dec. 14, 2009.

PULP stated that as a result of the practical unavailability of any timely check on the utilities through the New York PSC customer complaint process, "[t]he Commission, through its failure to timely review and decide the validity of disputed utility actions has created, in effect, a de facto customer service regime of total deregulation."

The letter asks for a full review of the PSC complaint process, to identify causes and remedies for the delays.

AARP Urges State Senate to Save PULP

Governor Paterson omitted PULP from his budget proposal, again making it essential for the state legislature to add appropriations that would ensure PULP's survival. See State Budget Impasse Threatens PULP's Future, April 9, 2010.

This week, AARP New York State Director Lois Aronstein wrote to State Senate Conference Leader John Sampson urging the State Senate to ensure adequate funding for the Public Utility Law Project (PULP), as a "partner we rely on to better serve our millions of members." The April 20, 2010 letter states:

We are greatly distressed that the on-going state budget process in the Senate has not yet included any funding to support PULP for the fiscal year which began on April 1st. The Legislature has included PULP funding every year since 1981 and must continue to do so to maintain the vital services offered by PULP.

If the State does not fund PULP at a sustainable level, the organization will be forced to close its doors. As a result, New Yorkers will lose an advocate who represented their interests in many important proceedings on behalf of seniors and low-income consumers. Without affordable utility services, we expect to see many low-income families and seniors go without light and heat and the ability to contact emergency services, any of which may lead to homelessness and other hardships.

I strongly urge you to include adequate funding resources for PULP in the state budget currently under negotiation. It is essential that PULP is able to continue to assist the neediest New Yorkers and remain a committed partner with AARP on these essential and fundamental issues.

Short term funding extenders state agencies requested by the Governor are being passed by the Legislature, but these do not affect funding for PULP and many other state-funded nonprofit organizations.

At week's end, there was still no indication when or if the budget impasse will be resolved.

This year's legislative session is currently scheduled to end on June 21, 2010.

PSC Tells FCC to Require VoIP Providers to Pay to Access Local Networks

In brief comments submitted to the FCC on April 2, 2010, the New York State Public Service Commission (“PSC”) stated its opposition to positions taken by Global NAPS defending its refusal to pay access charges to carriers that terminate its traffic. Global NAPS maintained that because it is a Voice over Internet Protocol (“VoIP”) provider, like the voice services offered by the cable companies, federal law has preempted states from applying access charges to it.

The PSC correctly (in PULP’s view) argued that VoIP is a telecommunications service subject to access charges: “every carrier is obligated to pay a terminating carrier for the use of its network.” It went on to note that granting Global NAPS' request would “undermine[] our ability to develop fair and balanced telecommunications policies” when competing sets of rules apply to competing providers. The PSC cited to an ongoing state proceeding involving Global NAPS where it refuses to pay a small competitive local exchange carrier to terminate traffic from its customers. The local carrier has now asked the PSC for permission to block incoming traffic from Global NAPS because the company continues to not pay. As a result, the PSC is seeking a declaration from the FCC that it is imperative to “treat[] traffic that is functionally equivalent to similar pricing rules.”

Now the PSC needs to apply this philosophy to more than just access charges. Why should VoIP providers, including the cable television companies which offer voice services which have captured nearly half of the local exchange market in the state, be exempt from the PSC’s consumer protections, service quality standards, and regulatory assessments – which apply to the incumbent carriers? PULP supports reasonable consumer protections and service quality standards that apply to all providers along with consistent regulatory assessments for all providers. See

• VoIP Phone Providers to Start Collecting E-911 Surcharge;
• PSC Tells FCC to Permit States to Assess VoIP for State Universal Service Funds;
• Staff Report Released after State Senate Hearing on Telecom Taxes; Acknowledges Need for Consumer Protections for Telecom Customers;
• PULP Testifies at State Senate Hearing on Telecom Taxes.
  

On March 31, 2010, the US District Court for the Southern District of New York issued a decision in Manhattan Telecommunications Corp. v. Global NAPS, Inc. that Global NAPS owed a different competitive local exchange carrier in New York for accessing its network to terminate calls and must pay them at the local carrier’s federal access rate. The Court rejected Global NAPS' argument that it is exempt because it is a VoIP provider.

The tide may be beginning to turn.

Lou Manuta

Legislative Allocation of the $187 Million RGGI Revenue from Sale of Greenhouse Gas Allowances

In light of the Governor's failure to make any provision for PULP in his proposed budget, and in light of the current tight budgetary situation facing New York State due to a falloff of revenue during the recession, and due to the late state budget, the future of PULP is in jeopardy. See State Budget Impasse Threatens PULP's Future, PULP Network, April 09, 2010.

A small portion of the newly created $187 million/year stream of funds from the sale of carbon allowances in the "Regional Greenhouse Gas Initiative" or RGGI program is a logical potential source of funding that could be tapped for financial support of PULP. Appropriating a small part of the RGGI funds to support PULP's advocacy for low-income energy and utility customers is not inappropriate, inasmuch as RGGI is adding to the high cost of electricity in New York state and hence adding to the financial burdens of low-income households.

An April 19, 2010 decision of the Public Service Commission discusses how a significant part of the RGGI funds are not yet appropriated, how the use of RGGI funds is currently decided by NYSERDA, and illustrates how the legislature could further direct their use.

Background
The SBC. As a consequence of agreements with utilities to restructure New York's investor-owned electric utilities in the 1990's, the New York State Public Service Commission (PSC) created a "System Benefits Charge" or "SBC." It is a surcharge on electric bills, the proceeds of which are sent by the utilities to NYSERDA to support energy efficiency programs under PSC oversight. The SBC is pnow yielding $175 million/year in revenue.

The EEPS. During the Spitzer/Paterson administrations, a new goal was set to reduce growth of the State’s electricity consumption. To move toward that goal, the PSC began an additional initiative known as the "Energy Efficiency Portfolio Standard" or "EEPS." The EEPS allows utilities to collect additional money from customers, through utility rates, to finance more energy efficiency programs, some of which are administered by NYSERDA and some of which are administered by the utilities. This encourages major investor-owned utilities to enter the energy efficiency line of business, in which they recover all the EEPS program costs from ratepayers, and more. According to a January 2010 PSC press release, EEPS program funding is as follows:

• Consolidated Edison Company of NewYork, Inc., $235.8 million;
  
• National Grid (upstate), $147.7 million;
  
• National Grid (downstate), $39.9 million;
  
• New York State Electric and Gas Corporation, $31.7 million;
  
• Rochester Gas and Electric Corporation, $20.1 million;
  
• Central Hudson Gas & Electric Corporation, $19.6 million;
• Orange and Rockland Utilities Inc., $14.3 million;
  
• Corning Natural Gas Corporation, $0.2million; and
  
• St. Lawrence Gas Company, Inc., $0.08 million.
  

The RGGI
New York joined with nine other Northeast states during the Pataki administration in creating the "Regional Greenhouse Gas Initiative" or RGGI. This was an effort, in the absence of adequate federal programs, to reduce greenhouse gas emissions from electric power plants by means of a cap and trade system. As a result, NYSERDA is now receiving substantial auction revenue from the sale of RGGI allowances to power producers that emit carbon dioxide.

PSC Denial of Multiple Intervenors' Petition
Multiple Intervenors (MI), an association of large industrial, commercial and institutional electricity customers, filed a petition for a declaratory ruling from the PSC, arguing that the new major funding stream from the sale of RGGI carbon dioxide emission allowances justifies reduction of the existing EEPS surcharges, because the RGGI money could supplant them. As summarized by the PSC:

MI proposes that EEPS funding be reduced in proportion to RGGI proceeds to reduce the burden on ratepayers and avoid duplication of funding and programs. Specifically, MI requests that the Commission issue a declaratory ruling to reduce the approved annual EEPS funding from approximately $330 million to approximately $110 million.

In its April 19, 2010 decision, the PSC declared that it sympathized with MI, saying "[w]e share MI’s concerns" about overlapping energy efficiency programs, but denied the MI petition.

NYSERDA, Not the PSC Controls the RGGI funds.
The PSC pointed out that under the RGGI arrangements, the PSC lacks power to redirect the use of the RGGI funds. Thus, even if the PSC wanted to use RGGI money instead of money collected from utility customers for EEPS programs, it could not effectuate that result, because NYSERDA controls the RGGI money:

[B]oth the New York State Department of Environmental Conservation (DEC) and the New York State Energy Research and Development Authority (NYSERDA) have adopted regulations governing the implementation of RGGI.... Each year New York issues a number of tradable allowances: one allowance permits the emission of one ton of CO2 for one year, to cover electric generating units that must obtain allowances equal to their CO2 emissions within a three-year compliance period. These allowances have been sold at auction, in a process managed by NYSERDA and described under DEC and NYSERDA regulations.

The proceeds generated by these auctions are managed from a NYSERDA account and disbursed solely by NYSERDA pursuant to its Operating Plan and regulations.

The 2009 NYSERDA Operating Plan stated its RGGI-funded programs

are designed to create synergies with existing efficiency and clean energy programs and encourage redefinition of program goals in the context of a more comprehensive climate change strategy.

Legislative Action Can Redirect RGGI Funds.
The PSC observed that although the RGGI scheme puts NYSERDA nominally in charge of spending the RGGI auction proceeds, legislative action can also steer the use of RGGI money. The PSC cited examples in the past year where the Legislature exercised its powers to appropriate RGGI funds:

Since the commencement of the RGGI auctions, the resultant proceeds have been tapped or otherwise encumbered for a variety of uses other than those intended by the Operating Plan****

On October 13, 2009, the Green Jobs/Green New York bill was signed into law, directing NYSERDA to establish revolving loan and green jobs training programs to retrofit existing homes, using $112 million of RGGI auction proceeds to leverage private investment****

Finally, on December 4, 2009, the New York State Legislature enacted numerous deficit reduction measures that included the transfer of $90 million in RGGI auction proceeds to the General Fund****

The proceeds from RGGI, and their uses, remain to some extent uncertain, if not speculative. Indeed, in the March 2010 Revised RGGI Operating Plan, NYSERDA revised downward the estimates of program funding available through March 2012, from $525 million to $302 million****

As indicated by the last year’s allocation of RGGI proceeds, those funds are subject to redistribution for a wide range of purposes by the legislative and executive branches, not all related to energy efficiency.

The PSC rejected the effort of MI to reduce the EEPS program charges paid by utility customers, stating:

MI seeks . . . to have the Commission reduce EEPS collections from customers, in anticipation that the same purposes would be achieved using RGGI funds for energy efficiency. However, MI also argues that it should be mandatory that those auction proceeds be used to offset the incremental costs of EEPS to electricity consumers. This relief is unavailable in a declaratory ruling by this Commission, as the operation of RGGI and the allocation and disbursement of RGGI funds are governed by NYSDEC and NYSERDA regulations.

Conclusion
The current NYSERDA Operating Plan for use of RGGI funds was adopted April 27, 2010. It anticipates RGGI revenue of approximately $187 million per year through 2012. The recent PSC decision makes it clear that any change in how RGGI money is used must come from the Legislature.

Budget “Extenders” Won't Solve Non-Profits' Problems Due to Late State Budget

According to today’s Albany Times Union, in the absence of any budget for the 2010 – 2011 New York State fiscal year that began more than two weeks ago, Governor David Paterson is drafting “extenders” of the current year budget. There is also movement in the Legislature to add funding into the extenders to keep state parks open, according to the Times Union article. Stop-gap measures for interim funding of state agencies would keep them functioning, but these are not even a temporary solution for many not for profit organizations that largely depend on state appropriations, like the Public Utility Law Project of New York (PULP).

During late budget periods such as this, many not for profit organizations must adopt harsh austerity measures, live on credit, struggle to continue operations, and take the risk of continuing their services without reimbursement, in anticipation of continued funding. The Times Union reported earlier this week on PULP’s plight. Unfortunately, the situation has not improved in the ensuing days. As PULP reported last week:

if the State does not fund PULP at a sustainable level, New Yorkers will lose the ability of PULP to participate fully in many important proceedings on behalf of low income energy and utility consumers. Without energy and utility service, low income families will go without light and heat and the ability to contact emergency services, any of which may lead to homelessness and other hardships. . . . Since its inception more than 29 years ago, PULP has been instrumental in promoting universal service, consumer protections, and affordability for New York’s residential utility customers, achieving many milestone accomplishments with lasting value.

Although the state legislature has appropriated funds for PULP each year since our founding in 1981, the future is clouded because the Governor again did not include any appropriation for PULP in either his proposed budget in January or in any bill extenders, and the State Senate has yet to take any action to continue funding for PULP. See PULP Network, State Budget Impasse Threatens PULP's Future, April 9, 2010.

Gerald Norlander
Executive Director

State Budget Impasse Threatens PULP's Future

Each year since 1981, the New York Legislature has appropriated funds to support the Public Utility Law Project of New York (PULP). Although small foundation grants and charitable donations occasionally supplement PULP's funding, the reality is that the State remains the primary source of PULP’s funding.

One of the alarming consequences of the unresolved New York State Budget for 2010 – 2011 is the absence of future State funding for PULP in the budget proposals of the Governor and the State Senate. The latest problems may be more serious than those caused by the chronically late state budgets during the Pataki years, which led to furloughs and serious hardship for PULP and its employees.

This year, the financial situation is particularly dire because:

(1) PULP's funding has been frozen for nearly a decade;

(2) The purchasing power of the grants is less than half of what it once was; and

(3) There has been a commensurate reduction of staff and resources to work on behalf of New York's needy utility consumers.

In fact, in 2009, due to the inadequacy of the long frozen budgets, PULP halted contributions to its employee pension plan and undertook other austerity measures.

What is the real impact of PULP’s funding crisis for New Yorkers? In a nutshell, if the State does not fund PULP at a sustainable level, New Yorkers will lose the ability of PULP to participate fully in many important proceedings on behalf of low income energy and utility consumers. Without energy and utility service, low income families will go without light and heat and the ability to contact emergency services, any of which may lead to homelessness and other hardships.

Despite its reduced staffing and resource limitations, PULP has continued to make significant contributions, for example:

• Reforming practices and policies causing hardship and displacement of low income tenants when submetered electric service is provided by their landlords;
  

• Winning reconsideration of New York State Public Service Commission (“PSC”) plans for the addition of a new area code in the 315 area, avoiding unnecessary expense and inconvenience for over one million people;

• Raising concerns in the National Grid/Niagara Mohawk natural gas rate case about inadequate low income rates and customer assistance programs;

• Advocating for fuller utilization of Lifeline discount telephone service;
  

• Seeking vindication of a tenant water user's due process rights when she was refused service unless she paid her landlord's debt for past service; and

• Providing daily guidance to consumers and advocates across New York State on enforcement of Home Energy Fair Practices Act (“HEFPA”) rights, utility assistance, and prevention of utility terminations.

Since its inception more than 29 years ago, PULP has been instrumental in promoting universal service, consumer protections, and affordability for New York’s residential utility customers, achieving many milestone accomplishments with lasting value. These include:

Home Energy Fair Practices Act ("HEFPA"). This law, and its implementing regulations, is considered a national model utility consumer "Bill of Rights" and is applicable in New York State to 5.6 million residential electric utility customers and 4.1 million residential gas utility consumers. PULP is the architect of the law and vigilantly monitors its enforcement.

Low Income Electricity Rates PULP was an active party in the PSC proceeding and signatory to a global settlement that for the first time established low income rates for the residential electricity customers of a major New York utility. These rates currently provide an approximate $6 per month savings to 240,000 or 9% of its customers, or more than $17 million per year in discounts. Since 2000 when low income rates were established for this utility, almost all of the major residential electric utilities have adopted some form of low income rates.

Low Income Gas Rates PULP advocated in a 2007 PSC proceeding that brought the first ever low income rates to Long Island residential gas customers, and in two proceedings that expanded low income rates for residential gas customers in metropolitan New York and Buffalo.

Energy Consumer Protection Act and ESCO Marketing Regulation. PULP was an active party in the PSC proceeding to implement the 2002 HEFPA amendments to preserve and enhance utility customer protections when customers switch to Energy Service Company (“ESCO”) service, including the extension of HEFPA protections to transactions between residential customers and ESCOs. PULP is an active party in an ongoing PSC proceeding reviewing ESCO marketing practices and advocating more stringent standards.

Reform of Residential Utility Security Deposits and Service Denials to Collect Past Arrears. PULP successfully challenged a major utility's proposal to modify its policies on security deposits, resulting in a PSC ruling incorporating the following provisions: (i) security deposits cannot be assessed against customers who have entered into deferred payment agreements to satisfy arrears; (ii) customers who have not had service in their name within the past 60 days cannot be assessed security deposits; and (iii) a default in a security deposit payment will not automatically result in a default on a deferred payment agreement. The ruling affects any of the utility's 1.9 million customers who fail within its parameters. Also, PULP initiated a PSC proceeding and successfully challenged a major utility's untariffed requirement that applicants for residential service with arrears from a prior account pay, as a condition of service, the full amount of the arrears or $1,000, which many could not afford. In March 2008, the PSC ordered the utility to discontinue this practice. The utility serves 1,311,422 electricity and 1,958,748 gas customers.

Telephone Lífeline Program. PULP is negotiating with a major telephone service provider to improve participation in Lifeline automatic enrollment, and to end restrictions preventing Lifeline-eligible customers with service package bundles from enrolling in the Lifeline program. This would bring Lifeline service to an estimated additional 100,000 customers.

Proceeding to Examine Issues Related to a Universal Service Fund. PULP is a participant in proceeding examining the future of service in high cost areas of the state and discount programs for low income households. PULP is actìvely supporting having Voice over Internet Protocol (primarily the voice services provided by cable companies) and wireless providers contribute to state universal service funds and to expand low income support to broadband access. An estimated 560,000 low-income New Yorkers would benefit from expanded broadband access at affordable prices.

Submetering of Electric Service to Residential Tenants. PULP presently represents hundreds of tenants in low income (Mitchell-Lama and HUD) and other residential rental buildings that have undergone conversion from master electricity metering (electricity included in the rent) to submetering (tenants receive monthly electric bills). Efforts to date have

• Achieved refunds of more than $20,000 in electricity overcharges to 286 tenants in the Bronx;
• Won a three-month reprieve from submetered electricity charges for 50 tenants in Manhattan and a five-month stay of implementation of submetering for 542 HUD-subsidized tenants in Brooklyn, pending resolution of the tenants' petition to permanently halt submetering;
  
• Assisted tenants in winning a ruling from the PSC requiring a landlord to halt submetering of electrically heated premises, pending review of tenants' electricity costs, sufficiency of efficiency measures, adequacy of utility allowances, and demonstration that tenants are not disadvantaged financially;
  
• Is seeking rehearing of a PSC decision allowing submetering of electric heat at a 342 unit Yonkers apartment building with many low-income households;
• Obtained refunds of electric charges paid by approximately 448 fair market tenants in a Queens building, who should not have been charged for electric service until their leases renewed;
  
• Obtained PSC rulings affecting 1,613 tenants in Queens and the Bronx that electricity charges cannot be “deemed” to be “additional rent," a mechanism designed to displace low income tenants and circumvent HEFPA;
• Obtained PSC rulings affecting 2,446 tenants in Albany, Queens, The Bronx, and Yonkers requiring landlords to revise residential electric service complaint procedures to comply with state law and to annually notify tenants of their rights under HEFPA;
• Obtained a PSC ruling affecting 286 Bronx tenants requiring the landlord to notify tenants of the availability of a low income rate for electric service; and
• Uncovered and ended unlawful electricity submetering in a White Plains building housing 311 residential tenants.

Consumer Education. PULP publishes a Utility Law Manual as a guide for advocates on utility and energy law issues, available on its website. PULP also conducts training conferences on preventing utility terminations and the rights of utility consumers and develops accredited Continuing Legal Education programs.

PULP Website. PULP maintains an active website with information on topics relating to utility, telecommunications, and energy-related matters. The PULP website is repeatedly cited as a source of information on energy and telecommunications issues in New York State and at the federal level.

PULP EMail News. PULP publishes a weekly E-Newsletter circulated to a growing mailing list of more than 1,200 advocates, legislators, legal services attorneys, clients, former clients, media and other interested parties. The E-Newsletter frequently links to the PULP Network Blog.

PULP Hotline. PULP maintains a toll-free Hotline at 1-800-255-PULP (7857) to provide free consultation to advocates and individual consumers. PULP's target population is the approximately 2.7 million New Yorkers living in approximately 1.5 million households who are eligible for low income Home Energy Assistance and their advocates in local organizations providing social and legal services to them.

Let us be clear: Who else is engaged in protecting the rights of low income utility and energy consumers across the state other than PULP?

Unless members of the New York State Senate and Governor Paterson join in the effort to fund PULP at a sustainable level, the services PULP provides will come to an end in 2010 – and there is no alternative entity which can replace PULP and its vital, independent services.

Gerald Norlander
Executive Director
Public Utility Law Project of New York, Inc.

Update
Larry Rulison, Cuts could pull plug on voice for poor, Albany Times Union, April 13, 2010