With Millions of Phone Numbers Still Unused in 315 Area Code Region, PULP Urges PSC Not to Add New Area Code Now

Background
In December 2007, the New York PSC issued an order launching its move to create a new area code in what is now the 315 area code region, which encompasses Syracuse, Utica, Watertown and many smaller communities in north central New York. Adding a new area code creates a burden for consumers, whether it be done as a geographic split of the region (requiring area code prefix changes) or as an "overlay" whereby new numbers are added with a new area code, with the result that different family members in the same household might have different area codes.  In another case, the PSC summarized some of the inconveniences placed on large numbers of customers when area codes are changed. explaining that

area code changes ... are a major burden on consumers. New area codes cause confusion to callers and potential safety issues when hospitals, ambulances, and public health and safety institutions are required to change their telephone numbers. The records for 911, which include telephone numbers, need to be changed when area codes change. Errors in record changes can result in serious health, safety and welfare concerns. The accuracy of telephone numbers is also a security issue. If contacts are not reachable because of outdated area codes on old contact lists, security may be compromised. Businesses suffer economic harm when their area codes are changed. They are required to advertise the new numbers, contact existing customers, and revise all stationery showing their new telephone number. They face the possibility of losing business during area code transition periods when customers use an old number.

Also, there is a finite number of usable area codes, and if the day comes when they are all used, the North American Numbering Plan (NANP) would need to be revised, to add more numbers than the current ten numbers used throughout the US and the 20 countries in the NANP, i.e., (518) NXX-1234, where NXX is the local central office code prefix.  Thus, it is important not to waste numbers.  As stated recently by the Federal Communications Commission in an order regarding numbers for cable VoIP telephony,

Telephone numbers are a valuable and limited resource; access to and use of numbers must be managed judiciously to ensure that they are available as needed and to protect the efficient and reliable operation of the telephone network.

PULP opposed the PSC's 2007 proposal to add a new area code in 315 because only about one third of the usable numbers in 315 - 2.7 million out of 8 million - were actually used.  See PULP Network, PSC Considering “Area Code Relief” For 315 -- Where Did All The Numbers Go?, March 5, 2008.  PULP urged more careful distribution of numbers and more proactive efforts to make unused numbers available in localities where they are needed, and made a motion to stop the push for a new area code and for further investigation.  See PSC Puts 315 Area Code Changes on Hold Pending Investigation, March 24, 2008.

The "need" for a new area code is driven by the improvident allocation of central office codes (the "NXX" in the telephone number (518) NXX-1234) to sparsely populated areas.  This occurred as part of the failed effort to create robust local telephone competition, when the PSC approved giving new companies numbers 10,000 at a time.  As a result, local phone centers in tiny communities that were once served by one NXX code that had ample spare numbers received multiple NXX codes with 10,000 numbers each, most of which were never used.  For example, Star Lake, population 860, got three additional NXX codes in addition to the original Verizon NXX, totaling 40,000 numbers.  There are so many numbers in Star Lake there is no room for fish.  Other areas saw even greater squandering and stranding of number resources.

The mistake of issuing large blocks of numbers to new phone companies in rural 315 areas was belatedly recognized, and in 2006 the FCC empowered the New York PSC to reduce blocks of new numbers to 1,000 in all areas, including 315, where number exhaustion was projected within five years.

Once an office code has even a few numbers in it, it cannot be easily moved to another area, and to "decontaminate" it, numbers may need to be changed.  In many instances, though, the numbers used by the competitive companies in their NXX codes are unseen shadow or "ported" numbers, with the customer retaining the original number from Verizon, so the shadow number could be shifted to an NXX that would remain in the local community, and the customer number would not need to be changed.  Also, technological advances may make it possible to free up numbers in lightly used NXX codes now stranded in rural areas. Recent advances now allow porting of old wireline numbers to wireless numbers, in the process de-linking numbers from the original NXX, and so PULP believes it may be feasible to shift some lightly used NXXs to other areas in the 315 area that need them more, with no customer inconvenience, and at lower cost when compared with the massive disruption of a unnecessary and avoidable area code overlay.

The PSC denied PULP's motion for more investigation and an on the record technical conference to examine ways to forestall a new area code.  See PULP Network, PULP Asks PSC to Reconsider Refusal to Investigate Alternative to New Area Code in 315, May 07, 2008.

An Administrative Judge ruled that a new area code should be implemented as an overlay, and not a geographic split, as some had recommended.  See PULP Network, ALJ Recommends “Overlay” Telephone Area Code Requiring 11-Digit Dialing, Despite Plentiful Numbers and Exchange Codes in Central New York’s 315 Area, December 8, 2008.

A bill was introduced in both houses of the New York Legislature to require the PSC to take stronger steps to avoid the inconvenience of area code changes to consumers in the 315 region.  See PULP Network, Bill Would Require PSC to More Closely Scrutinize Area Code Changes, April 10, 2009.

PULP submitted further evidence regarding a change in the projected number exhaustion date.  See PULP Submits New Evidence to PSC Showing No Need for Area Code Changes Now in Central NY 315 Area, April 29, 2009

The PSC then realized that the issuance of NXX codes had slowed since commencement of the proceeding, and called off implementation of the new area code.  See PULP Network, PSC Acknowledges 315 Area Code Change is Not Needed, June 15, 2009.   The Commission cited the Great Recession as the reason for the halt.  See PULP Network, PSC Didn't Provide Complete Explanation When it Ended its 315 Area Code Proceeding, June 19, 2009.

Revival of the Proposed New Area Code Overlay
Since the 2009 halt of plans to put in a new area code, approximately fifty net new NXX codes were issued, and earlier this year NANPA gave notice to New York that 315 was likely to need more central office codes by the first quarter of 2015.  The PSC issued an order reviving the proceeding, which had been dormant, and announced that it intended to reinitiate the proceeding to hold further hearings and to receive further comments on the ALJ's Recommended Decision to implement a new overlay code, in the belief it "would benefit from additional information concerning changes in technology or usage patterns."

On August 7, 2013, PULP submitted its Comments Regarding Options to Make Additional Central Office Codes Available.  Pointing out that the majority of potentially assignable numbers in 315 remain unused due to improvident distribution of NXX codes, PULP asked for a new Department of Public Staff Report or White Paper to discuss measures taken since 2009 to limit issuance of new NXX codes and reclaim unused numbers. In the absence of a White Paper, PULP issued discovery requests to Department of Public Service Staff, which are not yet answered.

PULP urged that the Commission move deliberately and that it conduct further inquiry into number conservation and reclamation measures to avoid inconveniencing households and businesses in the 315 area. There should be time to do that because no new NXX codes have been issued since October 2012.  There are still 57 NXX codes unassigned in 315, representing 570,000 more numbers available, even if there is no reclamation.

Regarding changes in technology, PULP asked for further inquiry into whether obstacles to transferring misallocated NXXs could be overcome with new technological capabilities.  PULP noted that technology similar to that used for number porting between wired and wireless numbers may have made it possible to change the location of a lightly used NXX in a rural area without changing customer numbers.  According to the Number Portability Administrative Center,

Before LNP [local number portability] was established, the NPA-NXX of a telephone number identified the state and rate center where the number was originally assigned, the service provider and the carrier type (wireline or wireless). Today, because telephone numbers have been ported between wireline and wireless service providers, the NPA-NXX of a telephone number only identifies the state and rate center where the number was originally  assigned. **** Because LNP allows a number to be moved from one switch to another, the NPA-NXX of a telephone number is no longer a reliable indicator of the serving switch and service provider's identity.

PULP urged further inquiry whether similar technology would allow the transfer of a lightly "contaminated"  NXX from a rural location where it is not really needed to a location where it is needed, or whether there may be other technological solutions to free up numbers trapped unused in rural areas.

PULP urged the Commission to adopt the general policy of the Pennsylvania PSC to avoid new area code implementation by vigorously policing the issuance of new numbers and more aggressively seeking return of unused numbers.  PULP suggested that New York take the lead nationally by seeking added authority from the FCC to give out and reclaim numbers in blocks of less than 1,000 to improve saturation of existing NXX codes before allowing new ones in 315.

Comments on the case can be made online at the PSC online case file for Case 07-C-1486.  Papers filed in the proceeding are also at that site.

Gerald A. Norlander

Update

COMMISSION PUTS 315 AREA CODE CHANGES ON HOLD
— Revised Forecast Results in New Area Code Exhaust Date —
Nov. 14, 2013

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Utility Law Project Opposes Time Warner Petitions for Waiver of Consumer Protection Rules on Telephone Shutoffs, Billing Practices, Customer Service Standards

On August 1, 2013 the Public Utility Law Project of New York, Inc. filed comments opposing the petition of Time Warner Cable Information Systems (Time Warner) for waivers of New  York State Public Service Commission rules limiting the days and times when telephone service can be shut off for bill collection purposes, billing and collection rules that require separation and selective service blocking when customers in arrears make partial payments, service quality standards for repair service, and directory issuance.  See PULP Network, Time Warner Asks PSC to Greenlight Prime Time Evening, Friday Afternoon and Saturday Phone Shutoffs for Collection Purposes, and to Relax Other Consumer Protections, June 20, 2013.

The Utility Law Project argues that the Commission should not further "streamline" enforcement of its telephone consumer protection rules, as it has been doing for more than fifteen years of "price cap" or "performance regulation" in the name of promoting deregulation and competition. The performance standards do not measure effectiveness of telephone companies in providing discounted Linkup and Lifeline service to low income customers, and do not measure the number of interruptions of service for bill collection purposes, or the effecitiveness of companies in working with customers to arrive at deferred payment plans to help continue service during periods of temporary household financial difficulties.

In exhibits attached to its comments, the Project pointed out that during this era of deregulation or regulatory forbearance, according to FCC statistics New York household telephone subscribership,  which once was above the national average, has sunk to the point that it is not only below the national average but is now fourth lowest of the 50 states.

The Utility Law Project asks for further proceedings to investigate and correct Time Warner's billing and collection practices, which do not give customers in arrears information about how a partial payment can be designated to preserve a priority service while others may be selectively blocked due to arrears, and the means to designate the payment on payment forms.  Also, Time Warner notifies customers on their bills that nonpayment of charges for cable TV or broadband service may result in shutoff of telephone service, without providing information about how telephone service or other services may be selectively preserved if a customer cannot afford full payment.

The Utility Law Project opposed the requested waiver of service repair quality standards.  Time Warner seeks to limit applicability of repair timeliness to its customers who are "core" customers, and does not include in the proposed definition of "core" those who may lack other landline options.   The Project argues that the existence of competition does not mean basic service standards can be jettisoned, and that there is no real landline competition, because telephone markets in New York are at best a duopoly between the local phone companies and the local cable company, and in some situations still a virtual monopoly.

The Utility Law Project initiated discovery to learn more about Time Warner's proposals, which, if granted, may vitiate the performance regulation standards. See PULP Asks for More Information from Time Warner Regarding its Petition to Relax PSC Regulations on Snips and Allocation Priority of Part Payments,  July 25, 2013.

Papers filed and an opportunity to make online comments are available at the PSC online case file for Case 13-C-0193.
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Opponents of Central Hudson Takeover File Petitions for Rehearing, Rate Investigation, and Temporary Rates

On July 26, 2013 Citizens for Local Power, Assemblyman Kevin A. Cahill, and PULP filed petitions with the Public Service Commission for rehearing of the June 26, 2013 PSC Order that approved a non unanimous settlement agreement for the acquisition of Central Hudson Gas and Electric Company by a Canadian holding company, Fortis, Inc.  Central Hudson is the utility serving approximately 300,000 electric and about 75,000 natural gas customers in eight counties of New York State's Mid-Hudson River Valley, and delivering electricity and natural gas in a 2,600 square-mile service territory that extends from the suburbs of metropolitan New York City north to the capital district at Albany.

The petitions present procedural and substantive reasons why the Commission erred in approving the takeover and extending, with modification, the rate plan.

The petitions assert that the State Administrative Procedure Act (SAPA) Notice never included notice that the Commission would set future rates in the merger case.  Further, no Revised SAPA notice was filed regarding the "Joint Proposal" of the settling parties, in which the Commission adopted a substantially modified merger proposal, different from the one originally filed by Central Hudson and Fortis, Inc.  Also, no Revised SAPA notice was filed regarding a Letter to Commissioners from Central Hudson and Fortis proposing extension and modification of the rate plan for another year, after all the parties had submitted their briefs to the Commission regarding a Recommended Decision that had recommended disapproval of the merger.  As a consequence there was no SAPA notice or opportunity to comment or scrutinize the revised proposal to modify and set rates for another year.

Citizens for Local Power and Assemblyman Cahill objected to the lack of evidentiary hearings, which had been scheduled but were cancelled by the Commission after some of the parties, including Department of Public Service Staff and Central Hudson and Fortis, Inc., reached their agreement. Citizens for Local Power objected to the refusal to consider evidence regarding the fitness of Fortis, based on its track record in other areas.  Their petition rebuts the Commission's assertion that there was substantial support for the merger, showing that overwhelming majority of public commenters and groups were against it.  They demonstrated that much of the claimed public support was traceable to Central Hudson's campaign aimed to get letters from its employees and non profit groups to which it gives money. The petitions also faulted the merger plan for not providing Central Hudson customers adequate protection from possible future voluntary bankruptcy of the utility under a Fortis-controlled board of directors.

The petitions said the rate plan allowing a 10% Return on Equity (ROE), when standard Commission methodology calls for 8.9%, is unreasonable, and amounts to a potential difference of more than $17 million in excess allowed earnings through June 30, 2015. Demonstrating that Central Hudson has achieved actual ROEs greater than 8.9% for the trailing four quarters in in ten out of eleven past quarters, the petitions asked for an investigation of the reasonableness of Central Hudson's current rates, terms and conditions.  PULP also asked for investigation of Central Hudson's low income rates and practices regarding the interruption of service for bill collection purposes, submitting data showing that shutoffs have risen from 4,688 in 2005 to 13,687 in 2012. Also, the percentage of customers shut off has risen from 1.89% in 2005 to 5.99% in 2012, and  Central Hudson provides fewer deferred payment plans, as a percentage of customers, than any of the major investor owned utilities in the state.

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Utility Law Project Asks Time Warner For Information Regarding Petition to Relax PSC Regulations on Snips and Allocation Priority of Part Payments

Time Warner Cable Information Services ("TSWCIS") has petitioned the PSC for relaxation of regulations governing its telephone service provided to residential customers through its Voice Over Internet Protocol ("VOIP") technology, which uses cable lines to deliver phone service, broad band service, and TV service. See Time Warner Asks PSC to Greenlight Friday Afternoon and Saturday Phone Shutoffs for Collection Purposes, and to Relax Other Consumer Protections, June 20, 2013.

TWCIS also seeks waiver of the obligation to provide directories, and to limit its service quality obligations to a narrowed definition of "core" customers.

The notice is as follows:

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure
Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: The Commission is considering a petition of Time
Warner Cable Information Systems (New York), LLC for waivers of
certain Commission regulations under 16 NYCRR.
Statutory authority: Public Service Law, sections 91(1), 94(2), 98
Subject: Partial payments, directory distribution, suspension or termination
of service, service quality reporting requirements.
Purpose: To waive certain sections of 16 NYCRR sections 602, 603, 606,
609.
Substance of proposed rule: The PSC is considering whether to approve,
in whole or in part, a petition by the Time Warner Cable Information
Systems (NY) LLC the waiver of certain sections of 16 NYCRR:
16 NYCRR 602.10(b): to waive the Commission’s rules requiring it to
distribute telephone directories.
19 NYCRR section 609(4)(d): to waive the Commission’s rules pertaining
to the company’s ability to suspend to terminate service to residential
customers for nonpayment of bills between certain weekday or Saturday
hours.
NYCRR Section 606.5: to modify billing categories and the application
of partial payments.
NYCRR Sections 603.3 and 603.4: for the revision of Service Quality
Improvement Plan reporting requirements.

Text of proposed rule and any required statements and analyses may be
obtained by filing a Document Request Form (F-96) located on our
website http://www.dps.ny.gov/f96dir.htm. For questions, contact:
Deborah Swatling, Public Service Commission, 3 Empire State Plaza,
Albany, New York 12223-1350, (518) 486-2659, email:
Deborah.Swatling@dps.ny.gov
Data, views or arguments may be submitted to: Jeffrey C. Cohen, Acting
Secretary, Public Service Commission, 3 Empire State Plaza, Albany,
New York 12223-1350, (518) 408-1978, email: secretary@dps.ny.gov

The SAPA Notice was issued June 19, and the standard 45 day comment period expires August 3, though that could be enlarged or late comments may be accepted after that date.

The Public Utility Law Project of New York has asked for more information in a discovery request to TWCIS.

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Phone Deregulation Bill Slips Through Legislature, Awaits Action by Governor

The Supreme Court has observed that "requirements . . .  that common carriers file their rates ... and charge only the filed rate are the centerpiece of the ... regulatory scheme****Rate filings are, in fact, the essential characteristic of a rate-regulated industry."

In the waning days of the recent legislative session, a telephone deregulation bill slipped through that would allow New York phone companies to change their prices, terms and conditions at will, without filing them at the PSC, for undefined "nonbasic" services.

As a substitute, the bill would require companies to post their service offerings and prices at the phone company website and allow them to change prices, terms and conditions by giving customers 30 days notice of a change.  There is no requirement regarding how conspicuous the notice must be.

The fundamental premise of the bill, that it is needed to level the regulatory playing field between traditional phone companies like Verizon and Frontier and cable companies is plainly wrong.  The memo in support of the bill states that "Today the marketplace is highly-competitive, and most of the providers in the market, including large cable providers that offer telephone services, are not required to file or maintain tariffs....

The bill was filed before Time Warner's Voice Over Internet Protocol (VOIP) phone service was recognized to be a fully regulated telephone service.  See PULP Network, Time Warner Asks PSC to Greenlight Friday Afternoon and Saturday Phone Shutoffs for Collection Purposes, and to Relax Other Consumer Protections, June 20, 2013.

Time Warner acknowledges in its petition to waive certain customer protection regulations that it must provide its VOIP telephone service  "as a fully regulated service...."

Thus, the entire thrust of the bill, to level the regulatory playing field with cable company phone services, has been mooted by this recent development, which occurred in March, 2013, after the bill was filed.  The design of the regulatory paradigm for purportedly competitive services should be left to the PSC which is better able to adjust the degree of regulation with changing industry conditions and changing customer preferences.

If  approved by the Governor, the law would allow phone companies the power  to impose contracts of adhesion without an opportunity for review by the PSC.  There is no potential check against luring customers into subscribing to ever-shifting, slightly different, and difficult to compare repackaged service offerings, and then raising prices.

In essence the bill legalizes what would otherwise constitute illegal "bait and switch" tactics.   It allows companies to tout promotional rates for new service packages in flashy advertising, promising savings, but then, after the customers take the "bait", the seller reneges and "switches" their accounts to higher priced plans.

The provision in the bill regarding notice of rate changes merely says

5.  AT  LEAST THIRTY DAYS PRIOR TO AN INCREASE IN RATE FOR A NON-BASIC SERVICE, A TELEPHONE CORPORATION SHALL NOTIFY ANY AFFECTED  PERSON  THAT SUCH PERSON MAY OPT OUT OF SUCH NON-BASIC SERVICE AT ANY TIME WITHIN THE THIRTY DAYS PRIOR TO THE INCREASE BECOMING EFFECTIVE.

There is no requirement in the bill how this information is to be presented.  There is no requirement that the notice of change that will govern the future price or scope of services be conspicuous, in large type or in plain language. There is nothing to prevent burying notice of price changes or service limits in boilerplate fine print of bills, or put into the fine print bill inserts that often go unread by busy consumers paying their bills. A growing number of utility consumers have chosen automatic payment options offered by the utilities to deduct payments from their checking accounts, so many customers spend little or no time looking at their bills or bill inserts.

Many elderly persons with weak eyesight and non English speaking customers, lured by phone solicitations promising bargain prices, will not get effective notice of the price changes.  More effective notice would require large print, multiple methods (email if the company has the customer's email address), or phone if that is how the customer switched to the service in the first instance.

Even assuming customers are aware of forthcoming price hikes, the notion that abusive bait and switch practices will be deterred by competition -- that informed consumers would bolt to alternative providers when faced with price hikes in the plan to which they subscribed -- is pure fantasy.

There is no real competition in the New York landline phone markets. Rather, these markets are oligopolistic at best.  In most places the market is duopolistic, consisting of the incumbent copper landline phone company (e.g., Verizon) and the local cable provider (e.g., Time Warner).  Game theory teaches that the result will not be competitive prices and service offerings.  Rather, the players will reach Nash equilibria closer to monopolistic pricing.  This leaves customers with little choice but to accept changes in terms and conditions of service, with reduced potential of monitoring by the PSC.

As a substitute for regulation, the bill requires phone companies to publish their rate changes on their websites.  This is not an effective means of information for many New Yorkers because broadband penetration in New York households is woefully far from universal.  According to the State Broadband Office,

An estimated 700,000 New Yorkers (325,000 households) lack access to broadband at home. This is more than the entire population of many States. Many of New York’s gaps in broadband service exist because of the high costs of building networks in areas where population is sparse. For example, in the geographically challenged North Country region of the State, 10% or 43,000 New Yorker’s do not have access high-speed Internet.

Also, many elderly persons do not the internet at all, or only use it for limited purposes such as email.  For those who have broadband, the internet may be an effective way to obtain pricing and service offering information.  But this bill is not needed to accomplish that.The PSC could and should require all utilities to maintain in plain language a description of all service offerings and prices at their websites. This would aid consumers with more transparency regarding prices and terms of competitive offerings, as the PSC  has recently begun with the competitive energy providers (ESCOs).

The bill also is ambiguous because it does not define "nonbasic" service. The PSC regulations, Part 609 define "basic local exchange service" as 

(e) The term basic local exchange service shall include the following charges for residential service:

(1) customer access line, including any usage bundled in this charge;

(2) local measured service;

(3) local measured units;

(4) locality rates;

(5) mileage;

(6) late payment charges on local exchange service;

(7) subscriber line charge;

(8) taxes and surcharges prorated to reflect only the taxes and surcharges associated with local exchange service;

(9) nonpublished service;

(10) touchtone;

(11) local exchange service restoral charge;

(12) NSF check charge for local exchange service or any part of local exchange service;

(13) service order charge for local exchange service;

(14) construction charges for local exchange service; and

(15) intra LATA toll service and interregional calls unless intraLATA prescription is offered and selective intra-

LATA access is available.

Some services are not readily sorted into "basic" and "nonbasic".  The trend in recent years has been to blur the pricing of "basic local exchange service" by combining --"bundling" -- it with long distance, so that the price of the local service is not readily transparent.  Many people now buy flat rate bundled local and long distance services which combine "basic local exchange" service and Intra-LATA and Inter-LATA long distance service at a flat rate, and further bundle that phone service with other services such as DSL or cable broadband, and other services.

Traditionally, the PSC asserts jurisdiction over bills that combine "basic local exchange" service with other offerings, and regulates the allocation priority of payments when customers in arrears make part payments to preserve the more basic communications services. These services may have varying degrees of regulation by different regulators, e.g., the PSC and the FCC, which are in flux.  As a policy matter high speed broadband will eventually be seen as a "basic" telecommunications service too, requiring universal availability, and this is State broadband policy now:

New York State is poised to eliminate the digital divide and ensure every community, business, resident and visitor has the digital resources necessary to live, work and enjoy all that New York has to offer through the Internet.

In sum, the bill would limit future PSC regulation of "nonbasic" service.  What is "basic" and "nonbasic" is not defined in the law.  The degree of regulation over "nonbasic" regulated services is in flux, and may shift over time as state and national policies evolve. The bill unnecessarily adds to ambiguity and may limit future regulatory options.


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AG Moves to Stop VZ Substitution of Wireless VoiceLink for Landline Service in Catskills - AARP Files Comments - PSC Extends Public Comment Time

In an Emergency Petition filed with the PSC June 26, 2013, the Attorney General seeks to halt Verizon's broader substitution of its wireless VoiceLink service for traditional copper landline phone service, which can support DSL and fax applications that the wireless service does not support.  Earlier, the PSC rejected an effort of Verizon to adopt a broad tariff allowing wireless substitution in the aftermath of asserted damage to its landline facilities on western Fire Island after the Sandy storm.  See AG Opposes Verizon Push to Substitute Wireless for Copper Landline Telephone and DSL service. Verizon's Answer says that it is only substituting the wireless service for landline at customer request.  In its Reply filed July 2. 2013, the Attorney General cites instances of customers being pressured to take the wireless substitute and misinformation regarding the purported need to shift from landline to cell service:

It appears from the above incidents that Verizon is not merely offering Voice Link as an alternative to landline service, permitting customers to freely choose between Voice Link and having their landline service repaired. Even when a customer makes a choice not to accept Voice Link, Verizon continues to press for the substitution at every point of contact. Verizon provides false information, such as asserting that storm damage from Sandy rendered the land line network in the Catskills beyond repair. Verizon also fails to provide consumers with a clear description of the telephone-related features, including fax machines, alarm systems, and medical alert services, that cannot be used with Voice Link. This is clearly not optional consumer choice, and it is incumbent on the Commission to take prompt action to protect consumers from such improper practices.

There is suspicion in some quarters that the substitution of the wireless service in the name of storm damage was being used to advance a broader agenda of market division with cable providers, who would be the only remaining landline provider of broadband after Verizon jettisons its unionized copper line and DSL services to focus on its non unionized wireless division:

Given that it no longer faces the threat of integrated cable competitors, Verizon could potentially spin off its remaining Consumer Wireline assets,” along with “large” pension and benefit liabilities, the Goldman analysts said.

Jonathan Browning & Cornelius Rahn, Verizon Fixed-Line Sale Would Enable Vodafone Combination, Goldman Says, Jan 6, 2012, Bloomberg.com.  Verizon is ranked as New York's fifth-largest employer, with 27,000 workers.

The PSC is seeking public comments on Verizon's original tariff filing that would allow greater latitude for the company to substitute wireless for landline service beyone Fire Island, and on June 28 extended the public comment date from July 2, 2013 to September 13, 2013.  To date there have been 290 public comments, including extensive comments of AARP raising concerns over Verizon's actions and proposals.  See Verizon Draws AARP Opposition Over Move to Eliminate Landlines in NY, Assoc. Says Utility Co.'s Post-Sandy Agenda Would Leave NY Consumers in a Lurch, Jeopardizing Public Safety, July 1, 2013.

Online public comments in the case can be filed from here.  Meanwhile NY PSC Staff are conducting discovery to probe Verizon's assertion that it is not cost effective to repair its landline facilities in the storm damaged areas of Fire Island, asking why apparently ample spare facilities are not being used.

Gerald A. Norlander

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Moreland Commission Recommends Stronger Utility Consumer Advocacy

The Moreland Commission  on Utility Storm Preparation and Response, was created on November 13, 2012 by Executive Order No. 73.  While its main focus was investigation of the Long Island Power Authority and storm issues, its mission also encompassed the broader functioning of utility regulation in the state:

(A) study, examine, investigate and review: (i) the emergency preparedness and response of utilities during and following emergency weather events, including the performance of the utilities during and following emergency weather events; (ii) the adequacy of present laws, rules, regulations, practices and procedures with respect to utilities’ emergency preparedness and response; (iii) the adequacy of existing oversight and enforcement mechanisms; (iv) the structure, organization, ownership, financing, control, management and practices of the utilities as they affect emergency preparedness and response; and (v) the provision of utility services to New York State under the existing legal regulatory framework, including but not limited to the jurisdiction, responsibilities and missions of the New York Power Authority, the Long Island Power Authority, the New York State Energy and Research Development Authority, as well as the Public Service Commission; (B) report and make recommendations for legislative, policy and regulatory changes, as well as reforms as deemed appropriate in utility structure, management and practices, to best protect and serve the public’s interest with respect to emergency preparedness and response, and the provision of safe, reliable, responsive utility services; and (C) review any other matters or activities which may affect the issues herein before specified....

In its Final Report issued June 22, 2013, the Moreland Commission issued several broad recommendations for legislative action to improve the system of state utility regulation and the functioning of the Public Service Commission (PSC).  These include
adding a "public interest" criterion to the currently nonexistent statutory qualifications of PSC Commissioners,    removing the exemption of the PSC from the State Administrative Procedure Act provisions regarding  private "ex parte" communication during cases with PSC Commissioners and their advisors, and
enhancement of utility consumer advocacy.

PSC Commissioner Qualifications.

The Moreland Report lamented the "decline of New York utility regulation" noting that the New York Public Service Commission, historically was nationally preeminent in utility regulation, but had in the past 20 years had years become less than stellar in its composition and achievements:

Throughout our work the Commission has been struck by one overarching shortfall. The people of New York have not been well served by aspects of the diminution and reorientation of utility regulation over the past 20 years. The Commission believes that the PSC of the 1970s, chaired by Joseph Swidler and then by Alfred Kahn and then again under the leadership of Peter Bradford from 1987 to 1995, was a national model. Its decisions were widely emulated and cited and it was staffed by recognized leaders in most of its fields. Top staff positions were filled on a nonpartisan basis and rarely if ever changed for political reasons.

The Commission considered whether statutory changes should be made, noting that the "New York State Public Service Law contains no minimum technical requirements for appointments to the Public Service Commission."  The Commission did not go down the road of specifying particular expertise as a prerequisite to service on the Commission:

The Moreland Commission believes there is little to be gained from specifying academic backgrounds or professional categories in an effort to raise the quality of Public Service Commissioners, and in fact a number of fields could prove useful in such a position, including: accounting, business, consumer advocacy, economics, engineering, environmental studies, finance, and law. Statutory qualifications add only a small weight to the scales in appointments, confirmation, and public evaluation. Of more value is a demonstrated commitment and competence in furthering the public interest in the areas relevant to utility regulation. The Moreland Commission therefore recommends the Governor immediately adopt a policy for future PSC appointments and that the Public Service Law be amended to require that appointees to the PSC have such competence.

The Commission made the following recommendation:

Appointees to the Public Service Commission should have demonstrated in their careers a commitment and a competence in furthering the public interest in one or more areas relevant to utility regulation; the Public Service Law should be amended to codify this requirement.

Ex Parte Communications.
The Moreland Commission urged legislative change and PSC regulations to implement controls over ex parte communications, stating:

The Commission learned during the course of its investigation that it is statutorily permissible and common practice for utility company executives, lobbyists and other paid representatives of interested parties to have unfettered access to the PSC Chair and Commissioners without having to disclose details of these conversations, presentation materials or other specifics to the other parties participating in cases before the PSC ex parte communications consist of  evidence, arguments or other information related to a disputed issue pending before a decision-maker or in advance of such submission. Such  communications are made in a manner that makes that information insufficiently available to challenge and counter by the adversely affected party or those with differing viewpoints. Since ex parte communications enable one party to influence a decision-maker off-the-record and outside the presence of the other interested parties, it effectively skirts procedural due process. Ex parte communications have the effect of undermining the indispensable fairness and unbiased attributes of decision-makers in judicial and administrative proceedings. 

The Moreland Commission did not propose to prohibit all ex parte communications, which may be useful for PSC Commissioners and staff in their information gathering, but would require those involved in ex parte communications to divulge that a contact with the PSC or its DPS staff outside the case process has been made and substance of the communication, as most other state and federal jurisdictions have done.  The Recommendations are:

• The existing statutory exemption of ex parte rules as they relate to public utility commissions
must be eliminated so as to subject the PSC to the same rules that other State agencies that are
bound by SAPA.

• Upon elimination of the statutory exemption of ex parte rules, the PSC should enact an
implementing regulation that includes a specific triggering event, preferably with a set term
prior to filing with the PSC, along with sanctions that are sufficient enough to deter violations
(i.e., fines).

See NY PSC Ex Parte Communication Practices Faulted by Moreland Commission.

Consumer Advocacy
The Commission recognized that there is a problem in New York with the lack of  adequately funded utility consumer advocacy, stating at Page 13: "The State should create an independent consumer advocacy board that represents all utility ratepayers in rate cases and general consumer-related functions. More particularly, the Commission recommended creation of a new Citizens Utility Board:

The Commission believes strongly that the PSC, once New York has better qualification standards for appointees as well as stricter ex parte rules (see sections 6.1 and 6.2), requires a robust, permanent, professional consumer advocate office to represent ratepayers. There are three possible models that the  Governor – or Governor and Legislature – should consider: 

• An Executive Order could establish a CUB with an initial board of three members appointed by the governor, speaker, and majority leader respectively that mirrors Illinois’ volunteer funding model      whereby it is empowered to raise funds from individual ratepayers. Thereafter an Executive Director will be chosen by the Board or by the contributing members. Along with support staff, they will be charged with drafting governing CUB regulations.
 • Legislative Option A: establish a gubernatorial administered CUB with an alternate funding Mechanism whereby   it would receive a fixed percentage of either the PSC’s or NYSERDA’s annual budgets.
 • Legislative Option B: establish a gubernatorial administered CUB with an alternate funding mechanism whereby it would receive a fixed percentage of either the PSC’s or NYSERDA’s annual budgets, with an Executive Director appointed for a fixed term removable only for cause. The Commission urges the State to take action to ensure that the CUB be insulated from political interference and budget retaliation.
 Recommendation:• The State should create a Citizens Utility Board that is independent, controlled by ratepayers, adequately funded and not subject to political interference using one of the models identified herein.

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NY PSC Ex Parte Communication Practices Faulted by Moreland Commission

In the recent Central Hudson merger and rate plan extension case, it may be that ex parte presentations played a role in the Commission's unexpected overturning of the Recommended Decision of Administrative Law Judges presiding in the matter to reject the acquisition of the utility by Fortis, Inc.

In addition to storm and LIPA related matters, the Moreland Commission on Utility Storm Preparations and Response also looked at the functioning of New York's utility regulatory system.  One of the matters criticized in their Final Report is the practice of unreported "ex parte" communications at the PSC, between utility representatives and Commissioners or their advisors which are not divulged to parties in the case or the public.  New York's practice is at odds with the practice of most other state and federal utility regulatory agencies.

The Moreland Report states:

6.2 EX PARTE COMMUNICATIONS
While there are various ways in which any interested party may appear before and/or file comments with the PSC, it is obvious that there exists disparity in the ability of certain classes of utility customers to avail themselves of direct access to the decision-makers at the PSC and DPS. The Commission learned during the course of its investigation that it is statutorily permissible and common practice for utility company executives, lobbyists and other paid representatives of interested parties to have unfettered access to the PSC   Chair and Commissioners without having to disclose details of these conversations, presentation materials or other specifics to the other parties participating in cases before the PSC ex parte communications consist of evidence, arguments or other information related to a disputed issue pending before a decision-maker or in advance of such submission. Such  communications are made in a manner that makes that information insufficiently available to challenge and counter by the adversely affected party or those with differing viewpoints. Since ex parte communications enable one party to influence a decision-maker off-the-record and outside the presence of the other interested parties, it effectively skirts procedural due process. Ex parte communications have the effect of undermining the indispensable fairness and unbiased attributes of decision-makers in judicial and administrative proceedings. Thus, actions to control those communications, in the form of statutory frameworks, become necessary for those proceedings before the agency to maintain fairness and transparency with the public-at-large. Of particular concern to the Commission is that many ratepayers lack the necessary resources to express their opinions and concerns on matters that impact their lives and their pocketbooks, and that of other similarly situated New Yorkers. Such deficiencies may result in certain customers or customer groups, who are not in a position to advocate for themselves and may feel marginalized when compared to utility companies and other special interest groups during proceedings before the PSC. The Commission questions the fairness of allowing one side with virtually unlimited resources total access, while the other side lacks a similar voice.

Based on the Commission’s research, the only two states that currently lack a statutory framework construct to control and manage ex parte communications concerning utility regulation are New York and Massachusetts. New York, in fact, through statute specifically exempts the application of any ex parte rules as they relate to public utility commissions.... The statutory carve-out against the inclusion of ex parte rules as applied to public utility proceedings is unique to New York State....

6.2.1 APPROACHES TO MANAGING EX PARTE COMMUNICATIONS
The exact verbiage used to limit or prohibit ex parte communications varies from state to state, but differs little in substance, each limiting ex parte communication. The real difference between each states’ rules relate directly to the timing of the imposition of a ban on ex parte communication and whether communication is absolutely prohibited or instead, requires notice to all parties. Most states prefer a noticing provision and New York’s State Administrative Procedures Act (SAPA) Law governing state agencies (those to which it applies) prohibits communication in adjudicatory proceedings “except upon notice and opportunity for all  parties to participate”, therefore the timing of the imposition of the ban is the more relevant issue here. [FN]

Approach 1: Imposition Upon Filing
The majority of states impose a “contested case” triggering event for the ban on ex parte communication to begin. In short, once a case is brought before an agency or commission, ex parte communications are prohibited. For example, Ohio’s rule states:

After a case has been assigned a formal docket number neither a member of the public utilities commission nor any examiner associated with the case shall discuss the merits of the case with any party or intervener to the proceeding, unless all parties and interveners have been notified and given the opportunity of being present or a full disclosure of the communication insofar as it pertains to the subject matter of the case has been made. Failure of any assigned examiner of the public utilities commission or any commissioner to abide by this section may, at the discretion of the commissioners, lead to that examiner's or commissioner's removal from a particular case or appropriate disciplinary action. [FN] This approach sets a clearly defined triggering event that encompasses the entire public comment and decision-making process.

Approach 2: Imposition Prior to Case Assignment
A small number of states ... have all imposed earlier triggering events related to the assignment of a case or a docketing of such matters. In particular, Florida has a very early triggering event that delineates a 90-day pre-filing period, where no ex parte communications can occur after a 90-day set out date from any filing in front of an agency or commission. This is the most conservative approach; however, in some cases it may be difficult to predict the specific date that the rules would begin.

Approach 3: Imposition upon Initiation of Decision-Making Phase
A very small minority of states have a later triggering event. [They] impose ex parte rules once a proceeding has moved to the decision-making phase and any deliberations by the decision-maker have begun. This triggering period excludes the period before and during any public proceedings. This approach is the least conservative application of ex parte rules and does not include the public comment period which is critical in developing the record used in the PSC’s deliberative process.

Perhaps one of the most important mandates of the PSC is to protect and enforce the rights of the public. The rules that govern New York’s regulatory 
environment are complex and require specific acumen to navigate. The public expects, and indeed deserves, to be afforded full disclosure of PSC and DPS inte ractions with the parties involved in its proceedings. If the PSC is to hold itself out as safeguarding the public interest, it then must codify ex parte communications rules, thereby placing all New York ratepayers on a level playing field.

Recommendations:
• The existing statutory exemption of ex parte rules as they relate to public utility commissions must be eliminated so as to subject the PSC to the same rules that other State agencies that are bound by SAPA.

• Upon elimination of the statutory exemption of ex parte rules, the PSC should enact an implementing regulation that includes a specific triggering event, preferably with a set term prior to filing with the PSC, along with sanctions that are sufficient enough to deter violations (i.e., fines). 


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LIPA Agreement Announced

Legislative agreement has been announced regarding revision of the operating structure of the Long Island Power Authority ((LIPA).  The announcement includes a chart comparing the existing and fully privatized scenarios with the new arrangement, which retains public ownership in LIPA but gives the private operating company more powers to change its rates, terms and conditions of service, reduces the role of LIPA in overseeing its contractor, which will be PSEG, and substitutes an advisory role of the PSC to "recommend" but not actually determine matters, including rates and customer complaints under HEFPA.
The draft bill would exempt PSEG from the consumer protection duties of an electric company under Article 2 of the Public Service Law, the Home Energy Fair Practices Act. It is not clear how customers will fare under the new arrangement, for example, whether PSEG will keep service on while customer complaints are pending PSC review or whether PSEG will follow the "recommendation" of the PSC is complaint matters. See PULP Network, Will LIPA "Reform" Provide Equal Consumer Protections for Long Island Electric Customers?, May 20, 2013.

The announcement says the LIPA deal "will also achieve savings to allow the new utility to seek a rate freeze for 2013, 2014 and 2015." The rate "freeze" discussed in the announcement, however, is apparently a freeze only of the transmission and distribution rates, and would not foreclose changes in the price of generation service.

It is unclear how energy will be purchased for Long Island customers after the change, which will sharply reduce activities of LIPA and shift duties to the contractor. In New Jersey, PSEG conducts a generation supply auction to obtains energy for its basic service customers.  LIPA is in a "load pocket" which limits the availability of competitively priced generation supply,  LIPA has obtained diverse sources of generation supply through contracts and other means, but it appears this role will shift to PSEG.

The option of full LIPA reprivatization urged by some was apparently not feasible, as this would require rate increases to cover higher interest private debt and to garner a fair return on private investors' capital, currently in the range of 9%.  When LIPA purchased the electric assets of the Long Island Lighting Company (LILCO), LILCO's rates were highest in the state.  Simply by shifting to public ownership by LIPA, bills were reduced by 20%, and leadership for the dubious honor of highest rates of a major electric utility in New York state has been held ever since by investor-owned Con Edison.

According to the American Public Power Association, publicly owned electric utilities generally have lower rates than investor owned utilities.  Consultant reports have found that undoing public ownership of LIPA, which allowed cheaper financing of the stranded costs of an unused nuclear power plant, and which avoided the need for rates to cover a 9% or so profit return on investors' equity, would require rates to go up. A 2005 report suggested that the opportune time to transition LIPA to private ownership is after 2013, when the higher costs of private ownership could be offset after more LIPA bond repayments were made and rates would otherwise go down.

LIPA has bonds scheduled to be paid off in September 2013 and in 2014, which will reduce costs, and any refinancing of current debt will likely result in savings because interest rates are low.  So other things being equal, if its transmission and distribution rates are frozen at the current level, and if all power purchasing costs are passed through to customers, LIPA may be able to earn a surplus or cover new expenses without rate increases as financing costs come down.

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Time Warner Asks PSC to Greenlight Prime Time Evening, Friday Afternoon and Saturday Phone Shutoffs for Collection Purposes, and to Relax Other Consumer Protections

Time Warner's phone service subsidiary (Time Warner Cable Information Services (New York) LLC) filed a Petition on May 1, 2013 with the Public Service Commission, seeking "Waivers of Certain Commission Regulations Pertaining to Partial Payments, Directory Distribution, Timing for Suspension or Termination of Service, and a Partial Waiver of Service Quality Reporting Requirements." In a commendable development, Time Warner acknowledges it is now providing telephone service through its Voice over Internet Protocol (VOIP) technology "as a fully regulated service...." and that it is therefore subject to the Commission's telephone consumer protection regulation.

Previously, cable companies claimed their VOIP service is not telephone service but an unregulated information service.  This recognition that phone service is being provided is a welcome change long urged by the Public Utility Law Project of New York, and of benefit to the more than one million Time Warner phone customers in New York State.

Now that it is concededly a regulated telephone service provider, Time Warner is acting like other regulated phone companies, in that it immediately is seeking to relax the rules designed to protect customers.

Prime Time Evening, Friday and Saturday Shutoffs for Bill Collection Purposes.
Time Warner seeks to expand the hours when it can shut off telephone service for bill collection purposes, to include Saturdays from 8:00 AM to 5:00 PM, Fridays from 3 PM to 9:00 PM, and Monday to Thursdays until 9:00 PM. The state regulations on the timing of  phone shutoffs are designed to protect customers at times when their ability to remedy or forestall a shutoff or seek assistance is limited.  Section 609.4(d) of the PSC telephone service regulations, informally known as the Telephone Fair Practices Act (TFPA), bar the interruption of telephone service for collection purposes on Fridays after 1 PM, Saturdays, Sundays, and holidays:

(d) Suspension or termination of service--time. A telephone corporation complying with the conditions set forth in this section may suspend or terminate service to a residential customer for nonpayment of bills only between the hours of 8 a.m. and 7:30 p.m., Monday through Thursday, and between 8:00 a.m. and 3:00 p.m. on Friday, provided such day or the following day is not:
(1) a public holiday, as defined in the General Construction Law;
(2) a day on which the main business office of the telephone corporation is closed for business; or
(3) during the periods of December 23rd through December 26th and December 30th through January 2nd.

Exhibiting a fine sense of humor rarely seen in PSC filings, Time Warner says "it would like to extend these hours [when customers can be shut off] ... "for its customers' convenience."!

The purpose, however, of restricting utility shutoff times is not to mirror the times when a utility will receive payments, but to enable customers to obtain timely assistance in preventing termination or promptly restoring service.  Assistance is potentially available through the PSC, which has power exercised under TFPA to decide bill disputes, supervise and revise payment plan arrangements on terms affordable to customers, deal with situations where continued or resumed service is medically necessary, and, when appropriate, order the service to be put on.

The telephone shutoff rules initially mirrored HEFPA.  Under HEFPA, the Commission is required by statute, PSL 32,  to forbid electric and gas companies from terminating service on Fridays and weekends:

"The  commission  shall  preclude terminations for nonpayment other than between the hours of eight  a.m.  and  four  p.m.,  Monday  through Thursday,  provided  that  such day or the following day is not a public holiday....

After HEFPA was enacted by the legislature to address gas and electric service shutoffs, the Commission administratively adopted TFPA rules for telephone customers, without legislative direction.  The TFPA rules initially mirrored the HEFPA no-terminations-on-Friday rule.  Subsequently, however, the telephone companies won a relaxation of the rule to permit Friday terminations until 1 PM.  This was justified on the grounds that the Commission's Hotline service is potentially available until 7:30 PM Monday - Friday to intercede if a customer has a dispute or needs assistance in working out terms to forestall shutoff or restore service.  That purpose would be frustrated by Time Warner's proposal.

Allocation of Partial Payments
Time Warner seeks a waiver of Commission rules regarding allocation of undesignated partial payments between services, so that phone service would be paid first --"bucket 1 charges" -- and then the payments would be applied to all remaining charges -- "bucket 2" -- which could be for Time Warner services such as  internet or cable TV.  Consideration should be given instead to making it easier for customers to choose the service to which a partial payment is applied.  For example, a customer might want to jettison cable TV and keep the internet on to hunt for jobs during a spell of unemployment or other household financial crisis.  While the bills include separate items for cable TV, broadband, and telephone services, there is no information given in the bills on how customers can, if they are in arrears, keep the service they pay for with a partial payment.  Indeed, Time Warner bills have boiler plate which says that if the portions of the bill for TV or broadband are not paid, telephone service may be shut off.

Service Quality and Directories.
Time Warner seeks a waiver of service quality rules regarding the timeliness of repairs and keeping appointments, etc.  Verizon successfully won a relaxation of rules that only count incidents of deficient service to "core" customers, and Time Warner wants the same -- and more.

The PSC limited its service quality metrics and penalties to "core" customers, defined as those who have low income Lifeline reduced rate service, those with special needs (medical conditions, elderly, blind or disabled), and those who lack competitive opportunities for alternative service, who cannot deal with bad service by switching companies.  Time Warner pronounces that since it is a competitive company the rule should not apply.  This invites reexamination of the ill considered withdrawal of oversight, which occurred at a time when there was more optimism about customers having more choices of providers.  Recently, we have seen a situation where what was at most a duopoly of landline phone service providers is dwindling, due to the effort of Verizon to withdraw from the copper landline service, as is occurring on part of Fire Island.  In that situation, the only landline provider is the cable company.

Also Time Warner seeks relaxation of the rule requiring provision of directories to customers.

The Utility Law Project believes the Petition for approval of night time, Friday afternoon and Saturday telephone service terminations should be denied forthwith, in order to protect customers at risk of termination, and that the other relief requested should not be entertained until after public comments are received and further proceedings are held.  The PSC issued a SAPA notice inviting comments at page 22 of the State Register for June 19, 2013.

The 45 day public comment period expires August 3, 2013.  Public Comments can be filed electronically here.

Gerald A. Norlander
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Governor Names Audrey Zibelman as New PSC Commissioner and Chair

The composition and leadership of the New York Public Service Commission is in flux.  In a swift move at the end of the legislative session Audrey Zibelman was nominated by the Governor to be a Commissioner of the New York Public Service Commission, replacing Commissioner James Larocca, who is serving at will after the expiration of his term.

In addition, she will be designated to be the new Chair of the Commission, replacing current Chairman Garry Brown in that role.  See Times Union Capitol Confidential, New PSC commissioner candidate spills beans about chair post, and Senate breezes through confirmations, June 19, 2013.

It is not clear whether or for how long Commissioner Brown will continue to serve on the Commission after the mantle of Chairmanship is shifted.  There is also a vacancy on the Commission due to the recent resignation of  Commissioner Maureen Harris.

Zibelman comes with much energy and utility experience.  According to the Governor's press release,

Ms. Zibelman is a Founder and was President and Chief Executive Officer of Viridity Energy, Inc., which she formed after more than 25 years of electric utility industry leadership experience in both the public and private sectors. Ms. Zibelman is a recognized national and international expert in energy policy, markets and Smart Grid innovation. Previously, Ms. Zibelman was the Executive Vice President and Chief Operating Officer of PJM, a Regional Transmission Organization that operates the world’s largest wholesale power market and serves 14 states throughout the eastern United States. Ms. Zibelman also held executive positions at Xcel Energy, served as General Counsel to the New Hampshire Public Utilities Commission, and as Special Assistant Attorney General in the Minnesota Attorney General’s Office.

  In an upbeat note, she is quoted in the press release as saying it is her goal for New York to become "the platinum standard for delivering reliable, affordable, resilient and clean energy services."  The emphasis on affordability, rare at the Public Service Commission, is heartening.  According to Bloomberg Business Week, she has seen the effects of poverty at close range.

Audrey Zibelman spent two years in the Peace Corps in the late 1970s, working in a village in Chad which had no electricity. She was struck by how the lack of power exacerbated poverty. “For these people I was living with, about 80 to 90 percent of their day was spent just on staying alive,” she recalls.

Perhaps some of that experience in Chad -- which  is ranked 163rd out of 169 countries on the 2010 United Nations Human Development (UNDP) Human Development Index -- will come to bear in New York on neglected universal service and affordability issues.  For example, telephone penetration in low income households is sagging, more than 200,000 Con Edison customers are threatened with shutoff each month due to unpaid bills, and around 300,000 New York residential customers, and their families, experience interruption of service each year as a bill collection measure.

On an encouraging note, the Governor's Press Release states that "she will be an aggressive regulator and strong advocate for New York’s ratepayers.” The concern expressed for customers is welcome. Historically, the role of the New York Commission has at times lacked focus on doing justice for consumers.  For example, in 1932, former New York Governor and President Franklin Delano Roosevelt described his vision of the PSC:

When I became Governor, I found that the Public Service Commission of the State of New York had adopted the unwarranted and unsound view that its sole function was to act as an arbitrator or a court of some kind between the public on the one side and the utility corporations on the other. I thereupon laid down a principle which created horror and havoc among the Insulls and other magnates of that type.

I declared that the Public Service Commission is not a mere judicial body to act solely as umpire between complaining consumer or the complaining investor on the one hand, and the great public utility system on the other hand. I declared that, as the agent of the Legislature, the Public Service Commission had, and has, a definitely delegated authority and duty to act as the agent of the public themselves; that it is not a mere arbitrator as between the people and the public utilities, but was created for the purpose of seeing that the public utilities do two things: first, give adequate service; second, charge reasonable rates; that, in performing this function, it must act as agent of the public, upon its own initiative as well as upon petition, to investigate the acts of public utilities relative to service and rates, and to enforce adequate service and reasonable rates.

The regulating commission, my friends, must be a Tribune of the people, putting its engineering, its accounting and its legal resources into the breach for the purpose of getting the facts and doing justice to both the consumers and investors in public utilities.

For background on prior PSC appointments, see

• Greg Sayre Confirmed as New PSC Commissioner
• State Senate Begins Review of PSC Nominees
• Governor Paterson Renominates Two PSC Commissioners;
• In a New York Minute, Governor Paterson Appoints and Senate Confirms James Larocca as New PSC Commissioner;
• Public Interest Coalition Urges Transparency in Selection Process for PSC Commissioners;
• Will Governor Paterson Repurpose the Public Service Commission to Protect Consumers?
• More New PSC Commissioners Coming Soon?;
• Governor Spitzer Nominates NYISO Executive for PSC Post.

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