As you may already know, on February 1, The Records Access Officer of the New York State Public Service Commission (the “Commission”) released its ruling denying confidential treatment to Historic ESCO Price Filings. The Commission’s decision, however, is not final. An appeal can be filed with the Commission Secretary, by February 10. This decision will have a negative impact on suppliers, especially those with unique offers. The Impacted ESCO Coalition, as a leading representative of New York based small energy businesses, is interested in hearing your feedback on the Commission’s determination.

For background, after the Commission announced its intention to make public historic ESCO pricing information for 2014 and 2015, the Impacted ESCO Coalition (“IEC”), along with RESA and NEM argued against the Commission’s plan to make public confidentially filed Historic ESCO Pricing data from 2014 and 2015. The Commission, however, was not convinced by any of the arguments presented and decided that Historic ESCO Pricing Data is not entitled to an exception from disclosure as trade secrets or confidential commercial information.

In its Statement of Necessity to the Commission, the IEC argued that disclosure of ESCO historic price filings would damage ESCOs in two ways. First, disclosure of pricing information, even price averages by an ESCO, amounts to disclosure of proprietary pricing information that can be reverse engineered by other ESCOs. Second, because the disclosure of information by the Commission includes average data, it fails to accurately inform the customer on the benefit of affinity programs, white glove customer service, and value added products like renewable energy content, associated discounts on related services offered by ESCOs and other innovative product offerings. By failing to account for such added value, the public release of data will hurt suppliers and fail to help customers – ultimately damaging the overall competitive market. Similar Arguments were raised by RESA and NEM, and several individual ESCO filers.

The Commission found that none of the arguments presented proved the existence of a trade secret, or demonstrated that there was a likelihood of substantial competitive injury resulting from disclosure of the claimed confidential commercial information. The Commission reasoned that no one competitor could be in an advantageous position towards another because each ESCO’s information would be disclosed equally. Clearly, the Commission made the unwarranted assumption that all suppliers are offer identical products and plainly ignored value added services and differences in products. Nor did the Commission accept the argument that prices can be reverse engineered, explaining that it is simply not possible to reach that conclusion with annual average prices and the absence of customer counts.

Again, the Commission’s decision may be appealed; but the appeal is due in less than a week. We will be happy to represent your concerns to the Commission, as part of our greater efforts to level the playing field for small energy businesses. Please reach out to us directly at info@fellerenergylaw.com to share your feedback on this ruling.