Originally Published February 4, 2016

On June 24, the New York Public Service Commission Secretary issued a final ruling denying confidential treatment to Historic ESCO Price Filings. This ruling denied the appeals of the National Energy Marketers Association (“NEMA”) and the Retail Energy Supply Association (“RESA”), and reaffirms the Commission Records Access Officer’s (“RAO”) February 1, 2016 ruling denying confidential treatment to Historic ESCO Price Filings. Historic pricing data will now be disclosed by the Commission, negatively impacting the competitive positions of ESCO’s in the retail market.

For background, after the Commission announced its intention to make public historic ESCO pricing information for 2014 and 2015 on December 4, 2015, the Impacted ESCO Coalition (“IEC”), along with RESA and NEMA, argued against the Commission’s plan to make public confidentially filed Historic ESCO Pricing data. 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.

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 over another because each ESCO’s information would be disclosed equally. Clearly, the Commission made the unwarranted assumption that all suppliers offer identical products and plainly ignored value added services and differences in products. The Commission was also unpersuaded by 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.

NEMA and RESA appealed the RAO’s decision on March 2, arguing that the RAO erred in reaching its decision. NEMA argued that the underlying formulas of price were themselves “trade secrets,” and thus ESCO prices should be entitled to trade secret protections. RESA similarly argued that disclosure of price would substantially harm ESCO’s, thus warranting trade secret protection. The Commission denied both appeals, stating that the “RAO properly found that the entities that submitted Statements of Necessity failed to meet their burden of establishing that disclosure of the respective compilations of average prices of products each ESCO sold in 2014 and 2015, without customer counts, constitute ‘trade secrets,’ or that disclosure of such information would be likely to cause substantial competitive injury…”

Disclosure of ESCO historic price filings will likely 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.