Provides for notification to utility customers of their right to direct access to public service commission complaint procedures without arbitration or court proceedings.
TITLE OF BILL: An act to amend the public service law, in relation to notification to utility customers of their right to direct access to public service commission complaint procedures without arbitration or court proceedings
PURPOSE OR GENERAL IDEA OF BILL: To ensure that residential utility customers, including submetered customers, are provided annual notice of their right to access the public Service Commission's complaint process.
SUMMARY OF SPECIFIC PROVISIONS: -Amends subdivision 1 of section 43 of the public service law, as added by chapter 713 of the laws of 19B1 to require the Public Service Commission to maintain regulations requiring municipalities and utilities annually notify all residential utility customers, including submetered customers, that the complaint handling procedures of the Commission can be invoked for an administrative determination of their complaint by telephone call, letter, online complaint form, or a visit to the office of the commission;
-Act taking effect on the ninetieth day after it becomes law.
JUSTIFICATION: The Public Service commission has long had primary jurisdiction over customer disputes regarding utility service, which are decided administratively subject to judicial review of final decisions under CPLR Article 7B. For residential customers the requirements for prompt and simple utility and administrative agency complaint determination procedures are now contained in the Home Energy Fair Practices Act (HEFPA), Public Service Law (PSL) 30, et seg. PSL Section 43.1 requires all utilities, upon receiving a customer complaint, to have procedures for a "prompt investigation of any complaint," and for "prompt reporting to the complainant of the result of such investigation." After any report of the utility adverse to the customer, the utility is required to "inform any complainant... of the availability of the commission's complaint handling procedures."
The bill is necessary to correct current complaint handling practices of some providers of utility service and the public Service Commission (PSC) which have had the effect of diverting complaints regarding electric service to outside third parties for arbitration or adjudication or deterring customers from lodging complaints. This impedes the provision of service in accordance with HEFPA and thwarts the prompt and efficient resolution of electricity customer complaints.
Before 2002, despite a longstanding regulation requiring landlords providing submetered electric service to implement complaint procedures "consistent with HEFPA," 16 NYCRR Part 96.2, some PSC orders approving landlords' petitions for submetering approval mention complaint procedures which involve third party determinations, such as
arbitration or court proceedings. despite the applicability of the PSC complaint handling procedures.
Some examples follow:
Binding arbitration by the American Arbitration Association: 2000 Hazel Towers Submetering Order ("Upon receipt of the protest, the matter shall be turned over to a grievance arbitrator. The arbitrator, to be selected from the American Arbitration Association or equivalent. . ."); 1998 Ruppert/Yorkville Towers Submetering Order ("The arbitrator, to be selected from the American Arbitration Association or equivalent, is to take action within a reasonable period of time....and the decision of the arbitrator will be binding to all parties");
Non-binding arbitration: 2001 Ebbetts Field Apartments Submetering Order ("the submetering plan does not provide for binding arbitration, only arbitration");
Arbitration followed by PSC complaint process: 2008 1 Alexander Street, Yonkers Submetering Order ("The property manager will submit the grievance to an independent arbitrator selected from the American Arbitration Association or equivalent, at no cost to the tenant. The decision of the arbitrator w ill be provided to the tenant promptly with notice of the arbitration procedures. If the tenant is dissatisfied with the decision of the arbitrator, either party may file a complaint with the Commission pursuant to the Home Energy Fair Practices Act (HEFPA)). New York City Landlord-tenant court proceedings: 2008 City of New York, Roosevelt Landings (Eastwood) Submetering Order, ("If a resident remains dissatisfied, the resident, within fifteen' (IS) days of management's response, may request in writing that the grievance be submitted to the New York City Civil Court Housing, Landlord/Tenant Court");
The New York City Department of Housing Development and Preservation: 1997 North Waterside Plaza Submetering Order ("If the complainant is dissatisfied with the managing agent's response, he or she may request a review of said determination by filing a written protest within fourteen days from the date of the response to HPD").
These alternative venues for complaint adjudication all involve time consuming and comparatively formal proceedings. They may also prove to be expensive and risky, for example, if an eviction case is the forum for resolution. These factors may serve to deter customers with meritorious complaints from making them, and reduce awareness at the Public Service Commission of the nature and quality of customer service actually provided by certain utilities.
Such alternative complaint procedures are inconsistent with the Commission's primary jurisdiction over electric service and with the express HEFPA requirements in PSL section 43 of a "prompt investigation" and "prompt reporting of the result of such investigation," with information provided to the customer "of the availability of the commission's complaint handling procedures."
In 2002, the legislature adopted the Energy Consumer Protection Act, and a new PSL Section 53 clearly eliminated any power of the PSC to allow
anything less than "full compliance" with HEFPA or to waive any provision of HEFPA for submeterers:
§ 53. Application. For purposes of this article, a reference to a gas corporation, an electric corporation, a utility company, or a utility corporation shall include, but is not limited to, any entity that, in any manner, sells or facilitates the sale or furnishing of gas or electricity to residential customers. No provision of this article or of this chapter authorizes or permits the provision of gas or electricity service by any such corporation or other entity in any manner other than in JO compliance with the provisions of this article or to authorize the commission to waive compliance with any requirement of this article for any such corporation or other entity.
After enactment of ECPA, the PSC amended its customer complaint handling regulations to reflect that term "utilities" includes "owners of submetered residential buildings." 16 NYCRR § 12.0. The Commission rule was upheld in a court challenge, Waterside Plaza, LLC v. NYPSC (Albany County Index No. 7654/05), Opinion dated July 3, 2006 ("Those who submeter electricity for sale to residential end-users are utilities within the meaning of Article 2 of the PSL. Accordingly, those entities must provide all HEFPA protections."). One of the HEFPA protections is notification of customers regarding their opportunity to have a complaint about utility service resolved by the Public Service Commission. PSL § 43
Subsequently, however, the PSC issued many submetering orders which contain confusing references to third party arbitration or court procedures for resolution of complaints regarding utility service. There is no basis in existing law for referral of the customer's dispute to court or arbitration. Such procedures for referral of complaints to third parties deviate from the statutory procedures established in PSL § 43. As a result of the practices of the PSC and submeterers, many submetered residential customers are confused or misinformed regarding the statutory complaint procedures which actually apply to disputes regarding their electric service.
PRIOR LEGISLATIVE HISTORY:
2009-10: Referred to Energy and Telecommunications (S.5252)
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 1399 2011-2012 Regular Sessions IN SENATE January 7, 2011 ___________Introduced by Sen. PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Telecommuni- cations AN ACT to amend the public service law, in relation to notification to utility customers of their right to direct access to public service commission complaint procedures without arbitration or court proceedings THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Legislative findings and intent. The legislature hereby finds that some providers of residential utility service have created barriers to prompt resolution of customer complaints through the complaint adjudication functions of the public service commission. Some providers of electric service refer customers to private arbitration or judicial adjudication of utility customer complaints, contrary to the primary jurisdiction of the public service commission, creating barriers to the efficient and uniform enforcement and administration of the Home Energy Fair Practices Act. The legislature further finds that it is in the public interest to require the public service commission to notify all residential utility customers of their right to file complaints directly with the public service commission for administrative determi- nation without pursuing third party arbitration or judicial relief. S 2. Subdivision 1 of section 43 of the public service law, as added by chapter 713 of the laws of 1981, is amended to read as follows: 1. The commission shall maintain regulations for the handling of resi- dential customer complaints, which at a minimum shall require that each utility or municipality: (a) maintain procedures for prompt investi- gation of any complaint on a bill for gas or electric service rendered or a deposit required and for prompt reporting to the complainant of the result of such investigation. If such report is made orally, the utili- ty corporation or municipality shall offer the complainant upon a writ-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01110-01-1 S. 1399 2
ten request the opportunity to receive the report in writing; (b) inform any complainant whose complaint is resolved in favor of the utility corporation or municipality, in whole or in part, of the availability of the commission's complaint handling procedures; (c) refrain from termi- nating service for nonpayment so long as a complaint is pending before a utility, municipality or the commission and for fifteen days thereafter, or for such period as the commission for good cause shall establish; provided however, that as a condition of continued service during the pendency of any such dispute, a customer shall pay the undisputed portions of any bill for service including bills for current usage, or such amounts as the commission determines reasonably reflect the cost of usage to such customer;
[and](d) refrain from treating the disputed portion of any bill as late during the pendency of any complaint before the utility or municipality; AND (E) NOTIFY ALL RESIDENTIAL CUSTOMERS ANNUALLY, INCLUDING SUBMETERED CUSTOMERS, THAT THE COMPLAINT HANDLING PROCEDURES OF THE PUBLIC SERVICE COMMISSION CAN BE INVOKED TO OBTAIN AN ADMINISTRATIVE DETERMINATION OF COMPLAINTS REGARDING UTILITY SERVICE BY TELEPHONE CALL, LETTER, ONLINE COMPLAINT FORM, OR VISIT TO AN OFFICE OF THE PUBLIC SERVICE COMMISSION. S 3. This act shall take effect on the ninetieth day after it shall have become a law.