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Extensive comments were filed by the retail choice community  in response to the Joint Utilities Joint Utilities Petition for Cost Recovery and Other Relief Related to General Business Law (“GBL”) § 349-d(9) and (10) that was filed on May 15, 2026.

As reported previously, the Joint Utilities asked the Commission to approve implementation and cost-recovery mechanisms associated with implementation of the recent amendments to GBL § 349-d.

In response the retail choice community in separately filed comments blast the Joint Utilities petition arguing among other things that the utilities mechanism should be evaluated against Commission’s established implementation standards, rather than allow the proposal itself to establish those standards.

An overview of retail choice comments filed are presented below.

NYRCC Comments on JU Proposal – “The Commission Should First Establish Generally Applicable Standards Governing Implementation Through a Commission-Led Rulemaking Process – “The GBL § 349-d Amendments identify the customer disclosures that must be provided, but they do not prescribe the process for implementing those new requirements. Those implementation questions call for a State Administrative Procedure Act (“SAPA”) rulemaking because they require the Commission to adopt generally applicable standards implementing statutory requirements rather than merely approving utility-specific billing-system changes. The Joint Utilities likewise recognize the Commission’s role to establish the rules necessary to implement the new requirements and have appended to their Petition a Draft Notice of Proposed Rulemaking contemplating Commission consideration of their Petition.

The significance of that rulemaking authority is particularly apparent here because the Petition does not merely propose utility-specific programming or billing-system changes. It asks the Commission to establish requirements that would govern the conduct and compliance obligations of ESCOs generally, including a requirement that ESCOs use utility-generated comparison values “without modification.”6 At the same time, numerous predicate questions affecting those obligations remain unresolved. The open issues are not merely technical matters concerning how a particular utility programs its billing system. Among other things, the Commission must determine which customers are covered; what constitutes the utility comparison value; how prior-period adjustments, rebills, reconciliations, taxes, and budget billing are treated; how energy related value add services (“ERVAs”) charges are reflected; what information utilities must provide to ESCOs; when a utility-generated value becomes final; how errors and disputes are handled; and what an ESCO must do when required utility information is unavailable or disputed when a statutory disclosure is due.”

The Joint Utilities’ Treatment of ERVAs Demonstrates Why a CommissionLed Rulemaking Must Precede Utility Implementation – “The Petition’s treatment of ERVAS provides perhaps the clearest example of an unresolved statutory question that cannot be resolved through the JU’s implementation proposal. The statute requires the first page of an ESCO billing statement, whether delivered by the ESCO directly, “by a utility corporation” or through another method, to include the side-by-side comparison and, separately, “an itemized list of prices charged by the ESCO for any energy-related value-added products” provided during the billing period.8 GBL § 349-d(10) separately requires the annual statement to address the commodity, delivery, and ERVAs charges paid by the customer and to convey unambiguously whether the customer saved money or paid a premium for ESCO service over the twelve-month period. . . The Commission must determine, at minimum, what products fall within the statutory category of ERVAs, how the ERVAs disclosure is to be provided for utility-consolidated-billing customers if existing utility billing arrangements prohibit ERVAs charges from appearing on the utility bill; whether additional information must be transmitted by the ESCO to the utility for presentation; whether a separate ESCO communication can satisfy the statutory first-page requirement; and what changes, if any, are necessary to the UBP, billing agreements, or electronic-data processes.”

Commission Guidance Is Required to Identify Covered Small Non-Residential Customers – “The proposed customer-count allocation mechanism depends on accurate identification of the residential and small non-residential customers subject to GBL § 349-d. That determination is generally straightforward for residential accounts, but it can be more complex for commercial accounts: the statutory definition incorporates the small non-residential customer criteria under PSL § 66-w, and utility service classifications, meter configurations, account structures, and commercial contracting relationships do not always align with that statutory category.

Circumstances requiring careful classification include:

• a single commercial customer responsible for numerous individual meters or utility accounts;
• colleges, universities, or housing arrangements with multiple separately metered locations;
• master commercial agreements covering numerous utility accounts;
• incidental properties held under a common customer relationship; and
• gas accounts governed by annual usage thresholds rather than service classification alone. The Coalition urges the Commission to establish guidelines for these circumstances and a process for ESCOs and utilities to jointly verify covered-account status before it is used to calculate ESCO assessments.”

At minimum, utilities should be required to:

• identify the basis on which each account is classified as covered;
• provide ESCOs with a process to challenge apparent classification errors;
• correct assessments when classifications are corrected; and
• ensure that ESCOs are not financially responsible for additional charges caused by utility misclassification, duplicate counting, or other utility-side classification errors.

RESA Comments on JU Petition – The Joint Utilities Should Provide More Financial Information Before Any Cost Recovery is Approved – “RESA submits that, before the Commission approves cost recovery for the implementation of GBL §§ 349-d(9)-(10), the Joint Utilities should provide more granular and reliable financial data for review. While RESA does not doubt the Joint Utilities will incur costs close to those estimated in the Petition if their respective proposals are adopted without amendment, RESA also notes the Petition was not accompanied by any verification, workpapers, per-item estimates, or other information besides lump sum average anticipated total implementation costs, sometimes bundled among related utility companies and across commodities.”

The proposed Cost Recovery Mechanism Creates Cross Subsidization Across the Industry and Should Not Be Used – “If the cost recovery mechanism proposed by the Joint Utilities in the Petition is implemented without change, costs among ESCOs will be divided in part based on a number of customers that are not impacted or affected by GBL §§ 349-d(9)-(10), and in addition, ESCOs that do not serve mass market customers will be unfairly saddled with the costs of implementation. Moreover, as explained above, the Joint Utilities presented financial information that is not clear as to how it is derived (whether it is based on mass market customers or all customers) and is bundled with related utility companies, making it difficult to determine two key issues: (1) which costs are appropriately recovered by which utility, and (2) which ESCOs should be responsible. RESA is also concerned that the proposed use of the purchase of receivables (“POR”) programs to facilitate cost recovery, while efficient, may inadvertently triangulate ESCOs into a violation of GBL § 349-d(10-a)(a).”

The Joint Utilities Should Not Be Responsible For Determining ESCO Customer Classification – “The Petition indicates the Joint Utilities either can, or seek to implement system upgrades, to determine which ESCO customers are “mass market,” and which customers are outside this classification. This determination is important — as a threshold matter, the provisions of GBL §§ 349-d(9) and (10) apply only to customers that are either “residential utility service from an ESCO or a small non-residential customer, as that term is defined in [PSL § 66-w], receiving utility service from an ESCO.”12 These customers are collectively referred to as “mass market” customers”

The Department Should Convene a Stakeholder Meeting – “Throughout these comments, RESA has requested that a stakeholder meeting be convened to address implementation of this law and ensure that all parties have a fair understanding of the respective positions of the other parties. It is clear that RESA members are in a better position to assist the Joint Utilities in identifying mass market customers than the Joint Utilities anticipated, as RESA members and ESCOs have a decade of experience in identifying these customers using existing utility infrastructure. A stakeholder meeting would allow ESCOs to share these methods of identification with the Joint Utilities and perhaps eliminate some of the system upgrades requested. This stakeholder meeting could also address other important questions related to the implementation of GBL §§ 349-d(9)-(10) that are not raised in the Petition, such as the substance and form of the annual cost comparison notice that ESCOs must send to their mass market customers. To address these and other issues arising from the implementation of GBL §§ 349-d(9)- (10), RESA respectfully requests that a stakeholder meeting be convened as soon as possible. III. REQUEST FOR STAY The Petition indicates that the Joint Utilities are working to implement the law and that once the changes proposed in each of the Joint Utilities’ implementation plans are complete, “the bill comparison will begin to populate on the ESCO portion of the consolidated bill that is supplied by the utility. This could potentially occur prior to a Commission order is issued [sic] in response to this Petition.”37 Based on the limited information provided in the Petition, the Joint Utilities may be implementing changes and anticipating reimbursement for costs and upgrades that have not been 37 Petition, 2-3, note 6. 22 51393781.1 22 51393781.1 B. The Department Should Convene a Stakeholder Meeting Throughout these comments, RESA has requested that a stakeholder meeting be convened to address implementation of this law and ensure that all parties have a fair understanding of the respective positions of the other parties. It is clear that RESA members are in a better position to assist the Joint Utilities in identifying mass market customers than the Joint Utilities anticipated, as RESA members and ESCOs have a decade of experience in identifying these customers using existing utility infrastructure. A stakeholder meeting would allow ESCOs to share these methods of identification with the Joint Utilities and perhaps eliminate some of the system upgrades requested. This stakeholder meeting could also address other important questions related to the implementation of GBL §§ 349-d(9)-(10) that are not raised in the Petition, such as the substance and form of the annual cost comparison notice that ESCOs must send to their mass market customers. To address these and other issues arising from the implementation of GBL §§ 349-d(9)- (10), RESA respectfully requests that a stakeholder meeting be convened as soon as possible.”

Family Energy Comments  – A Commission Rulemaking Should Be Commenced to Provide Industry Guidance on Implementation of New General Business Law Sections 349-d(9), (10) and (10-a) – “Section 2 of Chapter 685 of the Laws of 2025 specifically contemplates the necessity of a rulemaking to implement new Sections 349-d(9), (10) and (10-a). It states that “[e]ffective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made on or before such date.”

“The detail missing from the JU Petition is that the “extensive” changes to information technology, billing, and customer communications for which they are seeking cost recovery approval have been initiated without first having received Commission guidance and rules on how to comply with new GBL Sections 349-d(9), (10) and (10-a). For example, rules regarding the required content (such as whether the comparison will be based on per unit figures or total bill amounts), appearance and placement of the Bill Message under Section 349-d(9) have not been established. (Notable here is that the JU Petition does not include any sample bill pages for review). The required content of the Annual Statement has not been established in a rule either.”

A Utility Price to Compare Benchmark for GBL 349-d Disclosure Purposes Should Be Established – “More fundamentally, before the contents of a Bill Message or Annual Statement can be assembled, a common definition of the utility “price to compare” benchmark for these purposes must be established. (Beside reference to the undefined term “hypothetical full service supply,” the JU Petition is also lacking in this detail). Both the Bill Message and Annual Statement are intended to enhance price transparency to consumers through the provision of comparative ESCO and utility rate information. A rulemaking to establish the utility “price to compare” benchmark is needed to effectively accomplish this task.”

ESCO Compliance Obligations Should Be Addressed in the Rulemaking – “Compliance issues that are specific to ESCOs should also be addressed in the rulemaking. For example, when should the Annual Statement be issued – 12 months after the effective date of the customer’s enrollment or with reference to a static calendar date? The timing of the Annual Statement must also be coordinated to reflect the timing at which data becomes available, i.e., any lag in the availability of utility rate data must be accommodated and also permit time for the ESCO to generate the notice once the utility rate data is received. The length of time that the historical utility rate data will be available to ESCOs should also be established (this is important, for example, in the case of customer cancel/rebills as discussed further in Section III).”

The JU Petition Proposals for Data Sharing are Problematic – “The aforementioned issues should be addressed in a rulemaking prior to consideration of the JU Petition. Notwithstanding the premature status of the JU Petition, the utilities proposals in the JU Petition for sharing utility rate data with ESCOs for the Annual Statement are problematic for other reasons. The utilities approach to sharing utility rate data in the JU Petition is to share the twelve-month historical data specific to each individual customer, but the methods that they propose to share the data are different.”

The JU Petition Proposal for Cost Recovery Should Be Suspended Until Compliance Obligations are Established in a Rulemaking – “The cost recovery proposal in the JU Petition is based on assumptions of billing and IT changes without the benefit of a Commission rulemaking that finalizes compliance obligations under the new law. The consideration of the cost recovery proposal should be suspended until a rulemaking is concluded. Moreover, relying on public posting of utility price to compare benchmark information as suggested above for GBL 349-d disclosures would also minimize implementation costs because it would eliminate the need for the proposed EDI changes or web platform changes.”