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As previously reported, on January 10, 2024, the New York Department of Public Service (DPU) Issued separate Notice of Apparent Violation (NOAV) to the eight New York registered NRG affiliated ESCOs. (Direct Energy Services LLC, Energy Plus Holdings LLC, Energy Plus Natural Gas LLC, Gateway Energy Services Corporation, Green Mountain Energy Company, Reliant Energy Northeast LLC, Stream Energy New York, LLC, XOOM Energy New York, LLC)

Although the alleged violations are specific to each of the NRG affiliated ESCO, a common allegation from the Department was that the ESCO had continued to serve customers on an allegedly non-compliant month to month basis following the effective date of the December 2019 Order as discussed below.

The New York Department of Public Service (Department) notified each of the eight ESCOs affiliated with NRG of its apparent non-compliance with regulatory requirements. Each of these ESCOs apparently failed to enroll or renew customers on compliant products following the effective date of the Public Service Commission’s (Commission) Order Adopting Changes to the Retail Access Energy Market and Establishing Further Process (December 2019 Order) issued December 12, 2019, which required energy products to be used that the ESCO’s did not offer then or now.

Specifically Ordering Clause 6 of the December 2019 Order instructs, “Energy Services Companies (ESCOs) who are currently operating in New York that intend to continue to renew contracts with customers in New York and/or enroll new customers in New York following the effective date of Ordering Clause No. 1 are directed to file an application in accordance with the body of this Order no later than 30 calendar days following the date the revisions to the Uniform Business Practices (UBP) become effective.” The December 2019 Order, which due to extensions sought by ESCOs and granted by the Commission did not become completely effective until April 16, 2021,3 adopted enhanced eligibility requirements for ESCOs to abide by. Following the application process outlined in the UBP, which requires Staff to review ESCO documents, including copies of all contracts intended for product offerings, ESCOs that meet the criteria provided in the December 2019 Order are granted eligibility to service mass market-customers. Pursuant to that Order, ESCOs are limited to offering three products to mass market customers: (1) a variable-rate product with a guaranteed savings, (2) a fixed-rate product with a 5% cap, and (3) a renewable electric product.

The Commission’s December 2019 Order also required that any ESCO customers enrolled on a month-to-month contract, including those enrolled on a fixed-rate plan for electricity that shifted to a month-to-month contract at the expiration of the contract term, could only be served going forward via a compliant energy product following April 16, 2021, the effective date of the December 2019 Order. With respect to customers’ month-to-month contracts, the expiration of the agreement is at the end of the current billing period.14 Therefore, any ESCO customers served on month-to-month contracts were required to be returned to utility service or enrolled in a compliant product the month following the effective date of the new product restrictions, which was April 16, 2021. Despite the plain language of the December 2019 Order, it appears that the NRG affiliated ESCOs continued to serve mass-market customers on legacy agreements following the expiration of their current monthly term instead of transitioning these customers to compliant products after the April 16, 2021, effective date of the December 2019 Order. In furtherance of the Department’s continuing investigation, these NRG affiliated ESCOs were directed to submit the following: 1) An explanation as to why they failed to transfer its existing customers onto compliant products following April 16, 2021. 2) Documentation including signed/effective customer contracts to support its argument. 3) Proof that all mass market electric/as customers remained on a fixed term contract executed prior to April 16, 2021, by submitting copies of all current customer contracts.

In each of the NOAVs Staff notes that if it finds that any of these NRG affiliates reply to these NOAVs is insufficient or in any way evidences a failure to comply with the UBP and the December 2019 Order, Staff may seek an Order to Show Cause from the Commission. Such Order to Show Cause may seek penalties and remedies, up to and including the possible revocation of the ESCO’s eligibility to operate as an ESCO in the State of New York. Additionally, the Commission may choose to act on its own motion to begin a proceeding in response to the apparent violations of the UBP.

Another common alleged violation across the Notices is that the ESCO allegedly served gas customers despite its revised, post-reset eligibility being limited to a specific electricity product or products.

Energy Plus Holdings Notice of Apparent Violation 1.8.2024
Appendix A Energy Plus Holdings LLC Revised Eligibility Letter
23-02400 01/10/2024) (In the Matter of Notice of Apparent Violation Against Energy Plus Holdings, LLC.)

Energy Plus Gas Notice of Apparent Violation 1.8.2024  (01/10/2024)
23-02402   (01/10/2024) (In the Matter of Notice of Apparent Violation Against Energy Plus Natural Gas, LLC.)

Direct Energy Notice of Apparent Violation 1.8.2024
Appendix A – Direct Energy Revised Eligibility Letter 1
23-02403   (01/10/2024) (In the Matter of Notice of Apparent Violation Against Direct Energy Services LLC.)

Green Mountain Notice of Apparent Violation 1.8.2024
Appendix A Green Mountain Revised Eligibility Letter
23-02405 (01/10/2024) (In the Matter of Notice of Apparent Violation Against Green Mountain Energy Corporation.)

Reliant Energy Notice of Apparent Violation 1.8.2024
Appendix A Reliant Energy Northeast, LLC Eligibility Letter
23-02406 (01/10/2024) (In the Matter of Notice of Apparent Violation Against Reliant Energy Northeast LLC)

Stream Notice of Apparent Violation 1.8.2024
Appendix A -Revised Eligibility Letter – Stream Energy New York, LLC 1
23-02407.  01/10/2024) (In the Matter of Notice of Apparent Violation Against Stream Energy New York LLC.)

Xoom Energy Notice of Apparent Violation 1.8.2024
Appendix A Xoom Energy New York LLC Revised Eligibility Letter
23-02408  (01/10/2024) In the Matter of Notice of Apparent Violation Against Xoom Energy New York LLC.)