Shutoff Season is Here – Part II. Are Shutoff Notices Adequate?

Are New York Utilities Adequately Notifying Customers of their Rights Prior to Shutoffs for Bill Collection Purposes?

Shutoff notices sent by utilities may not be giving sufficient notice to customers about how to access the utility’s complaint handling process and if that is not successful, how to get a deferred payment agreement to avoid termination, how to get decision on a complaint by complaining to the utility first and then to the PSC if the utility does not resolve the complaint, or how to access assistance.  For example, a notice sent by Con Edison to a 90 year old customer billed for ESCO service she did not agree to states “THIS IS A FINAL TURN-OFF NOTICE” but it

• does not clearly state “the earliest date on which termination or disconnection may occur” as required by the regulation. 16 NYCRR 11.2(a)(i);
• does not state the factual and legal basis for termination, 16 NYCRR 11.2(a)(ii);
• does not mention the possibility of a deferred payment agreement under 16 NYCRR 11.10, which requires the utility to offer and negotiate a deferred payment agreement prior to making a written offer 10 days before the earliest termination date;
• does not clearly notify the customer of the “availability of utility procedures for handling complaints,” 16 NYCRR 11.4(d)(2)(iv), and how to invoke it and obtain a decision from the utility; and
• does not provide clear information about the PSC complaint procedure or PSC hotline or the possible .

The so-called FINAL TURN-OFF NOTICE vaguely references a prior notice and simply states that “a notice explaining your rights is enclosed.”  Similarly, the Con Edison brochure on “Customer Rights and Responsibilities” does not give sufficient information about any utility complaint procedure by which a customer can get a reasoned decision on a complaint, or how a customer could then obtain a decision by the PSC on the complaint.  Rather, it simply says:

“If you have a question about your account and are not satisfied with our answer, ask to speak with a supervisor.

If you have spoken with a supervisor and still disagree with Con Edison’s findings, you may contact the PSC****”

Telling customers who struggle through the fine print looking for help that they should ask to “speak with a supervisor” does not square with the official rule of the PSC, which provides:

“The utility shall allow complaints to be accepted and processed in a simple manner and form. Every utility shall promptly investigate any complaint in a fair manner and report the results to the complainant. If the report of the investigation is made orally, the utility shall offer the complainant, upon written request, the opportunity to receive the report in writing. A utility resolving a complaint in whole or in part in its favor shall inform the complainant of the availability of the commission’s complaint handling procedures, including the commission’s address and telephone number. Every utility shall file with the commission its procedures for fulfilling the requirements of this section, and any changes in such procedures must be filed at least 30 days prior to implementation. A utility shall refrain from terminating, disconnecting or suspending service for nonpayment during the pendency of a complaint before the utility or the commission and for 15 days after resolution by the utility, or by the commission or its authorized designee, unless otherwise provided by the commission or its authorized designee; provided, however, that as a condition of continued service during the pendency of 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 or its authorized designee determines reasonably reflect the cost of usage to such customer. [Emphasis added]

The Home Energy Fair Practices Act (HEFPA) requires utilities to have and to publicize their own internal complaint procedures, and when efforts of a customer to resolve disputes with the utility are not successful, HEFPA requires the PSC to decide customer complaints.  Specifically, Public Service Law 43 governs complaint handling procedures of the utilities and of the commission.  To implement PSL 43, the Public Service Commission issued regulations regarding utility complaint handling in Part 11.20, and the PSC’s complaint handling rules are in Part 12 of its regulations.  These regulations provide for initial written decisions by the agency on complaints, informal hearing or review of an initial decision, and appeal to the commission itself.  If a customer is dissatisfied with a final commission decision, it is possible to seek judicial review under CPLR Article 78.

Merely telling customers that they can ask for a supervisor, but not about the opportunity to get a decision on a complaint from the utility in writing and time to appeal it if unsatisfied, and merely saying that they may “contact the public service commission” without telling about the opportunity to get a commission decision on their complaint is not adequate or sufficient notice of the customer’s right to obtain a decision from the utility and if unsatisfied, a binding adjudication by the commission on the merits of a complaint.

Customers can initiate the PSC complaint process by

• Using the online PSC complaint form , or
• Telephoning the PSC complaint line at 1-800-342-3377, or
• Sending a FAX to the PSC at 518-472-8502,  or
• Mailing a letter to the PSC offices at any of these addresses
  • Empire State Plaza, Agency Building 3, Albany, NY 12223-1350
  • 90 Church Street, New York, NY 10007-2919
  • Ellicott Square Building, 295 Main Street- 10th Floor, Room 1050, Buffalo, NY 14203, or
• In person at PSC offices.

The PSC’s system for administrative adjudication of disputes is meant to be navigable by residential customers who typically lack legal assistance.   There are three stages in the rules:  an initial determination, an informal hearing (or review at the customer’s option), and appeal to the commission. At each stage the rules require the utility and the PSC to inform the customer clearly what they may do to seek further review of an adverse decision.

Unfortunately, the PSC has added an additional process not in its rules, which in essence requires the customer to complain three times in order to get a PSC decision on a complaint:  first to the utility, then to the PSC, and then to the PSC again if the utility does not provide satisfaction.  This “Quick Resolution System” is described in detail in a “Service Providers Guide to Handling Consumer Complaints Filed with the New York State Department of Public Service.”  When the customer calls the PSC, the PSC refers the complaint back to the utility for executive review, and subject to some exceptions, the PSC will not then investigate or decide the complaint.  The utility is asked to review the matter and make a decision, convey the new decision to the customer, and tell the customer if they are not satisfied they may contact the commission, again.

Persistence is required to obtain a PSC determination on a customer complaint.  In a sense, access to a real utility internal complaint process required by HEFPA is now gained only by complaining to the PSC.