On January 26, 2017, the New York Public Service Commission held the first procedural conference concerning the Track I evidentiary process described in the Notice of Evidentiary and Collaborative Tracks and Deadline for Initial Testimony and Exhibits that was issued on December 2, 2016. The purpose of the procedural conference was to identify parties, discuss a procedural schedule and address issues related to discovery for Track I of the evidentiary process. In Track I of this proceeding, the Commission intends to build an evidentiary
record of the current state of the retail energy market—a record that the New York Supreme Court found lacking in the Reset Order litigation earlier this year. That record may include extensive and detailed historic data related to the actual prices charged to retail electric and gas mass-market ESCO customers, number of ESCO customers served, volume of sales, complaint data and more. Importantly, while the Notice stated that “[a]ll parties to the proceeding may be subject to discovery regarding Track I issues,” the Commission Staff (“Staff”) indicated that they intend to serve interrogatories on all ESCOs, regardless of whether they are a party to the proceeding. While non-party ESCOs may not be required to respond to such administrative discovery requests, Staff may serve a subpoena on non-party ESCOs to produce documents for the proceeding, such as pricing data. (Staff stated their belief that they have the statutory authority to do so). Importantly, the Administrative Law Judge (“ALJ”) stated several times that she does not intend to limit the issues to the 20 items listed in the Notice, potentially broadening the issues for discussion. The ALJ and the parties discussed the potential need to extend the current April 7, 2017 deadline for initial pre-filed testimony and exhibits, which most parties agreed was optimistic, but decided to leave the current deadline as is.