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Direct Energy Asks PSC To Clarify That Required Environmental Disclosure Labels Can be Sent Via Email

April 27, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Direct Energy Business Marketing LLC petitioned the Maryland PSC to clarify the PSC's June 15, 2000 Order regarding the disclosure of the fuel sources of electricity that is sold, and the environmental characteristics of such electricity, to Maryland consumers.

Direct Energy requested that the Commission clarify that this 2000 Order permits electricity suppliers to provide consumers today with the subject information via either email and/or U.S. mail, consistent with applicable Maryland law. If the customer does not have an email address, then the supplier would be required to send the information via U.S. Mail

In Order No. 76241 in Case No. 8738 (June 15, 2000), the PSC ruled that, per Public Utilities §7-505(b)(4), suppliers shall provide to customers, every six months, a uniform, common set of information about the fuel mix of the electricity purchased by customers and the emissions on a pound per megawatt-hour basis of pollutants identified by the Commission, or disclosure of regional average data

"Disclosure should be made in the form of labels, approved by the Commission, that are disseminated by mail along with customer bills," the PSC had said in such order

Direct Energy said, "[i]t is noteworthy that the 2000 Order stated that the Reports should be 'disseminated by mail'; it did not require that the Reports be disseminated by 'U.S. mail'. It could reasonably be argued that dissemination of the Reports to customers by email currently complies with the 'by mail' requirement in this Order."

"Direct Energy presents the following in support of this request for clarification: (1) electricity regulations have materially changed during the past 17 years since the Order in Case No. 8738 was issued; almost all electricity suppliers now use utility consolidated billing instead of mailing monthly bills to customers; (ii) there are significant cost savings for email delivery of the Reports (savings which ultimately benefit consumers); (iii) consumer use of email has dramatically increased during the past 17 years and is virtually universal among electricity customers; (iv) consumers already have access to the information in the Reports because it is being posted on electricity supplier websites; and (v) there are significant burdens imposed if electricity suppliers are required to obtain express written consent from every consumer in order to comply with the applicable electronic communications statutes," Direct Energy said

"In 2000, when the subject Order in Case No. 8738 was issued, electricity retail choice rules and regulations had not yet been issued. In 2000, the incumbent electricity suppliers could reasonable comply with an obligation to disseminate the subject Reports to consumers 'along with customer bills.' Today, however, almost all electricity suppliers comply with Maryland’s regulations regarding utility consolidated billing procedures. As a result, an electricity customer most often 'will receive only one bill from the utility listing the prices of the distribution and generation separately.' The requirement mentioned in 2000 that the Reports be mailed individually to each customer with bills is no longer a reasonable requirement; it imposes discriminatory obligations on electricity suppliers in comparison with incumbent distribution utilities which regularly send paper bills to their customers," Direct Energy said

Direct Energy said the additional costs to suppliers from mailing the information, "are especially burdensome given the necessity for electricity suppliers to remain competitive with the default service rates provided by distribution utilities (and these costs greatly exceed any benefits that consumers would receive if the information was delivered to them in a paper format)."

Direct Energy noted that, "[t]he relevant state and federal electronic communications statutes provide that electronic communications cannot automatically replace paper transactions. These statutes require that electricity suppliers must take burdensome steps to obtain appropriate consent from each of their individual customers to replace paper communications with email. For example, Section 21-102(f) of the Maryland Uniform Electronic Transactions Act requires, in part, that consumers receive the protections that are found in the federal Electronic Signatures in Global and National Commerce Act ('ESGNC'). Subsection (c) of the ESGNC imposes extensive requirements to obtain the written consent of consumers before being able to provide electronic records to them (instead of providing paper copies), including: '(A) demonstration that the consumer 'has affirmatively consented to such use and has not withdrawn such consent'; (B) prior to consenting, the consumer must be provided with 'a clear and conspicuous statement . . . informing the consumer of (i) any right or option of the consumer to have the record provided or made available on paper . . . (iii) describing the procedures the consumer must use to withdraw consent . . . and (iv) informing the consumer [how to obtain a paper copy of an electronic record].' See, 15 U.S.C. §7001(c)."

"Thus, it would be prohibitively expensive for electricity suppliers to individually obtain the written consent of their customers in order to provide the Reports by email, if the Commission determined that the requirements in Public Utilities §7-505(b)(4) could not be met either through emails and/or by paper copies sent via U.S. mail," Direct Energy said

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