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Shock: People's Counsel (Not Maryland) Enforcing Own Interpretation Requiring Written Signature For Telephonic Sales, In Addressing Complaints

May 10, 2017

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

In addressing customer complaints, the District of Columbia Office of People's Counsel has interpreted the District's regulations as requiring a signature for telephonic retail electric sales, prompting Clearview Electric to file a petition with the D.C. PSC to clarify whether a written signature is required for telephonic sales to be valid.

In an email communication to Clearview, an OPC Staffer, while acknowledging that an enrollment may be "verified" telephonically, cited the requirement under the Consumer Bill of Rights (CBOR) (15 D.C.M.R. § 327.1 et seq.) for the supplier to send a "written contract" to the customers. OPC then hangs its argument on Section 327.25 which states, "A written Contract requires a written signature of the Customer."

In its petition with the PSC, Clearview called OPC's interpretation inconsistent with a "plain reading" of CBOR Section 327.1 et seq.

Under the CBOR, Clearview said that, "PSC rules provide for three (3) separate and distinct ways in which a consumer may enter into an agreement with a supplier: '(a) Over the telephone; (b) Internet and other technological means; and (c) A written Contract.'

"CBOR 327.21, which concerns the requirements for Telephonic contracts and enrollment, wholly refutes the OPC’s assertion that a signed, written contract is required to effectuate a consumer’s choice. CBOR Section 327.21 provides that: An Energy Supplier may not transmit an Enrollment transaction to a Natural Gas or Electric Utility unless and until the Energy Supplier obtains either a positive third-party verification of the Customer’s intent to Contract or electronically records the entire conversation with the Customer on which the Contract is based," Clearview said

"This rule draws a bright line, prohibiting suppliers from transmitting an enrollment transaction to the utility 'unless and until' the supplier obtains either a TPV or an electronic recording of the conversation. Significantly, CBOR Section 327.21 does not condition transmitting an enrollment to the utility upon a customer signing a written contract," Clearview said

In contrast, Clearview said that CBOR Section 327.25, which provides that, "[a] written Contract requires a written signature of the Customer," is, "clearly applicable solely to the 'written Contract' enrollment method contemplated in CBOR Section 327.14, as it is located directly between the requirements concerning telephone and technological contracting."

"The OPC has repeatedly, and wrongly, asserted that this single sentence, without any additional context, should be read to require all customer contracts for supply service to contain a written signature to be valid, regardless of the: (i) method of enrollment; or (ii) pre-existence of a valid and binding agreement demonstrating the customer’s intent to enter into a contract for supply service – memorialized as an electronic enrollment or TPV. In fact, upon examining CBOR Sections 327.18-327.34, which govern the three distinct methods of enrollment, it is clear that the reference to a signed written contract is limited to only one method of contracting and enrollment -- written Contract, and not currently required for telephonic and electronic enrollment methods," Clearview said

Clearview cited a presentation published by the PSC for a supplier workshop as supporting the interpretation that a signed contract is not needed for telephonic enrollments. In such presentation, the PSC stated that, "Enrollment transactions can be transmitted within 5 business days of providing a complete written/electronic Contract provided the Supplier obtains a written signature, an electronic signature (24 hours to acknowledge receipt) or a positive verification from an Independent TPV/electronic recording." [emphasis by Clearview]

"Here, the PSC once again unequivocally recognizes that there are three types of customer enrollment, each with a distinct form of verifying enrollment: (1) a signed, written contract for 'written Contract' enrollments; (2) an electronic signature for electronic enrollments; or (3) an independent TPV or electronic recording for telephonic contracting. The inclusion of the word 'or' lends further authority to this interpretation," Clearview said

"Finally, the OPC’s own Petition of the Office of People’s Counsel for the District of Columbia to Initiate a Rulemaking Proceeding to Amend the Utility Consumer Bill of Rights ('Petition'), filed in this docket on February 21, 2017, contradicts its staff person’s (Mr. Jones) current interpretation of the relevant regulations. In the Petition, the OPC has proposed requiring a 'wet signature' for telephonic contracts at proposed CBOR Section 327.41(f)(1). The OPC proposes this requirement as a new rule; notably, it does not reference the inclusion of this proposal for the purpose of clarifying existing policy or rules. Significantly, the Petition does not propose requiring wet signatures for electronic enrollments, despite the OPC’s current insistence that a signed written requirement is currently required for this method of enrollment," Clearview said

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