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Regulator Increases Fine On Retail Supplier

October 25, 2018

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Copyright 2010-17
Reporting by Paul Ring •

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The Pennsylvania PUC adopted a motion today (10/25) which increases a proposed fine on Choice Energy, LLC for what the PUC Vice Chair Andrew Place said was, "abusive telemarketing and intentional misconduct."

The PUC issued a fine of $5,000.

An initial decision from an ALJ would have imposed a fine of $1,000

A statement from Choice Energy, LLC is below

The case largely revolves around the complainant's multiple requests to be removed from Choice Energy, LLC's telemarketing list and Choice's failure to do so. However, Place in his motion said that the complainant also alleged that the agent did not properly identify themself during the call

The ALJ had concluded that Choice Energy, LLC's failure to comply with complainant's request and immediately stop telemarketing calls to his home telephone and place him on a do not call list is not a serious offense. "It appears that it was more of an administrative or technical error, rather than willful fraud or misrepresentation on the part of the Respondent. As such, a lower civil penalty is warranted," the ALJ had said. The ALJ did note, however, that, "The agent also failed to clearly identify itself and Choice and their relationship to electric distribution company. When an agent acting on behalf of Choice violates a Commission regulation, Choice is responsible. Such conduct is intentional and supports imposing a higher civil penalty."

The ALJ had proposed the $1,000 penalty as follows, "This penalty comprises two $500 penalties – one for each month of November 2016 and December 2016 where record evidence demonstrates that Mr. Krain received the misleading telephone calls and Choice failed to stop the marketing calls and place [complainant's] telephone number on a do not call list."

In the adopted motion from Vice Chair Place, Place wrote that a higher fine was warranted because, "The Complainant indicates that he received dozens of calls over a two-month period receiving at times multiple calls per day from Choice Energy. He indicated that on at least three occasions he spoke with a supervisor and asked to be put on the Company's do not call list. This is in addition to his many requests to be removed from the telemarketing list where he did not request to speak to a supervisor. He was assured this had been completed. The calls however continued. At one point one of the supervisors threatened that they were going to 'call him repeatedly, all night long.' The Complainant also indicated that he blocked the number from which Choice Energy was calling in an attempt to stop the calls. However, the Complainant indicated that calls began coming from different numbers, all identified as Choice Energy LLC, by his Caller ID and later confirmed as such by representatives of the Company. The Complainant further explained that callers did not identify themselves and led him to believe they worked for PECO which he would have believed had it not been for the Caller ID indicating that the caller was Choice Energy LLC."

In his motion, Place wrote, "The record evidence shows that Choice Energy did not properly identify itself during at least the initial phone call which is a violation of the Commission's regulations at 52 Pa. Code §111.10(b). In addition, the record evidence demonstrates that Choice Energy continued this violation by placing numerous calls to the Complainant during the months of November and December 2016 in which they did not properly identify the Company and its relationship to the electric distribution company clearly in violation of the Commission's regulations. The record clearly demonstrates that Choice Energy engaged in abusive telemarketing and intentional misconduct by misrepresenting itself to the Complainant on numerous occasions over a period of two months which warrants a higher penalty in this case."

The PUC increased the fine to $5,000

Choice Energy, LLC provided the following statement to

Based on the Company’s investigation, it did not violate any laws or regulations as the customer’s phone numbers were not on the Federal Do-Not-Call list. Upon receipt of the complaint the Company immediately put the customer’s phone numbers on the Company’s internal do-not-call list, and no telemarketing calls have been made by the Company to the customer since his complaint was received. The Company has offered to engage in settlement discussions with the customer, but the customer refused to participate in any reasonable settlement discussions. For a procedural oversight, the Company was prevented from presenting its defense at the hearing by the ALJ. The Company also categorically denies that its agent made any threat to call the customer all night long in retaliation, or any of its agents represented themselves as from PECO. With regard to the proposed fine by the PA PUC, management has decided not to further contest the fine in the interest of continued good working relationship with PA PUC and being able to focus 100% of management’s attention on customer service going forward.

Concerning the specific violations, an electric generation supplier and its agents shall comply with regulations that govern marketing, consumer protection and telemarketing sales including consumer protection regulations. 52 Pa.Code § 111.10(a). An electric generation supplier and its agents shall comply with the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C.A. § § 6101—6108) and 16 CFR Part 310 (relating to telemarketing sales rule). 52 Pa.Code § 111.10(a)(3). An agent who contacts customers by telephone shall, after greeting the customer, immediately identify himself by name, identify the supplier the agent represents and the reason for the telephone call. The agent shall also state that he is not working for and is independent of the local distribution company or another supplier. 52 Pa.Code § 111.10(b).

The ALJ had found, and the PUC adopted the finding, that the complainant had met his burden of demonstrating that Choice Energy, LLC violated the Commission’s regulations related to its telemarketing practices, citing 52 Pa.Code § 111.10(a)(3); 52 Pa.Code § 111.10(b); 16 C.F.R. § 310.4(b)(1)(i); 16 C.F.R. § 310.4(b)(1)(ii).

Case C-2016-2581006

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