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Retail Suppliers Oppose "Unprecedented" Recording Process For Entire Sales Interaction Contained In Consumer Advocates' Straw Proposal

Suppliers Support Requiring TPV For Door-to-Door Sales, Any Sale From Outgoing Telesales Call

September 24, 2019

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Copyright 2010-19
Reporting by Paul Ring •

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A group of retail electric suppliers (supplier working group, or SWG) have filed comments opposing the "unprecedented" proposed door-to-door and telesales recording and retention requirements contained in a straw proposal from consumer advocates in Massachusetts

As exclusively first reported by, Staff of the DPU has already proposed that all conversation during door-to-door marketing should be recorded, and that all telesale calls should be recorded in their entirety.

The consumer advocates made a similar recommendation in a straw proposal for retail supplier oversight of third-party agents (story here)

Commenting on the consumer advocates' straw proposal and its recording and retention requirements for the sales process, the supplier working group said, "The proposed door-to-door and telesales recording and retention requirements, individually and collectively, are unnecessary, unreasonable, and unprecedented among restructured states, grossly burdensome in terms of costs and time for both suppliers and customers, and fundamentally unfair in relation to other companies subject to the jurisdiction of the Department."

"For instance, most or all of these extreme recording obligations, including the recording option for door-to-door sales, have not been adopted in other jurisdictions. Further, these new recording and retention requirements impose obligations to record sales conversations and retain associated recordings that neither the Department nor the Department of Telecommunications and Cable ('DTC'), which oversees the telecommunications and cable industries in Massachusetts, has imposed on other non-utility competitive providers, such as competitive local exchange carriers, cable television companies, and registered natural gas sellers," the suppliers said

"Moreover, these requirements are both unnecessary and duplicative of robust consumer protections already available under federal, municipal and additional state law provisions regulating telemarketing and door-to-door marketing. Furthermore, suppliers will incur substantial and disproportionate costs of complying with these many obligations, including equipment costs and associated programming costs, and system development, implementation and testing, data storage, and database management for both door-to-door and telephone sales that will be passed onto consumers in the form of higher prices. In short, the costs and burdens associated with mandatory telesales and door-to-door sales recordings and retention grossly outweigh the potential value of such efforts, especially given the other robust protections afforded to Massachusetts consumers under other applicable state, federal and local laws. Thus, the Department should reject these proposed requirements," the suppliers said

"Finally, the mandatory recording of sales transactions also presents potential privacy concerns. Meaningful consent to such recordings, however, can only be obtained after the customer has been educated about the nature of the transaction being offered and has agreed to allow recording as a condition of moving forward and transacting with the supplier. As proposed, however, the Consumer Advocate Stakeholders' proposed changes would require the suppliers to engage in recording even before the customer or potential customer can be told who is making the recording, why such recordings are required by the Commonwealth, and otherwise be meaningfully informed about the purpose of the interaction and the recording of it. The Supplier Working Group believes that customers and potential customers are due respect for their own privacy, that suppliers should not record conversations unless and until customers grant their informed consent, and that such consent is simply not practicable until the conversation reaches the TPV stage. The significant privacy implications associated with the proposed sales recording will almost certainly dissuade some consumers from participating in recorded sales transactions and resulting in the loss of the opportunity of such consumers to choose an energy supply product that best suits their needs. Conversely, by the time that a TPV takes place, the customer will have been told that a recording will occur and has been fully informed about the nature of the transaction and, therefore, can meaningfully consent to the recording of the TPV call. Thus, a requirement that suppliers record and retain TPV calls is more appropriate," the suppliers said

The suppliers opposed various proposals from the consumer advocates concerning the content and nature of third-party verifications (TPV).

However, the suppliers did state that, "the Supplier Working Group would support a requirement that all outgoing telemarketing calls (i.e., telesales calls placed by a supplier or its agent to a prospective customer) that produce a sale and all door-to-door sales interactions resulting in a sale be confirmed by a TPV."

The suppliers suggested that the DPU also address additional TPV issues

"For example, the Department may wish to promote the use of an electronic TPV process, which relies on technology, instead of a live operator, to capture the customer's affirmative choice. Use of such technology could obviate concerns about human error and heighten stakeholders' assurance that TPVs are independent," the suppliers said

The suppliers expressed various concerns with the consumer advocates' straw proposal related to the "spoofing" of caller ID and calls to customers on the "Do Not Call" list, including voiding and refunding customer contracts for violations.

The suppliers agreed that, "a telemarketer's deliberately falsifying the information transmitted to a customer's caller identification system ('Caller ID') display to disguise his or her identity is an egregious practice that should not be tolerated"

"Despite reasonable efforts made by suppliers to provide accurate information to their local telephone service provider, the local telephone service provider may not actually display the correct information on the customers Caller ID. This can be caused by a myriad of reasons, including but not limited to, the local telephone service provider not using an updated database of third-party telephone record information and/or the information contained in that third-party database being incorrect," the suppliers said

Likewise, the suppliers noted that statute permits certain specified calls to customers on the "Do Not Call" list

As such, "suppliers should not be required to report instances of spoofing or 'unsolicited telephonic sales call,'" as sought by the consumer advocates

"First and foremost, Massachusetts law does not provide a basis for the Department's imposition of a mandatory self-reporting requirement. Moreover, these requirements, if adopted, could expose suppliers to near limitless liability. As noted above, whether a particular action constitutes spoofing or an 'unsolicited telephonic sales call' is subject to a myriad of factual and legal analyses. Consequently, suppliers will be inherently subject to liability in the event that a representative disagrees with a supplier's determination that such activities occurred. Similarly, requiring a supplier to report conduct that is ultimately found to be without merit could irreparably damage supplier, vendor, and employee reputations. Second, this proposed requirement, if adopted, would represent a significant departure from how the Department treats all other entities subject to its jurisdiction; many of whom rely in whole or part on third-party agents to deliver services to consumers. In fact, the SWG is not aware of any similar self-reporting requirement applicable to the electric distribution companies, natural gas distribution companies, water companies, or natural gas suppliers. Singling out electric suppliers is unreasonable, discriminatory, and unfair," the suppliers said

"Moreover, suppliers should not be required to automatically void customer contracts resulting from the inaccurate receipt of Caller ID information or resulting from an unsolicited telephonic sales call. Customers ·should be given the choice of how to proceed, including being allowed to terminate any contract resulting from activities and to receive a refund for any amounts paid under the contract. However, such customers should be allowed to remain enrolled on these contracts (without receiving refunds) if they so choose," the suppliers said

D.P.U. 19-07

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