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Retail Suppliers Oppose "Unprecedented" Recording Process For Entire Sales Interaction Contained In Consumer Advocates' Straw Proposal
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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 EnergyChoiceMatters.com, 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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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 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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