Pennsylvania PUC Denies Petitions From Retail Suppliers For Resumption Of Door-to-Door, Public Event, By Appointment In-Person Marketing

Notes Alleged Health & Safety Violations By Retail Supplier In State Which Recently Allowed Resumption Of Door-to-Door Marketing

July 16, 2020

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The Pennsylvania PUC denied separate petitions from StateWise Energy Pennsylvania LLC & SFE Energy Pennsylvania, Inc., and also Interstate Gas Supply, Inc., that had sought varying authorization to resume door-to-door marketing, public event marketing, and/or by-appointment in-person marketing under various conditions

The PUC ordered that, "the provisions of the Emergency Order issued March 16, 2020, as modified by the Order entered June 4, 2020, prohibiting door-to-door, public event, and in-person sales and marketing activities by electric generation suppliers and natural gas suppliers under the Commission’s jurisdiction remain in effect during the pendency of the Proclamation of Disaster Emergency, or unless otherwise directed by the Commission."

To date, the PUC has only authorized in-person marketing by suppliers in retail establishments (in-store marketing). All other forms of in-person marketing, as defined by the March 16, 2020 and June 4, 2020 orders, remain prohibited

See background on the petitions from the suppliers for resumption of various in-person marketing in these prior stories linked below:

• SFE/Statewise

• IGS Energy

The PUC did not, in its instant order, address a later petition from Direct Energy concerning a sought resumption of in-person marketing to business customers (see story here), but the broad reasoning adopted in the PUC's instant order suggests that Direct Energy's petition would be denied absent changed circumstances with respect to COVID-19 in the future, as the PUC specifically noted that by-appointment marketing (part of Direct's petition) can occur virtually (remote, electronic) and thus need not be in-person

The PUC generally found that the various safety and preventative measures proposed in the SFE/Statewise and IGS petitions did not outweigh continued health risks, and noted that there are numerous other marketing channels available to suppliers, including, as cited by the PUC, outbound telemarketing, inbound calls, website advertising and enrollment, media advertising, PaPowerSwitch, utility Customer Referral Programs, and 'virtual' (remote, electronic) by-appointment marketing

"Upon review of the Petitions for Rescission, we find that StateWise, SFE, and IGS have not presented compelling reasons for partial recession of a final Commission order under Duick. While StateWise, SFE, and IGS argue that circumstances have changed since the issuance and ratification of the March 16, 2020 Emergency Order, we do not agree that the changes identified warrant rescission of the portions of the Emergency Order establishing a moratorium on door-to-door, public event, and in-person sales and marketing activities. As we stated in our June 4, 2020 Order, the moratorium on all other door-to-door, public event, and in-person sales and marketing activities remains necessary to protect customers and supplier employees by minimizing social contact in response to the COVID-19 pandemic. The circumstances have not changed sufficiently since the entry of our June 4, 2020 Order to alter the determination we reached therein," the PUC said

"In our June 4, 2020 Order, we noted that the majority of Pennsylvania counties have moved to the yellow and green phases of the Governor’s reopening plan. We note that, as of July 3, 2020, all counties have moved to the green phase and at least two counties have implemented additional restrictions despite being in the green phase. Importantly, although the yellow and green phases allow for the resumption of certain activities, a number of restrictions remain in place pursuant to the directives of the Governor and the Pennsylvania Secretary of Health. In the green phase, for example, continued telework is strongly encouraged, businesses with in-person operations must operate at a reduced capacity, masks are required in most settings, large gatherings are prohibited, and social distancing is required. See surpa, n. 7. At this juncture, we find that the portions of the Commission’s March 16, 2020 Emergency Order that remain in place continue to be necessary to ensure the protection of customers and supplier employees by minimizing social contact in response to the COVID-19 pandemic," the PUC said

"We agree with the OCA that the measures proposed by StateWise, SFE, and IGS are not adequate to mitigate the risks to the public and supplier employees of contracting COVID-19 associated with resuming door-to-door, public event, and in-person sales and marketing activities at this time. For instance, although StateWise, SFE, and IGS propose to require supplier employees to wear masks for door-to-door sales and marketing activities, suppliers cannot ensure that customers will wear masks for the protection of their employees. In fact, IGS’s door-to-door training video displays a customer that is not wearing a mask. Given that the public is required to wear masks when leaving their home, customers may not see a need to wear masks at their doorstep although they are in contact with someone that is not a member of their household, thus placing supplier employees at risk. See infra, n. 8. We also note that supplier employees could approach the homes of customers who are COVID-19 positive and self-isolating, and there is no reasonable way to protect supplier employees from that risk without violating the customers’ rights to privacy. Additionally, exchanging an iPad or other electronic device for enrollment purposes, as StateWise, SFE, and IGS suggest, will likely require supplier employees to approach customers such that social distancing requirements will be compromised," the PUC said

"We also note, as the OCA stated, that there are a number of alternatives to in-person sales and marketing activities available to suppliers, including outbound telemarketing, inbound calls, website advertising and enrollment, media advertising, PaPowerSwitch, and utility Customer Referral Programs. Even in the in-person processes proposed by StateWise, SFE, and IGS, the majority of the process is conducted electronically, thereby nullifying the need for in-person interaction. We find that by-appointment sales and marketing activities can likewise be conducted electronically. The use of remote, electronic means to conduct business is consistent with the Governor’s reopening plan, which provides that continued telework is strongly encouraged in the green phase. See supra, n. 7," the PUC said

"Further, we note that recent changes in circumstances weigh in favor of the continuation of the moratorium on door-to-door, public event, and in-person sales and marketing activities, rather than rescission of the moratorium. Since the entry of our June 4, 2020 Order, the Governor renewed the Proclamation of Disaster Emergency for an additional period of ninety (90) days, noting that 'the COVID-19 pandemic continues to be of such magnitude or severity that emergency action is necessary to protect the health, safety and welfare of affected citizens in Pennsylvania.' See supra, n. 2. Also, in response to a recent increase in COVID-19 cases in Pennsylvania, on July 1, 2020, the Secretary of Health issued an expanded mask-wearing order, requiring masks to be worn 'whenever anyone leaves home.' In addition, certain Pennsylvania counties in the green phase, including Allegheny County and Philadelphia County, have halted portions of the reopening process due to rising numbers of COVID-19 cases. These developments support continued efforts to minimize social contact to reduce the spread of COVID-19," the PUC said

"Finally, with respect to other states’ actions, we note that, while the Public Utilities Commission of Ohio (PUCO) has taken action to allow door-to-door sales and marketing activities to resume during the COVID-19 pandemic, the PUCO is currently investigating violations of its order allowing suppliers to resume door-to-door marketing. Notably, the violations involve SFE Energy Ohio, Inc., an affiliate of StateWise Energy Ohio, LLC, operating under the parent company SFE Energy, Inc. See supra, n. 11. The violations involve customer and utility reports of supplier agents not wearing a mask, not leaving the customer’s doorstep when asked, and making false and misleading statements, including that customer utility bills may increase due to the coronavirus and COVID-19. Id. While there has been no final finding of a violation, these reports raise a question as to whether the controls StateWise and SFE propose are being adequately executed such that we can find them credible and reasonable," the PUC said

See background on the SFE matter in Ohio here

"We find that the risk of harm is too great to allow jurisdictional suppliers to resume door-to-door, public event, and in-person sales and marketing activities at this time. Therefore, the March 16, 2020 Emergency Order establishing a moratorium on door-to-door, public event, and in-person sales and marketing activities, as modified by the June 4, 2020 Order, remains in place during the pendency of the Proclamation of Disaster Emergency, or unless otherwise ordered by the Commission. The Commission will continue to reevaluate the need to modify the moratorium based on the situation surrounding the COVID-19 pandemic and the status of the Governor’s reopening plan," the PUC said

Docket M-2020-3019254

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