Pennsylvania PUC Denies Two Petitions To Allow Additional Channels Of In-Person Marketing, Including Non-Residential Marketing

August 27, 2020

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The Pennsylvania PUC today denied a petition from Direct Energy which had sought authorization for the resumption of various in-person marketing activities to non-residential customers, and also denied rehearing of its prior denial of a separate petition from IGS Energy which had sought authorization for the resumption of various in-person marketing activities

As first reported by EnergyChoiceMatters.com (see details here), Direct Energy had sought an order authorizing the resumption of in-person sales and marketing activities to commercial, industrial and governmental customers operating businesses that are open as a result of the Governor’s directives regarding the yellow and green phases

The PUC ruled that Direct Energy did not present compelling reasons for the modification of the PUC's prior order prohibiting in-person marketing, except for in-store marketing at retail establishments

"While Direct Energy notes some movement toward reopening businesses in Pennsylvania, we do not agree that current circumstances warrant amendment to the moratorium on in-person sales and marketing activities as it pertains to activities at commercial, industrial, and government businesses open as a result of the Governor’s directives. The Commission addressed the portions of the moratorium on door-to-door, public event, and in-person sales and marking activities that remain in place as recently as our July 16, 2020 Order. As we stated therein, the moratorium remains necessary to protect customers and supplier employees by minimizing social contact in response to the COVID-19 pandemic. We do not find reason to alter this determination here," the PUC said

"In our July 16, 2020 Order, we noted that, while all counties have moved to the green phase of the Governor’s reopening plan, a number of restrictions remain in place pursuant to the directives of the Governor and the Pennsylvania Secretary of Health. For example, in the green phase, 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," the PUC said

"With regard to the directive encouraging continued telework, we explained, inter alia, that a number of alternatives to in-person sales and marketing activities are available to suppliers, including outbound telemarketing, inbound calls, website advertising and enrollment, media advertising, PaPowerSwitch, and utility Customer Referral Programs. We found that sales and marketing activities can be conducted electronically and that the use of remote means to conduct such business is consistent with the Governor’s reopening plan," the PUC said

"Further, we explained that recent circumstances weighed in favor of continuation of the moratorium. For example, we noted that, 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.' In addition, we recognized that certain Pennsylvania counties, including Allegheny County and Philadelphia County, halted portions of the reopening process due to rising numbers of COVID-19 cases. We found that these developments supported continued efforts to minimize social contact to reduce the spread of COVID-19. Therefore, we determined that the portions of the Commission’s March 16, 2020 Emergency Order that remain in place continued to be necessary to ensure the protection of customers and supplier employees," the PUC said

"Likewise, here, we find that recent developments weigh in favor of a continuation of the moratorium. On July 15, 2020, the Governor announced statewide mitigation efforts in response to an 'unsettling climb in new COVID-19 cases.' The Governor issued an Order Directing Targeted Mitigation Measures (Mitigation Order) noting that 'there remains an urgent need to further efforts to slow this new increase in cases.' The Mitigation Order requires all businesses to 'conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.' The Mitigation Order further provides that employees may only conduct in-person operations where 'telework is not possible,'" the PUC said

"Therefore, contrary to Direct Energy’s claims, suppliers are not permitted to engage in in-person sales and marketing activities at commercial, industrial, and governmental businesses under the Governor’s directives. The Mitigation Order requires telework, unless telework is not feasible. As we found in the July 16, 2020 Order, suppliers can conduct sales and marketing activities, especially by-appointment sales and marketing activities, electronically. Accordingly, suppliers can engage in sales and marketing activities with commercial, industrial, and governmental businesses wholly by remote means. Suppliers can schedule meetings with commercial, industrial, or governmental mangers, employees, or representatives via telephone or through the use of various video meeting platforms. Thus, complying with the Mitigation Order means that suppliers will conduct the sales and marketing activities identified by Direct Energy remotely. Further, we note that, due to the telework directives of the Mitigation Order, many business managers, employees, and representatives are likely off-site and suppliers may be more successful in engaging with them by electronic means," the PUC said

"In light of current circumstances and the Governor’s Mitigation Order, we find that it is not reasonable or appropriate to modify the moratorium on in-person sales and marketing activities at commercial, industrial, and governmental businesses. Therefore, at this time, the Commission’s March 16, 2020 Emergency Order, as modified by the June 4, 2020 Order, will remain 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 for the moratorium based on the situation surrounding the COVID-19 pandemic as well as the Governor’s reopening plan and other relevant directives. The Commission will act to lift appropriate provisions of the moratorium when the situation permits," the PUC said

"[T]he 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," the PUC ruled

IGS Rehearing Petition

Separately, the PUC denied IGS's petition for rehearing of IGS's original petition for authorization of various in-person marketing, including residential door-to-door marketing

See background on IGS's petition here

The PUC ruled that, "Upon review of IGS’s Petition, we find that IGS has not presented compelling reasons for the reconsideration of a final Commission order ... IGS has not raised new and novel arguments or considerations which have been overlooked or not addressed by the Commission."

With respect to arguments that by-appointment in-person sales are appropriate, the PUC said, "We observed that IGS’s door-to-door process primarily involved electronic components and, therefore, did not require in-person interaction. We found that by-appointment sales and marketing activities can likewise be conducted electronically and concluded that the use of remote means to conduct such business is consistent with the Governor’s reopening plan encouraging continued telework. July 16, 2020 Order at 14. We note here that the same is true of door-to-door sales and marketing by-appointment."

With regard to IGS's argument that its home energy consultants (HECs) conducting door-to-door sales would have masks available to be provided to customers, the PUC noted that, in response to a recent increase in COVID-19 cases, the Secretary of Health issued an order requiring masks to be worn 'whenever anyone leaves home.' "[G]iven that the public is required to wear masks when leaving their home, customers may not see a need to wear masks at their doorstep. HECs offering masks to customers does not alter our analysis here," the PUC said

Citing the Governor's Mitigation Order (noted above), the PUC said, "contrary to IGS’s claims, suppliers are not permitted to engage in door-to-door and by-appointment sales and marketing activities under the Governor’s directives. The Mitigation Order requires telework, unless telework is not feasible. As we found in the July 16, 2020 Order, suppliers can conduct sales and marketing activities, especially by-appointment sales and marketing activities, electronically, including via telephone or the use of video meeting platforms. Thus, complying with the Mitigation Order means that suppliers will conduct the sales and marketing activities remotely."

"We decline to modify our July 16, 2020 Order to allow door-to-door and by-appointment in-person sales and marketing activities. The moratorium on door-to-door, public event, and in-person sales and marking activities remains necessary to protect customers and supplier employees by minimizing social contact in response to the COVID-19 pandemic. At this time, the Commission’s March 16, 2020 Emergency Order, as modified by the June 4, 2020 Order, will remain in place during the pendency of the Proclamation of Disaster Emergency, or unless otherwise ordered by the Commission," the PUC said

Docket M-2020-3019254

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