Updated: Pennsylvania PUC Allows All Retail Suppliers To Conduct In-Person Marketing At Outdoor Events, Subject To Conditions

December 2, 2020

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Updated: 1:07 p.m

The Pennsylvania PUC issued an order providing that, "The moratorium on in-person sales and marketing activities for all jurisdictional suppliers is lifted as it pertains to activities at outdoor public events held in accordance with orders and directives issued by the Governor and the Secretary of Health."

Suppliers engaging in in-person sales and marketing activities at outdoor public events must comply with all relevant orders and guidance of the Governor and Secretary of Health, the PUC directed.

Suppliers are also required to report their intent to resume in-person sales and marketing activities at outdoor public events to OCMO and BCS as set forth below.

The Order does not impact the moratorium on all other door-to-door, public event or in-person sales and marketing activities (or prior modifications to thereto, such as allowing in-person marketing at retail stores).

In discussing the order, the PUC noted that, "We note that, while the most recent occupancy limit for outdoor gatherings represents a decrease from the limit identified in the October 6, 2020 amendment, the new limit remains higher than the previous limit of 250 people. The new limit for outdoor gatherings is also much more permissive than the limit for indoor gatherings. Therefore, in light of the change in the occupancy limit for outdoor gatherings, we agree that it is appropriate to lift the moratorium on in-person sales and marketing activities for all jurisdictional suppliers as it pertains to activities at outdoor public events held in accordance with orders and directives issued by the Governor and the Secretary of Health."

Specifically, the PUC noted regarding the latest outdoor restrictions that, "on November 23, 2020, the Governor issued an Order for Mitigation, Enforcement, and Immunity Protections. The Order continues to direct venues to use established occupancy limits to calculate the maximum occupancy for outdoor gatherings, but reduces the limit to up to 2,500 people under certain circumstances. The Order is similar to the October 6, 2020 amendment in that it requires venues to comply with an Updated Order of the Secretary of Health requiring Universal Face Coverings and adhere to social distancing and best practices directives. The Secretary of Health issued a comparable Order for Mitigation and Enforcement on November 23, 2020, and both Orders became effective on November 27, 2020."

"Importantly, we note that certain restrictions remain applicable to outdoor gatherings. Therefore, suppliers engaging in in-person sales and marketing activities at outdoor public events must comply with all relevant orders and guidance of the Governor and the Secretary of Health, including, but not limited to, the Governor’s Order for Mitigation, Enforcement, and Immunity Protections and the Secretary of Health’s Order for Mitigation and Enforcement as well as any guidance referenced therein and subsequently issued. Suppliers must also continue to adhere to Commission regulations including, marketing and sales practices regulations. See 52 Pa. Code § 111.1-111.14," the PUC said

"Additionally, we agree with NRG that suppliers should report to the Commission their intent to resume in-person sales and marketing activities at outdoor public events and we agree with the OCA that this report should provide the name, date, time, and location of the event," the PUC said

The requirement for suppliers to report the resumption of in-person sales and marketing activities at outdoor public events will remain in place until it is rescinded by the Commission at the conclusion of the present emergency.

"Reports should be provided to OCMO as well as BCS at RA-OCMO@pa.gov and RA-PCDOORTODOOR@pa.gov before commencing such activities. Any reports containing confidential information should be made consistent with the Commission’s March 20, 2020 Emergency Order, and the July 27, 2020 Secretarial Letter supplementing that Emergency Order. See Suspension of Regulatory and Statutory Deadlines; Modification to Filing and Service Requirements, Docket No. M-2020-3019262 (Emergency Order ratified March 26, 2020); Modification to Filing and Service Requirements Emergency Order, Docket No. M-2020-3019262 (Secretarial Letter issued July 27, 2020)," the PUC said

"Further, although we will allow the resumption of in-person sales and marketing activities at outdoor public events subject to the conditions herein, suppliers should use remote means where possible. We encourage the use of other sales and marketing activities, including outbound telemarketing, inbound calls, website advertising and enrollment, media advertising, PaPowerSwitch, and utility Customer Referral Programs," the PUC said

"Finally, we note that this Order does not impact the portion of the March 16, 2020 Emergency Order establishing a moratorium on all other door-to-door, public event, and in-person sales and marketing activities, as modified by our June 4, 2020 Order, which 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 on all other door-to-door, public event, and in-person sales and marketing activities as appropriate," the PUC said

Earlier:

** Note (12/3/20, 11:10 a.m. ET): This is a breaking news alert. Check back for updated details once available. You may need to refresh your page to see updated information

The Pennsylvania PUC granted certain relief in response to a petition from NRG Energy, Inc. for Partial Rescission of the PUC's March 16, 2020 Emergency Order prohibiting door to door and other in-person retail energy marketing during the pandemic.

NRG had been seeking authority to conduct in-person sales and marketing at outdoor public events that are held in accordance with orders and directives issued by Governor Wolf and/or the Secretary of Health.

The precise nature of the relief granted by the PUC is not immediately clear (e.g. it is not clear whether the PUC granted NRG's petition in full, or in part, and with any additional conditions)

A written order has not yet been issued.

However, the PUC did grant some form of relief which allows some form of in-person marketing at outdoor events, based on discussion at the meeting, and the statements from Vice Chairman David Sweet, who dissented from the decision

Sweet said that in the time since NRG filed its petition in late October, there has been a "significant" tightening of restrictions for outdoor events by the Wolf administration. Sweet noted that even tighter restrictions are in place in Philadelphia.

Citing an increase in COVID-19 cases, Sweet said that there is, "no logical reason," to relax the PUC's prior prohibition on in-person marketing, even at outdoor events

As exclusively first reported by EnergyChoiceMatters.com, the PUC has to date only allowed in-store (retail storefronts, etc) in-person sales to resume. The PUC has rejected prior supplier petitions to allow door to door or by-appointment in-person marketing

NRG sought relief from the portion of the Emergency Order that bans in person sales and marketing by energy suppliers at outdoor public events that are held in accordance with orders and directives issued by Governor Wolf and/or the Secretary of Health.

"As public health issues are within the domain of the Governor and the Secretary of Health, and energy suppliers are permitted under their directives to conduct in-person sales at public outdoor events, the Commission should follow suit," NRG had said in its petition

In its petition, in addition to following health directives from the governor and state health agencies, NRG had said that suppliers engaging in outdoor in-person marketing should be required to follow best practices that include the following:

• Steps to ensure sales agent and customer safety, such as temperature checks, use of facemasks, use of disposable stylus pens, hand sanitizer and disinfectant wipes;

• Steps to maintain six-foot social distancing requirements, including training and designations of such space; and

• Use of a 'contactless' enrollment process whenever possible.

Docket M-2020-3019254

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