Retail Suppliers Seek Immediate End Of Door-to-Door Moratorium In Pennsylvania, Citing State's Broader Full Re-opening

June 21, 2021

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Reporting by Paul Ring • ring@energychoicematters.com

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Retail energy suppliers said in comments to the Pennsylvania PUC that the PUC should adopt an "immediate and complete" termination of the PUC's current in-person sales restrictions

As first reported by EnergyChoiceMatters.com, the PUC issued a tentative order seeking comment on a timeline for the "eventual" lifting of the in-person moratorium and related restrictions (certain in-person sales are allowed as previously reported), and any conditions which should be imposed as part of such termination.

Currently, the PUC permits in-person sales at: (1) retail establishments; (2) public events; and, (3) commercial and industrial businesses that are permitted to be open. However, in-person and door-to-door sales for residential customers continues to remain prohibited

The Retail Energy Supply Association said in comments to the PUC that, "RESA supports an immediate and complete termination of the current in-person sales restrictions given the termination of the Proclamation of Disaster Emergency, the lack of similar restrictions on these sales channels for any other industry, and the move toward resumption of normal pre-pandemic activities."

"As of May 31, 2021, all businesses in Pennsylvania and all events and venues can return to 100% capacity. The current order requiring masks for unvaccinated citizens will remain in place until June 28, 2021, or until 70% of Pennsylvanians over the age of 18 have been fully vaccinated, whichever comes first. And while individuals must still wear masks on planes, trains, and buses as required by CDC guidance, by the end of June, masks will not be required for outdoor activities and will only be required for unvaccinated individuals engaging in indoor activity – but those activities are still permitted. Moreover, On June 10, 2021, the Legislature voted to end the Disaster Proclamation and the Governor signed the legislation on June 11, 2021. This followed passage of voter-approved constitutional amendments which give the Legislature the power to end a disaster declaration and automatically ends any state of emergency declared by the governor after 21 days unless the Legislature extends it," RESA noted

"In short, there no longer appears to be any public health inspired basis for a blanket prohibition on door-to-door or in-person marketing for the energy industry as many other businesses have resumed normal operations. The original premise, to prevent the spread of COVID-19, appears to be moot at this point based upon the above-listed modifications to the mitigation protocols. Moreover, the Commission has well developed and clear regulatory requirements governing the sales and marketing activities of Suppliers. The regulations are very clear about how Suppliers are required to interact with potential customers, process requests to switch supply service, train agents regarding door-to-door activities and Commission requirements, address consumer complaints, and report door-to- door sales activities to the Commission prior to commencement. These regulations, as well as other authority of the Commission, also address Supplier liability and give the Commission broad enforcement powers for any violations of the requirements. Given the lack of any public health inspired basis to continue the status quo and the strong regulatory framework in place setting forth the Commission’s expectations of Suppliers, a continued blanket prohibition on this sales channel is not warranted. Rather, the Commission should rely on its strong regulatory framework in place and exercise enforcement as needed for those Suppliers who do not comply with the well-established requirements," RESA said

In separately filed comments, Energy Harbor similarly said that, "Energy Harbor’s overarching view is that with the Commonwealth’s lifting of all mitigation measures, except masking, on May 31, 2021, the Emergency Order should be rescinded in its entirety as soon as possible."

"Notably, the Commonwealth’s officials in charge of public health and safety, being the Governor and Secretary of Health, joined by the bipartisan Task Force, have determined that no additional measures are necessary at this time. In addition, the General Assembly has ended the Disaster Proclamation. As no justification exists for competitive energy suppliers to be subjected to restrictions on in-person sales and marketing activities that the Commonwealth is not imposing on other businesses, the moratorium should be lifted without any further delay," Energy Harbor said

Energy Harbor opposed any conditions from the PUC on the resumption of all in-person marketing that would be specific to retail suppliers

"The only conditions that the Commission should impose on suppliers are to comply with the directives of the Commonwealth’s public health officials as they pertain to the COVID-19 pandemic and to adhere to the Commission’s regulations that are applicable to in-person sales, including door-to-door sales and marketing activities. As no other businesses operating in Pennsylvania are subject to additional conditions, no reason exists to impose further rules on competitive energy suppliers," Energy Harbor said

"Energy Harbor again notes that the Commonwealth’s public health officials have already determined that mask-wearing is the only measure that is needed to ensure public health and safety, and is about to expire. Unless or until that guidance changes, competitive energy suppliers should not be subjected to any additional requirements," Energy Harbor said

In separately filed comments, NRG Energy similarly said, "NRG does not see any reason for the Commission to impose conditions or requirements on suppliers engaged in in-person sales and marketing activities, beyond those already established by the Commission’s regulations. Just as every other business operating in the Commonwealth, suppliers should be free to return to business as usual provided they comply with any directives of the Governor and Secretary of Health when conducting in-person sale and marketing activities. This outcome would enable suppliers to focus on developing and offering the innovative products and services that consumers want from their energy providers."

Energy Harbor opposed any PUC-administered mandatory refresher training on in-person sales for retail suppliers to resume in-person marketing, particularly if such training would delay the resumption of sales activities.

"While Energy Harbor would welcome the opportunity to participate in any refresher training offered by the Commission, participation should be not be [sic] a prerequisite to resuming in-person sales and marketing activities. If the Commission decides to require training, it should not make it a condition that delays the resumption of such activities, but rather should direct suppliers to comply with the requirement within a certain number of days after resuming in-person sales and marketing activities," Energy Harbor said

Concerning additional conditions, RESA said, "With Pennsylvania poised to allow people to go without masks in most situations no later than June 28, 2021, it is difficult to consider what additional conditions might be appropriate for suppliers engaging in door-to-door or in-person marketing. Nonetheless, continued adherence to whatever CDC guidelines that remain in place is still critical and could be considered a condition. Social distancing, masks for close-quarters indoor settings, and other such restrictions could be considered appropriate under the existing CDC requirements. It would not be inappropriate to also require suppliers to self-certify that they will ensure that their direct representatives adhere to such requirements and any other reasonable public health related precautions that are required of all citizens. As discussed below under training, such certification could include a representation that the supplier will provide refresher training for its sales associates regarding the Commission’s requirements for door-to-door marketing as well as any required safety protocols, to be permitted to engage the public. Any such requirement should be limited and specific so that suppliers can quickly and efficiently comply."

RESA further said that, "The Commission requested that commentors address the need for additional conditions to ensure the safety of the public and marketing representatives. The most obvious public health requirement, that representatives continue to be screened (i.e., temperature checks and questions regarding other symptoms) and not be permitted to engage in any face-to-face marketing if they are symptomatic, should continue at least in the short term. However, the way that screening process is accomplished should be left to the Supplier. For door-to-door encounters, which typically take place outside, on a consumer’s doorstep, particularly in summer months, the precautions of providing single-use marketing materials or the use of a sanitized tablet computer could be employed. The use of a mask, outdoors, could be required if the consumer requests it, but otherwise should be optional. Similarly, frequent washing of hands is an important practice, and if the Commission so desires, the mandatory wearing of masks if the conversation with the consumer takes place indoors would be reasonable. In-person marketing, which differs from door-to-door since it is typically a pre-arranged meeting, where the potential customer has made an appointment with the marketing representative, should be less prescriptive, because the potential customer and the representative have the opportunity to address expectations prior to the appointment. The Commission has allowed Suppliers to resume in-person marketing activity at public events and retail locations. There is no public health reason to prevent in-person meetings between Suppliers and potential customers at other locations since the consumer can ultimately decide whether he or she wants to participate in the meeting with the Supplier’s representative. Beyond these 'ordinary' precautions, it does not appear that additional requirements are necessary at this stage."

Concerning training, RESA said, "The Tentative Order raises the issue of what additional training may be required since Suppliers’ marketing representatives have been off the job for over a year. At the outset, the Commission should know that many Suppliers did retain their in-person marketing staffs, to the extent possible, and repurposed those individuals to customer service or other related tasks. The point being that not all employees are likely to have stale recollections of the rules. That said, however, with a 15-month hiatus, a refresher training course performed by the Supplier would not be an unreasonable ask if the Commission felt it was needed. RESA is concerned, however, about requiring Suppliers to attend a Commission developed training curriculum as a precondition to opening this sales channel. More specifically, Suppliers desire to get back to work as soon as practical, and the time that would be needed to develop any Commission required curriculum which could slow the reopening process. Moreover, RESA notes that the Commission has very well established regulatory guidelines that already clearly direct the sales and marketing activities of Suppliers. These regulations do require Suppliers to ensure that their agents are trained regarding the Commission requirements."

"Thus, rather than injecting further delay in the ability of Suppliers to resume normal sales and marketing operations, RESA suggests that the better course would be to direct Suppliers to develop and implement a refresher training course and certify to the Commission that they have done so or will complete the training within a reasonable time period. Ensuring that suppliers and their employees understand the rules is important, and RESA understands the Commission’s intentions with asking about the need for training. However, such training should not be a barrier to the resumption of door-to-door and in-person marketing. Rather, RESA recommends that the Commission rely on the work that has already been done in developing its clear sales and marketing regulations to guide Suppliers and, for those Suppliers who fail to comply with the regulatory requirements, the Commission should continue to pursue enforcement actions as appropriate. With most COVID-19 related restrictions soon to be lifted, Suppliers are anxious to once again open a marketing channel that has proven to be successful and vital for many of them and one that benefits the public interest by educating Pennsylvania’s consumers about the availability of competitive options for energy supply that best suit their individual needs and preferences," RESA said

Docket No. M-2020-3019254

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