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Pennsylvania PUC Warns Retail Suppliers On Marketing, Duty To Inform Customer Of Supplier, Clear Purpose Of Outreach Upon "First" Contact

PUC Cites "Broad" Applicability Of Rules, Cites Robocalls, Ringless Voicemails

PUC Warns Against Use Of "Vague" Statements -- "About Your Utility Bill, Discount, Rebate, Bonus, Generation Service, Etc" -- In Calls & Direct Mail, Electronic Solicitations

June 13, 2022

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Copyright 2010-21
Reporting by Paul Ring •

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The Pennsylvania Public Utility Commission (PUC) issued reminders and guidance to all Electric Generation Suppliers and Natural Gas Suppliers concerning the Marketing and Sales Practices for the Retail Residential Energy Market regulations at 52 Pa. Code Chapter 111 and other related marketing rules.

"[T]he PUC is providing guidance and reminders on what is expected of suppliers when marketing in general and in relation to specific marketing practices that have come to the attention of the PUC’s Office of Competitive Market Oversight (OCMO) and Bureau of Consumer Services (BCS)," the PUC said in a Secretarial Letter

The PUC emphasized that, "We note that sales and marketing are broadly defined at 52 Pa. Code § 111.2 as the 'extension of an offer to provide services or products communicated orally, electronically or in writing to a customer' and accordingly advise Suppliers to comply with all the Chapter 111 regulations when contacting residential customers, regardless of the marketing method, venue or technology utilized. Further, 52 Pa. Code § 111.1 notes that when these standards and practices do not address a specific situation or problem, suppliers are expected to 'exercise good judgment and use reasonable care in interacting with customers and members of the public.'"

"We direct Suppliers to 52 Pa. Code § 111.8(b) as the standard the PUC expects Suppliers to follow when contacting residential customers in any sales and marketing activity: '(b) Upon first contact with a customer, an agent shall identify the supplier that he represents. The agent shall state that he is not working for and is independent of the customer’s local distribution company or other supplier. This requirement shall be fulfilled by both an oral statement by the agent and by written material provided by the agent,'" the PUC said

"Accordingly, the Commission reminds all Suppliers that when contacting a potential customer, regardless of the method or technology utilized, it is imperative that the supplier identify themselves immediately and that they accurately and completely state the purpose of the contact. Failure to do so can easily lead to customer confusion and misunderstanding -- leading to a potential violation of the prohibitions in 52 Pa. Code § 111.12(d), against misleading, false or deceptive conduct or representations. Again, the PUC emphasizes that these standards and prohibitions apply to all sales and marketing campaigns, efforts or practices, regardless of medium or technology used by a Supplier, whenever a Supplier or its agent contacts a residential customer in this Commonwealth," the PUC said

The PUC further noted that the telemarketing rules provide that, "An agent who contacts customers by telephone shall, after greeting the customer, immediately identify himself by name, identify the supplier the agent represents and the reason for the telephone call. The agent shall state that he is not working for and is independent of the local distribution company or another supplier. The agent may not say or suggest to a customer that a utility customer is required to choose a competitive energy supplier." [emphasis by PUC]

"The PUC stresses that telemarketing agents are to immediately identify themselves upon contacting a potential customer; identify the supplier they are representing; and the reason for the telephone call," the PUC said

"We advise Suppliers that the 'reason for the telephone call' is to be specific and to avoid vague and potentially misleading statements (i.e. 'about an urgent matter concerning your generation service', 'about your utility bill', 'about your discount /refund /rebate /bonus' etc.). The PUC advises that these rules and expectations apply to all phone contacts to a potential customer’s household, regardless of whether it is a live agent or recorded voice (i.e. 'robocalls') and regardless a whether it is addressed to a utility customer or any member of the household or whether it involves only leaving a voice mail message," the PUC said

The PUC further reminded suppliers that, under the rules, "Customer consent to the release of customer information by the distribution company to the supplier to enable competitive solicitations does not constitute an express request to receive telephone solicitation calls."

"The PUC further reminds Suppliers that the state and federal 'Do Not Call' list laws and regulations apply to all Suppliers and shield all customers on the list -- regardless of whether that customer appears on the distribution utility’s Eligible Customer List (ECL). (We note that customer phone numbers are not included on the ECL). We advise that the PUC expects Suppliers to abide by the 'Do Not Call' restrictions in any sales and marketing activities involving any telephone contact, live or recorded (i.e. 'robocalls'), to a potential customer’s household, regardless of whether the agent is attempting to speak directly to a utility customer or any member of the customer’s household, or when leaving a voice mail message (including 'ringless voice mail')," the PUC said

With respect to door-to-door sales, the PUC emphasized that, "Suppliers must obtain criminal history background checks and 'Megan’s Law' checks on all door-to-door agents prior to the agent conducting any door-to-door activity."

For door-to-door sales, "Upon first contact with a customer, a Supplier’s agent must identify the supplier that he or she represents and state that he or she is not working for and is independent of the customer’s local distribution company," the PUC said

"Supplier agents must comply with local ordinances regarding door-to-door marketing and sales activities – including local permitting requirements. Suppliers are to limit door-to-door marketing or sales activities to the hours between 9 a.m. and 7 p.m. during the 6 months beginning October 1 and ending March 31, and to the hours between 9 a.m. and 8 p.m. during the months beginning April 1 and ending September 30. When a local ordinance has stricter limitations, Suppliers are to comply with the local ordinance," the PUC noted

"When a Supplier engages in door-to-door sales and marketing activity, the supplier is to notify BCS [PUC and Bureau of Consumer Services] no later than the morning of the day that the activity begins. The notification is to include the municipalities (or postal codes) the Supplier’s agents will be operating in and the dates the sales activity will occur ... Also, as a reminder, Suppliers should also be providing similar notice to the local distribution company at the same time. See 52 Pa. Code § 111.14(a) & (b)," the PUC said

The PUC also reminded suppliers of general prohibitions applicable to all marketing, which includes direct mail and electronic solicitations

Among other things, such rules provide that, "Suppliers shall ensure that product or service offerings made by a supplier contain information, verbally or written, in plain language designed to be understood by the customer."

Accordingly, the PUC, "caution[ed]" suppliers to avoid practices such as the following in written or electronic communication:

• "Failing to prominently identify the Supplier that sent the communication. "

• "Using references to the distribution utility improperly, including using the utility name in a manner that could suggest that the communication is from or sent on behalf of the utility."

• "References to the Pennsylvania Public Utility Commission or any other government agency that could suggest that the communication is from or endorsed by the agency."

• "Failing to properly identify the purpose of the communication. We further advise against statements like 'rate discount /refund/rebate notice,' 'utility rate increase notice,' etc."

The PUC's letter also reviewed labeling (fixed, introductory, variable) and other disclosure requirements for certain products, rules for renewable energy claims, and suppliers' responsibility for their agents

See the letter here for full details

Docket L-2010-2208332

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