Pennsylvania Removes Information from Eligible Customer Lists

The Pennsylvania PUC has ordered that customer telephone numbers be excluded from the eligible customer lists (ECL) provided by electric distribution companies (EDCs) to electric generation suppliers (EGSs), in an order published yesterday (M-2010-2183412).

"We find the arguments ... in support of removing the customer telephone from the list of ECL data points compelling and shall remove that element from the ECL," the PUC said.

"We continue to believe that the Commission has the legal authority to include the customer telephone number on the ECL. However, in weighing the policy concerns of promoting competition and the EGSs' need for obtaining those numbers directly from the EDCs against the privacy concerns and expectations of customers, we believe that the benefits to suppliers are now outweighed by the detriments of releasing what many customer[s] may consider personal information," the PUC continued.

"We are also concerned that customers may be more inclined to restrict the release of all information released in order to protect their phone numbers. So if the telephone numbers are on the ECL, [more] customers may elect to prohibit the sharing of other account information – information that EGSs may need to tailor offers – simply to protect the confidentiality of their telephone numbers. We do not think the EGSs need the telephone numbers on the ECL," the PUC added.

The PUC also reminded suppliers that telephone numbers remain subject to the protection of Pennsylvania's "Do not call" list (73 P.S. § 2242). If an EGS is able to obtain a customer's telephone number from another source, and that customer's telephone number is on the "Do not call" list, the EGS and every other potential marketer is subject to sanctions if that number is called, the PUC said.

The PUC's order, which was on reconsideration after a remand, also allows customers to restrict the entirety of their information from inclusion in the customer list, in addition to certain specific items.

Under the PUC's prior interim guidelines, the customer was only allowed to restrict the sharing of their (1) telephone number, (2) address, and/or (3) historic billing data, except that victims of domestic violence and customers which are similarly endangered were granted the unfettered ability to restrict all of their customer information. Aside from this limited exception, customers could only restrict the three data types listed above, and could not restrict EDCs from sharing any other customer information with retail suppliers.

"[U]pon reconsideration, we shall revise our interim guidelines to provide that EDCs should allow customers the option to withhold the disclosure of all customer account and usage information from the ECL," the PUC held.

"Moreover, the option should be presented, in the EDC customer solicitation process, in a manner that discloses clearly what information is to be released to Commission-licensed marketers; namely, name, address, telephone number [sic] and historic usage data. In this fashion, customers will be able to make an informed choice regarding whether their account and usage information held by the EDC can be disclosed," the PUC said.

The PUC will continue to allow EDCs to use the opt-out process for customers to withhold the release of customer account and usage information from the eligible customer list.

"We find that the opt-out process is a reasonable and efficient means by which customers can exercise their right to withhold confidential information. In particular, we agree with the comments of PPL that use of an opt-in process would likely result in a broad exclusion of customers from the ECL; this in turn, would make it far more difficult for EGS firms to make efficient and effective offers to potential retail customers," the PUC said.

"We also agree with RESA that the data provided to EGSs is fundamentally necessary to ensure a properly functioning competitive retail market in Pennsylvania, which is required by Chapter 28. As noted by RESA, in addition to marketing, the information on the ECL enables EGSs 'to complete the process of enrolling a customer, to develop accurate pricing offers for customers, and to maximize efficiency in providing service to a customer once he or she is enrolled.' Indeed, without access to ECL information, the process of switching a customer to the electric service of an EGS would be extremely impaired," the PUC added.

The PUC also concluded that opponents of the opt-out process, while raising sincere concerns, did not substantiate their claims of harm through evidence such as studies, objective testimony, or other concrete facts upon which the concerns were based.

"Even OCA, which opposes the use of the opt-out process unless we eliminate certain items from the ECL, generally agrees that the current process is working," the PUC said.

The PUC stressed, however, that, "EDCs should take reasonable steps to make sure customers are aware of what their choice means, how the information would be used, and clear instruction on how to opt-out."

"Therefore, in the EDC's customer solicitation and other customer contacts, it must be made clear that if a customer does not take affirmative action to opt-out, by return post card, via Internet website or by calling a toll free telephone number, the customer's name, address, account number, and usage will be included on the ECL and made available to licensed EGSs," the PUC directed.

The PUC ordered that several addition data elements shall be added to eligible customer lists, including: a net metering status flag; a sales tax status flag; and current and future transmission and capacity obligation data from PJM. Additionally, a new "optional" element was added to the customer lists: a status flag for reverse flow or generation.

The PUC will no longer require the EDCs to send a separate annual opt-out notice to customers regarding the customer lists. Instead, each EDC shall conduct an opt-out solicitation in the first quarter of 2012, which shall provide a variety of options for customers to notify the EDC of his or her desire to withhold account and usage information from the ECL. These options shall include, but are not limited to: pre-paid post cards, company-provided forms, e-mails, toll-free numbers, and the EDC website.

Going forward, separate annual opt-out solicitations will not be used. Instead, EDCs shall actively notify customers of their withholding options through each new customer's welcome package and through periodic announcements in customer bill inserts, e-mail, or a separate announcement included in the customer's paper bill or electronic notification, if available. The welcome package for new customers and periodic announcements for all customers shall also provide guidance on how to make the selection through a company-provided form, e-mails, written letter, toll-free numbers, or the EDC website.

To ensure uniformity in these communications, the PUC will direct EDCs to consult with the Commission's Office of Communications on their mailings and communications before the solicitation is made to their customers.