People's Counsel: Retail Suppliers with Multiple Offers Must Post All Prices Online

Retail suppliers in Maryland with multiple price and product offerings should be required to list each offering online in order to meet statutory requirements, the Office of People's Counsel said in comments to the PSC.

The PSC, in RM 46, is reviewing implementation of Public Utility Article (PUA) § 7-507 (j), which states, "An electricity supplier shall post on the Internet information that is readily understandable about its services and rates for small commercial and residential electric customers."

OPC said that if a supplier is offering multiple products, all such products should be posted online.

"A singular listing of a price with language encouraging further inquiry does not comply sufficiently with the requirements of the statute, in OPC's opinion. If the supplier has several possible rates and services, they are to be enumerated on the company's web-site, as the statute contemplates. The only way a single offer would satisfy the statutory requirements is if that offer was the sole offer a supplier had to make. By adding language to a website indicating other offers are available, it implies that not all offers are on display, and therefore cannot be considered by a consumer without first engaging a salesperson in conversation to learn of those additional offers. That business practice falls short of the statutory requirements," OPC said.

Suppliers, however, argued against such an overly prescriptive requirement. The National Energy Marketers Association said that, similar to New York, suppliers should only be required to list "generally available offers" online.

The posting of generally available offers, "promotes the goal of providing consumers with pricing transparency while also retaining a necessary level of flexibility for electric suppliers to be able to respond to dynamically changing market conditions," NEM said. "In other words, overly proscriptive price reporting requirements would have the negative consequence of limiting suppliers’ ability to offer innovative services and rates in the market."

While OPC did say that, "An entity providing service only through negotiated contracts may not be required to post information about its services and rates on the internet," OPC also said that, "An internet posting stating 'contact the supplier for a quote' is not sufficient to comply with the statutory requirements. That statement, or any variation of it, does not provide a single piece of useful information concerning rates and services to a consumer."

Regarding variable rates, OPC said that, "A supplier offering a variable rate would need to update their website at each point where a customer would be able to enroll at a new rate."

OPC also took the opportunity to argue that variable rates do not comply with COMAR:

"A variable rate after the first month, which changes each successive month, is rarely, if ever, made known to the consumer in advance of the period of time that it is to be in effect. This method of providing electricity supply does not comply with COMAR 20.53.07.08A(2)(d)," OPC said.

COMAR 20.53.07.08A(2)(d) provides that, "A supplier contract shall contain all material terms and conditions, including ... (d) A price description of each service, including all fixed and variable costs"

Regarding brokers' and aggregators' inclusion under the price posting requirements, OPC said that the PSC, "may determine that someone who takes title to the electricity is in a position to establish what the rates for that electricity should be for sale to customers. Thus, aggregators and brokers may not need to comply with the statute regarding posting on the internet, as they negotiate deals with suppliers who have electricity supply and offers of services and rates for supply, for their customers."