Ambiguous Pennsylvania Language Imposes Vague Marketing Prohibition on Suppliers at Duquesne Light, PUC Also Revises Supplier Fee in Customer Referral Program

The Pennsylvania PUC has approved revisions to the Duquesne Light Standard Offer customer referral program, including a revised supplier fee, but its ordering paragraph used vague language to describe a marketing prohibition related to the program.

Under the Standard Offer customer referral program, now scheduled to commence on August 16, 2013, Duquesne Light will refer a discrete subset of customers calling the utility to retail suppliers, which shall offer a 7% discount off Duquesne Light's Price to Compare, in effect at the time of the offer, for a 12 month period.

The fee to be charged to retail suppliers for enrollments under the Standard Offer program though August 2014 has been reduced to a fixed amount of $25 per enrolled customer, from $30.

Additionally, participating EGSs will be charged this customer acquisition fee based on only the number of EDI transactions submitted by the EGS for the Standard Offer Program (SOP).

Duquesne Light had also proposed that the $25 acquisition fee apply to the number of EDI transactions for non-SOP program enrollments corresponding to customers which Duquesne Light had referred to the EGS at any time during the five business day period prior to the EDI transaction being submitted for the customer. However, the PUC declined to impose a fee on EGSs for such customers at this time.

"At this point, we will only allow EGSs to be charged for the number of EDI transactions submitted by the EGS for the SOP. To allow EGSs to be charged for other, non-SOP enrollments up to five business days after a SOP referral is made by Duquesne Light is tenuous and beyond the scope and intent of the SOP program," the PUC said.

However, in light of this decision, the PUC said that, "we remind EGSs that any calls received from Duquesne Light in connection with this program should be limited to offering the SOP product only, and should in no way be used to describe other products or offerings by an EGS. Additionally, we direct Duquesne Light to make this limitation a requirement of its SOP program rules and contract" (emphasis added).

In other words, during customer calls referred by Duquesne Light, the supplier may only offer the Standard Offer program product.

Later, however, the PUC said in the ordering paragraphs that, "Duquesne Light Company shall include a requirement in its Standard Offer Program rules and contracts that participating EGSs are prohibited from offering any other programs to those customers that are referred to the EGS by Duquesne Light Company for the purposes of the Standard Offer Program" (emphasis added).

This paragraph refers to the prohibition on marketing non-SOP products as applying to the "customers" referred by Duquesne Light, rather than the calls referred by Duquesne Light. Presumably, the "customers that are referred to the EGS by Duquesne Light" means only those customers who call the EGS through a referral by Duquesne Light, and that if they decline the SOP product, but later call the EGS on their own initiative, they are no longer considered a "customer ... referred to the EGS by Duquesne Light," even though they are, literally, a customer that had at one time been a customer referred to the EGS by Duquesne Light

However, when taken literally, the PUC's ordering paragraph, by referring to "customers" and not "calls," could be read as prohibiting retail suppliers from offering anything but the SOP product to "customers" previously referred to the supplier by Duquesne Light, and who declined the SOP product at the time but who later, on the customer's own motion, seek out an offer from the supplier, even months or years later, though we do not think, given the other quoted language above, this is the PUC's intent. Still, this ambiguous language in the ordering paragraph is problematic.

The PUC also required that Duquesne Light must submit its call center script for the SOP program for review by the Office of Competitive Market Oversight.

P-2012-2301664