Pennsylvania PUC Tells Suppliers To Avoid "Vague" Statements In Complying With Rule To Identify Purpose Of Solicitation (e.g. "About Your Utility Bill", "About Your Discount, Rebate, Refund", "Urgent Matter About Your Generation Service", "Utility Rate Increase Notice")

Guidance Prompted By Recent Marketing Practices That Have Come To PUC's Attention

The Pennsylvania PUC, via Secretarial letter, has issued "reminders" to retail electric and natural gas suppliers concerning applicable sales and marketing rules, and issued further "guidance" on such rules

The guidance was issued, "in relation to specific marketing practices that have recently come to the attention of the PUC’s Office of Competitive Market Oversight (OCMO) and Bureau of Consumer Services (BCS)."

The PUC directed the 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, which provides, "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."

"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. Below we will reinforce the rules relating to specific types of sales and marketing methods," the PUC said

The PUC reminded all suppliers that 52 Pa. Code § 111.10 addresses telemarketing and includes a number of specific requirements and cross-references to other rules – including the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C.A. §§ 6101—6108) and 16 CFR Part 310 (relating to telemarketing sales rule) as well as the Pennsylvania Telemarketer Registration Act, 73 P.S. §§ 2241 – 2249.

The PUC wished to highlight subsection (b) of this regulation that addresses how a sales agent is to proceed upon calling a potential customer, which provides, "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." [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 (emphasis by PUC)

"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 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

Likewise, 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 (See 52 Pa. Code § 111.8(b))

Similarly, for direct mail and electronic marketing, the PUC "caution[ed]" suppliers to avoid practices like 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.

-- 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., without a more complete explanation of the purpose of the solicitation," the PUC said

The PUC further reminded 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). (the PUC noted 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, 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," the PUC said

Regarding door-to-door sales, regardless of local permitting requirements, the PUC urged all suppliers to reach out to the officials in all of the municipalities they are operating in to, "let them know who you are, what your agents will be doing, and how to contact you if needed."

"We urge all Suppliers to immediately perform a comprehensive review of their current and planned residential sales and marketing efforts to ensure that the standards discussed in this Secretarial Letter are complied with," the PUC said

See the PUC's letter here