RULES AND REGULATIONS
Title 52—PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CH. 56 ]
[ L-2015-2508421 ]
Standards and Billing Practices for Residential Public Utility Service
[49 Pa.B. 2815]
[Saturday, June 1, 2019]Act 155 of 2014 reauthorized and amended Chapter 14 of the Public Utility Code (66 Pa.C.S. §§ 1401—1419), Responsible Utility Customer Protection. The Act is intended to protect responsible bill paying customers from rate increases attributable to the uncollectible accounts of customers by providing public utilities with the collection mechanisms and procedures to promote timelier collections, while protecting vulnerable customers by ensuring that utility service remains available to all customers on reasonable terms and conditions. The legislation is applicable to electric distribution utilities, water distribution utilities, natural gas distribution utilities, steam heat utilities, and wastewater utilities. Chapter 56 of the Pennsylvania Code at 52 Pa. Code §§ 56.1 et seq. (relating to standards and billing practices for residential utility service) must be revised because amended Chapter 14 supersedes a number of Chapter 56 regulations, and the Commission is directed to revise Chapter 56 and promulgate regulations to administer and enforce Chapter 14. Pursuant to the authority of Sections 501, 1301, 1501, and 1509 of the Public Utility Code, the Commission is amending its existing regulations in Chapter 56 (Standards and Billing Practices for Residential Utility Service) of the Pennsylvania Code.
The contact persons for this final rulemaking are Patricia T. Wiedt, Assistant Counsel, Law Bureau (717) 787-5000, (pwiedt@pa.gov); Laura Griffin, Regulatory Coordinator, Law Bureau, (717) 772-4597, (laurgriffi@pa.gov); Daniel Mumford, Office of Competitive Market Oversight (717) 783-1957, (dmumford@pa.gov); and Matthew Hrivnak in the Bureau of Consumer Services (717) 783-1678 (mhrivnak@pa.gov).
Public Meeting held
February 28, 2019Commissioners Present: Gladys M. Brown, Chairperson; David W. Sweet, Vice Chairperson; Norman J. Kennard; Andrew G. Place, statement follows; John F. Coleman, Jr.
Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of
66 Pa.C.S. Chapter 14; L-2015-2508421
Final Rulemaking Order By the Commission:
On October 22, 2014, Governor Corbett signed into law HB 939, or Act 155 of 2014. This law became effective on December 22, 2014. The Act reauthorized and amended Chapter 14 of the Public Utility Code (66 Pa.C.S. §§ 1401—1419) (Responsible Utility Customer Protection). The Act is intended to protect responsible bill paying customers from rate increases attributable to other customers' delinquencies in payment. The Act provides public utilities with collection mechanisms and procedures that promote timelier collections, while protecting vulnerable customers by ensuring that utility service remains available to all customers on reasonable terms and conditions. The legislation is applicable to electric distribution utilities, water distribution utilities, natural gas distribution utilities, steam heat utilities, and wastewater utilities. In this Rulemaking Order, the Pennsylvania Public Utility Commission (Commission) finalizes its amended Standards and Billing Practices for Residential Utility Service regulations at 52 Pa. Code Chapter 56.
Background
Chapter 56 of the Pennsylvania Code (52 Pa. Code §§ 56.1—56.461, relating to the standards and billing practices for residential utility service) must be revised because the amended Chapter 14 supersedes a number of Chapter 56 regulations, and the Commission is directed to revise Chapter 56 and promulgate regulations to administer and enforce Chapter 14. Five years after the effective date and every five years thereafter, the Commission also must report to the General Assembly regarding the implementation and effectiveness of the amended Act. Chapter 14 expires on December 31, 2024, unless reenacted.
As the initial step of the implementation process, on December 10, 2014, the Commission issued a Secretarial Letter alerting all affected utilities to some of the more significant provisions of Chapter 56 that have been superseded by Act 155.1 On that same day, the Commission issued another Secretarial Letter directed to steam heat, wastewater, and natural gas distribution utilities reminding them that Act 155 now makes Chapter 14 applicable to all of these entities.2
Thereafter, in a January 15, 2015, Tentative Order, the Commission proposed to start addressing the more urgent implementation matters of the Act. See Tentative Order, Chapter 14 Implementation, Docket Number M-2014-2448824 (Order entered January 15, 2015) (Tentative Implementation Order). The comments from this Tentative Implementation Order assisted with drafting these regulations.
In reviewing Act 155, the Commission identified in the Tentative Implementation Order two issues as being in need of immediate attention:
• Section 1403, Definition of Medical Certificate: The Commission is approving the ''form'' that a medical certificate must take.
• Section 1410.1(3) and (4): Utility reporting requirements concerning accounts with arrearages in excess of $10,000.00 and annual reporting of medical certificate usage.
Sixteen parties3 submitted comments in response to the Tentative Implementation Order. On July 9, 2015, the Commission issued a Final Order, Chapter 14 Implementation, Docket No. M-2014-2448824 (Order entered July 9, 2015) (Final Implementation Order). In the Final Implementation Order, the Commission issued guidance as to the form and content of a medical certificate. Additionally, we summarized guidelines for 66 Pa.C.S. § 1410.1(3) (relating to public utility duties) regarding reporting requirements for accounts exceeding $10,000 in arrearages. We further summarized our guidelines for Section 1410.1(4) (relating to public utility duties) regarding reporting requirements for medical certificates.
On July 21, 2016, as provided for under law at 71 P.S. § 745.5, the Commission adopted a Notice of Proposed Rulemaking (NOPR) Order to solicit comments about amending and adding to the provisions of 52 Pa. Code Chapter 56, as proposed in Annex A of the NOPR.4
The NOPR addressed numerous issues involving the application of the amended Chapter 14 provisions including amending the definitions of applicant, customer, and public utility, and clarifying the 90-day deposit payment period and the expanded protection from abuse orders in the amended 66 Pa.C.S. § 1417 to include ''a court order issued by a court of competent jurisdiction in this Commonwealth, which provides clear evidence of domestic violence against the applicant or customer.'' We asked parties to include suggested language relating to these other court orders. We also sought comments from parties on material that should be included in the Commission's privacy guidelines as referenced in the amended 66 Pa.C.S. § 1406(b)(1)(ii)(D) (relating to notice of termination of service).
In addition to the changes to make Chapter 56 consistent with the amended Chapter 14, we also proposed changes to align with other recent regulatory changes such as those in Chapter 57 (relating to electric service) intended to accelerate the switching of electric generation service (52 Pa. Code §§ 57.1—57.259). We also proposed some minor revisions to § 56.100(i) to clarify what is expected of the February winter survey update. Additionally, we proposed a change to clarify that the burden of proof remains with parties who file the informal complaints at §§ 56.173 and 56.403. We proposed some minor revisions to the collections reporting data dictionary in the Appendix C to Chapter 56 to help alleviate confusion, and to make Chapter 56 reporting requirements more consistent with those found in Chapters 54 and 62 (relating to electricity generation customer choice and natural gas supply customer choice) (52 Pa. Code §§ 54.75 and 62.5). Finally, we asked commentators to include in their comments a specific estimate of the costs and/or savings associated with compliance with these proposed changes, including any legal, accounting, or consulting procedures which may be required and to explain how the compliance costs were derived.
Fourteen parties filed comments on April 18, 2017, including: Aqua Pennsylvania (Aqua); Columbia Gas of Pennsylvania (Columbia); Consumer Advisory Council (CAC); Duquesne Light Company (Duquesne); Energy Association of Pennsylvania (EAP); Joint Comments of Tenant Union Representative Network, Action Alliance of Senior Citizens of Greater Philadelphia, and the Coalition for Affordable Utility Service and Energy Efficiency in Pennsylvania—collectively the ''Low Income and Consumer Rights Group'' (LICRG); Joint Comments of Community Justice Project, Disability Rights Pennsylvania, Health, Education and Legal Assistance Project: A Medical-Legal Partnership at Widener University, Homeless Advocacy Project, Housing Alliance of Pennsylvania, Pennsylvania Coalition Against Domestic Violence, Pennsylvania Health Law Project, Pennsylvania Utility Law Project, Women's Center, Inc. of Columbia & Montour Counties, and the Women's Resource Center—collectively the ''Joint Commenters'' (Joint Commenters); Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company and West Penn Power Company (FirstEnergy); NRG Energy (NRG); Office of Consumer Advocate (OCA); PECO Energy Company (PECO); Pennsylvania American Water Company (PAWC); Philadelphia Gas Works (PGW); and PPL Electric Utilities Corporation (PPL). On May 19, 2017, the Independent Regulatory Review Commission (IRRC) filed their comments. All comments, in addition to the July 21 NOPR, are available on the Commission's website by searching using the docket number L-2015-2508421 or at this weblink: http://www.puc.pa.gov/about_puc/consolidated_case_view.aspx?Docket=L-2015-2508421.
Upon review of the initial comments filed, the Commission issued an order on July 13, 2017, providing parties an opportunity to file additional comments on our proposed revisions to Chapter 56.5 This Order further asked for comment on two new matters: proposed revisions to §§ 56.131 and 56.361 that would enable supplier switching confirmation notices to be sent to third parties; and revisions to § 56.172 to clarify termination rules for customers appealing informal decisions issued by the PUC's Bureau of Consumer Services (BCS). Additionally, the Commission sought further comment on several other proposed changes to Chapter 56, including but not limited to the privacy guidelines relevant to termination notices in §§ 56.93 and 56.333, the usage of medical certificates and their impact on arrearages, and the cost and impact of the proposed regulatory changes.
In response, seventeen parties filed additional comments in September 2017: Aqua Pennsylvania (Aqua); Columbia Gas of Pennsylvania (Columbia); Duquesne Light Company (Duquesne); Energy Association of Pennsylvania (EAP); Joint Comments of Tenant Union Representative Network, Action Alliance of Senior Citizens of Greater Philadelphia, and Coalition for Affordable Utility Service and Energy Efficiency in Pennsylvania—collectively the ''Low Income and Consumer Rights Group'' (LICRG); Joint Comments of ACTION-Housing, Inc., Bringing Hope Home, Health, Education and Legal assistance Project: A Medical-Legal Partnership, Living Beyond Breast Cancer, Medha D. Makhlouf, Philadelphia Association of Community Development Corporations, Project HOME, Regional Housing Legal Services, Sisters R Us Circle of Survivors, The Self-Determination Housing Project of Pennsylvania—collectively the ''Health & Housing Coalition'' (Health & Housing Coalition); Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company and West Penn Power Company (FirstEnergy); Office of Consumer Advocate (OCA); PECO Energy Company (PECO); Pennsylvania American Water Company (PAWC); Philadelphia Gas Works (PGW); and PPL Electric Utilities Corporation (PPL); The Center for Hunger-Free Communities (Hunger-Free Communities); National Fuel Gas Distribution Corporation (NFG); National Energy Marketers Association (NEM); Pennsylvania Energy Marketers Coalition (PEMC); and the Retail Energy Supply Association (RESA). All additional comments are available on the Commission's website by searching using the docket number L-2015-2508421 or at this weblink: http://www.puc.pa.gov/about_puc/consolidated_case_view.aspx?Docket=L-2015-2508421.
Regulatory Review
Under section A of the Regulatory Review Act (71 P.S. §§ 745.1—745.15), the Commission submitted a copy of this final-form rulemaking, which was published as proposed at 47 Pa.B. 965 (February 18, 2017), and served February 6, 2017, to IRRC, the Chairpersons of the House Committee on Consumer Affairs, and the Senate Committee on Consumer Protection and Professional Licensure, for review and comment. Under section 745.5(f) of the Regulatory Review Act, on February 23, 2017, the Commission resubmitted a copy of the notice of proposed rulemaking to the Senate Committee on Consumer Protection and Professional Licensure, the House Consumer Affairs Committee and IRRC. In compliance with section 5(b.1), the Commission also provided IRRC and the Committees with copies of all comments received as well as other documentation.
This final-form rulemaking was deemed approved by the House Committee on Consumer Affairs, was deemed approved by the Senate Committee on Consumer Protection and Professional Licensure, and was approved by IRRC on April 18, 2019, in accordance with section 5(g) of the Regulatory Review Act.
Conclusion
The Commission reviewed all comments and now issues this Final Rulemaking Order. The interested parties filed or had opportunity to file comments on three separate occasions, including the January 15, 2015, Tentative Implementation Order. The issues have narrowed and this Final Order attempts to resolve remaining issues. In some respects, this Final Rulemaking Order represents significant changes to the originally proposed rulemaking. We made changes in response to the issues and resolutions raised in comments filed by IRRC, consumer advocates and industry participants. We found merit with many of the comments and have made the necessary changes. The comments and our resolution of the issues are discussed in detail in Attachment One.
Accordingly, the Commission's implementation of Chapter 14, amending Chapter 56 regulations in compliance with the statute, establishes uniform, fair and equitable residential public utility service standards governing eligibility criteria, credit and deposit practices, and account billing, termination and customer complaint procedures. Chapter 56 assures adequate provision of residential public utility service, to restrict unreasonable termination of or refusal to provide that service and to provide functional alternatives to termination or refusal to provide that service while eliminating opportunities for customers capable of paying to avoid the timely payment of public utility bills and protecting against rate increases for timely paying customers resulting from other customers' delinquencies. See 52 Pa. Code § 56.1. As such, this Final Rulemaking Order is in the public interest. This Order, Attachment One and Annex A will be published on the Commission's website.
Accordingly, under Sections 501, 504, and 1401—1418 of the Public Utility Code, 66 Pa.C.S. §§ 501—504, and 1401—1418; Sections 201 and 202 of the Act of July 31, 1968, P.L. 769 No. 240, 45 P.S. 1201—1202, and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2, and 7.5; Section 204(b) of the Commonwealth Attorneys Act, 71 P.S. § 732.204(b); Section 745.5 of the Regulatory Review Act, 71 P.S. § 745.5; and Section 612 of the Administrative Code of 1929, 71 P.S. § 232, and the regulations promulgated thereunder at 4 Pa. Code §§ 7.231—7.234, we seek to finalize the regulations set forth in Annex A, attached hereto; Therefore,
It Is Ordered:
1. That the Commission hereby adopts the revised final regulations set forth in Annex A.
2. That the Law Bureau shall submit this Order, Attachment One and Annex A to the Office of Attorney General for review as to form and legality and to the Governor's Budget Office for review for fiscal impact.
3. That the Law Bureau shall submit this Order, Attachment One and Annex A for review by the Legislative Standing Committees, and for review and approval by the Independent Regulatory Review Commission.
4. That the Law Bureau shall deposit this Order, Attachment One and Annex A with the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.
5. That the regulations embodied in Annex A shall become effective upon publication in the Pennsylvania Bulletin.
6. That the Secretary shall serve this Order upon all jurisdictional electric utilities, natural gas utilities, steam, water, and wastewater utilities, electric generation suppliers, natural gas suppliers, the Office of Consumer Advocate, the Office of Small Business Advocate, and all parties that submitted comments at this Docket. The Order, Attachment One and Annex A shall be posted and made available electronically on the Commission's website.
7. The contact persons for this matter are Matthew Hrivnak in the Bureau of Consumer Services (717) 783-1678, Daniel Mumford in the Office of Competitive Market Oversight (717) 783-1957, and Patricia T. Wiedt in the Law Bureau (717) 787-5000.
ROSEMARY CHIAVETTA,
SecretaryFiscal Note: Fiscal Note 57-315 remains valid for the final adoption of the subject regulations.
Attachment One Cost and Impact of Regulatory Changes
In our July 2016 NOPR, we asked commentators to include in their comments a specific estimate of the costs and/or savings associated with complying with the Commission's proposed changes, including any legal, accounting, or consulting procedures which may be required. We further asked parties to explain how any dollar estimates they provide were derived.6
IRRC, in its comments in response to the NOPR, noted:
We are particularly interested in the economic and fiscal impact of this regulation because it relates to the criteria that we must consider in determining whether the final regulation is in the public interest.(IRRC at 6). Accordingly, we again invited parties to submit estimates of the costs and/or savings associated with compliance with the proposed regulations in our July 2017 Order Seeking Additional Comment.7
In response to these requests we received some cost estimates but, for the most part, utilities expressed a reluctance to provide estimates. They often cited the difficulty and complexity of calculating costs and/or an inability to estimate costs until the final regulations and expectations are established.
Duquesne noted that it appreciates and understands the need for cost data but states that until a final determination is reached on some of the proposals, it is difficult for them to articulate what the cost and impact will be. (Duquesne Additional Comments at 6). Duquesne does offer some general costs of information system upgrades, especially in the context of providing switching notices to third parties. It opines that changes to its billing system for moderately complex operations can cost upward of $1 million for each change and can take over a year to develop, test and roll out. (Duquesne Additional Comments at 8).
Columbia submits that when regulations change, they will incur costs in order to achieve compliance with such a change and, like Duquesne, uses third-party notification for supplier switching as an example. Columbia estimates that the programming costs to implement such will be anywhere from $4,850 to $9,700. Further, Columbia requests that as the regulations change that the Commission allow the affected utilities the necessary time and flexibility to adapt to such regulatory changes, as each affected utility possesses its own unique systems and internal processes. (Columbia Additional Comments at 4-5).
Likewise, NFG also emphasizes that whenever there are regulatory changes there is always a cost associated with modifying systems to implement those changes. While NFG sees benefits in numerous items in this rulemaking, NFG suggests that the changes which are eventually implemented be reasonable and allow flexibility. Each utility has developed systems in different ways and has varied technological programs and capabilities. Additionally, each utility has varied geographic areas and diverse customer bases. It is important to recognize that changes which would benefit certain utility providers and its customers may be detrimental to others. NFG believes that the cost burden of third-party supplier switching notices outweighs its benefit. Many utility systems are not formatted to make this kind of notification happen readily and could require significant modifications to systems to meet the requirement. Furthermore, this would likely only positively impact a very small number of customers. For example, in NFG's service territory only 0.6% of customers would benefit from this change. Requiring utilities to bear a high cost and burden for a change that benefits such a limited subset of its customers serves as an example of why a cost-benefit analysis is necessary and that this specific change should accordingly be rejected. (NFG Additional Comments at 3-4).
With few exceptions, PPL is not able to provide cost impacts related to the Commission's proposed revisions to Chapter 56. Many of the cost impacts will be directly related to how many customers avail themselves of the Commission's proposed regulations, if adopted, and this is unknown at this time. (PPL Additional Comments at 2-3). PPL estimates that it would cost $25,000 to develop an automated process to provide notices to third parties and that there would be mailing costs as well. (PPL Additional Comments at 3). PPL also contends that the written consent notice proposal for electronic notices, requiring utilities to obtain them in writing, renew the consent, and update contact information periodically, creates an unnecessary expense for the utility. PPL estimates it would cost approximately $850,000 to send its 1.2 million residential customers written consent notices. This expense would be repeated, and perhaps increase, each time PPL would be required to renew the consent agreements. This expense would ultimately be borne by the ratepayers. (PPL Additional Comments at 5-6).
At the present time, PAWC does not have estimated cost and/or savings associated with compliance with the proposed changes. (PAWC Additional Comments at 5).
EAP defers to its member companies' responses concerning cost estimates. (EAP Additional Comments at 4-5). However, EAP commends the Commission for including the ability of utilities to contact customers by email, text message or other electronic messaging format into this section to satisfy attempted personal contact by the utility. Electronic communications afford utilities and customers with a myriad of benefits including reduced costs associated with paper, printing, reproduction, storage, and postage as well as increased speed of transactions. Information can be transmitted nearly instantaneously instead of days or weeks of wait time from the postal service. (EAP at 7).
FirstEnergy notes that they seek to avoid the potentially significant costs and resources associated with updating their billing system to accommodate a new method for charging deposits. Their billing system does not have the capability of billing an applicant or customer a deposit ninety days after the initiation of service. To implement such a change, the Companies expect that these accounts would require manual review after ninety days, followed by manual adjustments to customers' bills to reflect the deposit charge. (FirstEnergy at 15-16). In addition, the phrase ''through its employees'' should be removed from § 56.97(b). These changes to the regulations would permit utilities to utilize Interactive Voice Response (IVR), which represents a cost-saving opportunity for utilities and would likely expedite wait times for customers calling the Companies' contact centers. With IVR, instead of utility employees providing termination information to customers, the information required would be provided by a computer voice. (FirstEnergy at 19).
The OCA notes that it does not have access to compliance cost information and so cannot provide comment at this time. The OCA notes, however, that costs should be considered in the proper context as this rulemaking relates to important consumer protections, and it can be difficult to quantify the benefits of this type of regulation. The proposed regulations would help to prevent fraud, prevent consumers from becoming payment troubled, and prevent service terminations with their attendant economic consequences and risks to public health, safety, and even potential loss of life. While the OCA appreciates that the Commission and IRRC need to consider costs associated with regulatory proposals, the fact that the current proposal relates to important consumer protections should also be considered to place costs considerations in the appropriate context. (OCA Additional Comments at 5-6).
Discussion
We agree with IRRC that costs and benefits must be fully considered when determining if the final regulation is in the public interest. We also agree with the OCA that costs need to be considered in the proper context as this rulemaking relates to important consumer protections. OCA notes the difficulty in quantifying the benefits of this type of regulation, as many of the utilities likewise pointed to the difficulty in quantifying the costs of the regulations. We agree with OCA in that the proposed regulations, in many instances, would help to prevent fraud, prevent consumers from becoming payment troubled, and prevent service terminations with their attendant economic consequences and risks to public health, safety, and even potential loss of life.
We point to some of the proposals as providing clear cost benefits, agreeing with FirstEnergy that the changes we are making to permit utilities to utilize IVR represents a cost-saving opportunity for utilities. Likewise, as EAP points out, our changes to allow electronic 3-day termination notices provide benefits including reduced costs associated with paper, printing, reproduction, storage, and postage. Water utilities that operate wastewater systems will also benefit under the new regulations because the rules will now be the same for both types of utilities—wastewater will no longer have different rules.
We have also listened to the objections about costs and have modified our proposals accordingly. One of the few areas where utilities were able to provide estimates and express concerns was our proposed third-party switching notices. In response, we have dropped this proposal from this proceeding. Likewise, in response to PPL's concerns with the costs of obtaining customer consent relating to electronic notices, we have agreed to consider customer privacy and consent issues in a separate collaborative proceeding that will allow us to vet the issue and related costs more comprehensively.
Finally, we note that the majority of proposals found in this rulemaking are simply codifying the requirements in the revised Chapter 14. Given that Chapter 14 requirements are a matter of law, they must be complied with, regardless of objections. Utilities have had to comply with these revisions since 2015, so any resulting compliance costs are likely to have already been incurred, so additional costs should be limited.
Supplier Consolidated Billing
Consistent with its Petition for Implementation of Electric Generation Supplier Consolidated Billing8 (''SCB Petition'') filed by NRG on December 8, 2016, NRG's comments and proposed revisions are primarily aimed at accommodating and facilitating the implementation of supplier consolidated billing (''SCB''). Under SCB, customers would have the option of receiving a consolidated bill from their electric generation supplier (''EGS''), containing all of the EGS charges, along with the tariffed delivery charges of the electric distribution company (''EDC''). In its comments, NRG urges the Commission to take advantage of this Chapter 56 rulemaking proceeding to establish a clear set of rules governing SCB so that no doubts exist about the enforceability of requirements to EGSs and EDCs. Additionally, as the current provisions of Chapter 56 set forth the rules applicable to deposits, payment arrangements, termination, reconnection and disputes, they can be easily tailored for use in the SCB context by simply adding the phrase ''or billing entity'' in situations that currently assume that the public utility will serve as the only consolidated billing entity. (NRG at 1-2).
NRG proposes a new subchapter outlining the requirements that would be applicable to EGSs and EDCs in the SCB context. It consists of four sections, with proposed § 56.471 establishing the availability of SCB in the electric industry by proclaiming that EGSs may render a consolidated bill to customers that contain charges for basic services, including the EDC's distribution services and the EGS's commodity services, and any charges for the EGS's non-basic services. The remaining three sections (§§ 56.472—56.474) propose numerous stringent financial and technical requirements that an EGS would need to fulfill in order to be a billing entity, establish the duties of the EGS in the billing entity role, and outline the duties of EDCs when an EGS is performing consolidated billing functions. (NRG at 6-7).
NRG further believes that it is necessary for the Commission to clarify the applicability of various Chapter 56 provisions to energy suppliers. While NRG recognizes that the Commission currently requires EGSs and NGSs to comply with Chapter 56, as applicable, the majority of the provisions of Chapter 56 relate to deposits, bills, termination, payment arrangements and reconnection, which are not applicable to entities that are not rendering bills or making decisions to terminate accounts. In the course of identifying the provisions of Chapter 56 with which billing entities (other than public utilities) would need to comply, NRG thinks that clarity around the applicability of Chapter 56 rules would likely facilitate regulatory compliance by energy suppliers. (NRG at 2-3).
RESA, in its comments, fully supports the implementation of SCB in Pennsylvania as an additional billing option for suppliers. Enabling suppliers to directly bill their customers through the implementation of SCB is an important and necessary evolution of the retail electricity marketplace which will allow EGSs to begin to deliver on the original promises of technological and services-related innovation that were an integral part of the Electricity Generation Customer Choice and Competition Act. RESA contends using this opportunity to modernize the existing Chapter 56 regulations to accommodate suppliers billing their own customers is logical and forward-looking.
In addition, RESA agrees with NRG's proposal to revise the existing regulations to clarify the applicability of various Chapter 56 provisions to energy suppliers. These revisions would provide welcome clarity to suppliers attempting to decipher which specific sections of Chapter 56 apply to them. The Commission directs suppliers to comply with Chapter 56 ''as applicable'' but the vast majority of the sections in Chapter 56 are not applicable to entities that do not bill or terminate service. As such, it can be difficult for suppliers to determine whether a specific section is applicable to them and, if so, how it applies to the particular service they are offering customers. This lack of certainty and clarity about regulatory requirements can create compliance difficulties and increase the time needed for staff to provide assistance and guidance to companies about the Commission's expectations. (RESA Additional Comments at 6-7).
LICRG opposes NRG's attempts to insert the issue of SCB into the Chapter 56 rulemaking. The Electric and Natural Gas Choice Acts each clearly provide that, throughout the competitive market transformation, ''[t]he Commonwealth must, at a minimum, continue the protections, policies and services that now assist customers who are low-income to access and maintain electric service.'' The implementation of SCB would undermine current statutory, regulatory, and programmatic protections for vulnerable consumers, in direct contradiction with the Competition Acts. If the Commission were to consider regulations which impact SCB, LICRG urges the Commission to do so in a separate proceeding to allow proper input from the public on the critical impact that such a shift would have on Pennsylvania's consumers. LICRG believes that it would be inappropriate to adopt NRG's proposed language in a final rulemaking without first vetting the topic with the public. (LICRG Additional Comments at 45—47).
EAP believes that the Electricity Generation Customer Choice and Competition Act does not provide for SCB as a customer billing option nor does it grant statutory authority to mandate the implementation of SCB. Sections 2807(c) and (d) of the Competition Act clearly provide that EDCs are to remain responsible for customer service functions, including billing for distribution service, meter reading, collections and complaint resolution. EAP asks the Commission to dismiss this attempt to circumvent the legally-established system of utility billing. (EAP Additional Comments at 9-10).
Duquesne submits that NRG's attempt to bootstrap suggested changes to accommodate SCB here is not only beyond the scope of this proceeding but is also illegal, as the Electricity Generation Customer Choice and Competition Act in no way contemplates or allows for SCB. (Duquesne Additional Comments at 12-13). Likewise, PPL submits that NRG's proposals regarding Chapter 56 should not be considered as part of this rulemaking. (PPL Additional Comments at 9).
FirstEnergy is opposed to NRG's proposed changes to Chapter 56—pointing to Chapter 14 which imposes a number of non-delegable duties on ''public utilities'' including retaining customer deposits; establishing and maintaining payment arrangements; termination and reconnection of service, as well as all related functions; payments to restore service; formal and informal complaints; and providing customer assistance information where a customer is seeking a payment arrangement. Most of these functions are inextricably linked to a public utility's ability to bill a customer for its services. A public utility cannot place a customer on a payment arrangement where the public utility is not the entity responsible for billing the customer. Similarly, a public utility cannot implement the termination or reconnection process without the ability to bill and receive payment from customers. Further, FirstEnergy points to Section 2807(d) of the Competition Act, which mandates that ''[t]he electric distribution company shall continue to provide customer service functions.'' The legislature's use of the term ''shall'' leaves no doubt that the legislature intends for public utilities to be the entities responsible for customer service functions. A utility's customer service functions primarily include maintaining a customer's billing account.
While FirstEnergy believes that the illegality of NRG's proposed changes to Chapter 56 warrants outright rejection of NRG's comments in this proceeding, FirstEnergy also points to additional implementation challenges as well. If EGSs are involved in the billing process, utilities' termination and restoration procedures would become significantly more complicated, if not impossible. Utilities would be required to be in constant communication with EGSs regarding changes to each customer's account, including payments, payment arrangements, and medical certificates, all of which could have a different impact on a customer's termination or restoration process. Each of these changes creates different termination and restoration terms and timelines. First Energy continues stating that involving an EGS in this process would add unnecessary complexity into this process, likely increasing the chance of errors in the termination and reconnection process to the disadvantage of customers. For all the foregoing reasons, FirstEnergy opines that NRG's proposed changes to Chapter 56 should be disregarded. (FirstEnergy Additional Comments at 20—22).
Discussion
First, we note that at the Commission's January 18, 2018, Public Meeting, the Commission rejected NRG's petition to implement SCB.9 However, the Commission motion that rejected NRG's petition also established a proceeding to further consider SCB in a more general, wider context.10 This proceeding first called for comments from interested parties by May 4, 2018. This was followed by en banc hearings on June 14, 2018, and July 12, 2018, over which the Commissioners presided and that featured testimony from suppliers, utilities, consumer advocates and other interested parties. Parties then had an opportunity to file reply comments by August 24, 2018.
Given that SCB is now the subject of a separate, ongoing proceeding, we agree with LICRG, EAP, PPL, Duquesne and FirstEnergy that further consideration of it in this proceeding is neither appropriate nor necessary at this time. Addressing SCB in this Chapter 14/Chapter 56 proceeding could give the appearance of inappropriately pre-judging the ongoing SCB proceeding at Docket No. M-2018-2645254. Depending upon the outcome of the SCB proceeding, the Commission can always consider revisions to Chapter 56 later, along with other implementation issues should the decision be made to proceed with SCB.
In response to NRG's and RESA's request that we revise and clarify the applicability of Chapter 56 regulations for suppliers, we note that we received few if any comments in response to this proposal. Accordingly, we do not think that this proposal has been properly vetted by other stakeholders. We note that even if SCB is not pursued, the Commission can still initiate a proceeding to consider the applicability of Chapter 56 provisions in the context of competitive suppliers. Such a proceeding would provide all parties an opportunity to offer detailed comments.
Third-Party Notification of Supplier Switching
In our July 12, 2017 Order Seeking Additional Comments11 we noted § 56.131 (and the identical § 56.361) that provides for a third-party to receive copies of various collection notices, including past due and termination notices. The intent of this notification is to provide information to a third-party that may be positioned to aid the third-party in assisting the customer with a collections-related problem. We asked parties to comment on a proposal to use this same mechanism in the context of energy supplier switching in instances where a third-party may want to be alerted as to a customer's supplier selections to help the customer with the process of selecting an energy supplier. We proposed adding §§ 57.173 (relating to Customer contacts the EGS to request a change in electric supply service) and 59.93 (relating to Customer contacts with NGSs) confirmation notices to the list of notices that a utility will provide under §§ 56.131 and 56.361. In addition, we proposed revising the enrollment form template currently in use and using a separate form for electric and natural gas distribution companies.
LICRG appreciates the proposed modification of § 56.131, noting that there are many vulnerable customers, particularly elderly and/or disabled individuals, who may have difficulty managing certain utility matters, and who should be able to designate a trusted third-party to assist them. However, they believe that the Commission should provide clear guidance concerning who can be listed as a third-party and that under no circumstances should a supplier or other commercial, marketing, or for-profit business be listed as the third-party. (LICRG Additional Comments at 15—17).
The OCA very strongly supports this proposal and submits that third-party notification of supplier switching will provide a valuable and important consumer protection. The OCA notes that it hears from many consumers who have trouble navigating the competitive energy marketplace and may have switched to a competitive supplier without knowing it or without fully understanding the terms. The OCA believes that the Commission's proposal to add supplier switch confirmation notices to the list of notices provided to an authorized third-party is an excellent proposal that will help to prevent the harms associated with unauthorized or misunderstood switching among this subset of customers. (OCA Additional Comments at 7-8).
RESA supports the intent of this proposal and the right of customers to elect to share information, such as a decision to shop, with designated third parties. RESA suggests some language changes intended to make the revised regulation paragraph more consistent with the existing authorization form set forth in Appendix E. More specifically, the initial paragraph of the existing form is addressed to the customer and explains the roles and responsibilities for the third-party. In contrast, the newly added paragraph appears to be directed to the third-party designee. RESA's proposed revisions add language directed to the customer with an explanation of what the third-party designee would receive. In addition, a new sentence is added to more clearly state that only the customer of record or a person authorized to make changes to the customer's account can address any concern or potential problem with the decision to elect a supplier or return to default service. (RESA Additional Comments at 2-3).
NEM believes the proposal poses logistical issues that are not readily apparent on its face and that could lead to negative unintended consequences including consumer confusion and unwarranted consumer complaints. NEM believes that the logistical issues include restricting account changes to those being made by authorized persons, maintaining privacy of customer information, and adequate supplier notification of account termination, among others. NEM suggests that the Commission first convene the stakeholders to review, discuss and resolve these logistical issues. NEM states that there is an important difference between the current third-party notice that is sent regarding collection activity as opposed to the proposed third-party notice of supplier switching activity. In the case of a third-party's receipt of notice of collection activity, if the third-party receives the collection notice and responds by taking action and paying a past due balance on behalf of the customer, the net result is positive—the customer's account is maintained and restored to good standing. In contrast, under the proposal at issue, when a third-party notice is sent regarding supplier switching activity, a conceivable outcome is that the third-party will seek to terminate the competitive supplier relationship, whether they are authorized to do so and permitted under the regulations. The third-party may become upset and confused if they are unable to cancel the competitive supplier transaction and then lodge a complaint, notwithstanding that no party engaged in improper conduct. Additionally, the customer's account with the supplier could be unjustifiably ended, the customer could lose the benefit of its bargained for products and services and perhaps incur an early termination fee if the rescission period has expired. Communication protocols and dispute procedures also need to be considered, along with the rules that require suppliers and utilities to respect the privacy and confidentiality of customer account information. (NEM Additional Comments at 2—7).
PEMC understands and appreciates the intent behind these proposals: to ensure that customers, particularly customers in demographics with a greater degree of vulnerability, can be as protected as possible. In cases of a relative of a customer, or an individual with power of attorney or similar authority on behalf of a customer, the proposed revisions seem reasonable and in the customer's interest. Particularly in cases in which a customer's ability to manage their own affairs is limited and has already been recognized as such through the designation of power of attorney, any proposals for changes to a customer account should of course be handled by the designated individual. PEMC also views as appropriate the providing of notifications of a supplier switch when a family member may not have power of attorney but does provide informal assistance to a customer who may need additional help with making business decisions.
PEMC is concerned however, that unlike billing and collections notices, notification of a supplier enrollment transaction is a written confirmation of a positive choice made by the customer, which is already subject to the sales, marketing, enrollment, and verification regulations of the Commission, as well as the contract rescission period. The involvement of a third-party, particularly one that does not have power of attorney or any legal authority to negotiate on a customer's behalf, could add confusion to the supplier-customer relationship. It also adds ambiguity to the supplier responsibility to determine the legal authority of any third-party that attempts to communicate with a supplier on behalf of a customer after receiving an enrollment transaction notification. PEMC is also concerned with the language of paragraph (3), which explicitly relates to the utility encouraging community groups to receive third-party notices related to billing and collections in that utilities could interpret the changes proposed in these sections to require them to solicit community groups to accept third-party notifications of supplier change confirmation notices. PEMC asks that the proposed notifications of supplier change confirmation notices be limited to immediate family members over the age of 18, or individuals with legal authority, such as power of attorney, to act on behalf of a customer. (PEMC Additional Comments at 2—4).
EAP does not disagree with the Commission's proposal in principle—customers may in fact want or need additional assistance in navigating the energy marketplace. However, it believes the logistics of this proposal have not been thoroughly vetted. For example, utility information systems typically separate the functions that handle billing and termination notices from the portion that handles notices related to suppliers and switching. Integration of these systems so that one person could be a designated recipient of both billing and supplier notices may come at a cost that is unbalanced by the benefit provided. EAP would also recommend the Commission evaluate whether the option to provide supplier switching notices to third parties could be made without mandating their inclusion in regulation. (EAP Additional Comments at 5-6).
PECO does not believe that the benefit of this proposal would be sufficient to warrant the IT costs. To estimate the scope of customers who might benefit from such a program, PECO first determined the number of PECO residential customers who both shop and subscribe to third-party notification. Approximately 3,000 customers (2/10ths of 1% of the residential population) fit those criteria and thus would receive additional notices under this proposal. PECO concludes that, on its system, only a very small percentage of its residential customers, perhaps 1/10th of 1% of the customer base, would have a need or desire for this additional service. The IT change costs, on the other hand, would be system-wide and paid for by the entire customer base. While PECO has not performed a scope estimate for the IT costs of making such a change, its experience is that such changes can easily cost in the hundreds of thousands of dollars. (PECO Additional Comments at 3-4).
FirstEnergy does not oppose this proposal, but requests that the implementation details and costs associated with this change be permitted to be recovered on a full and current basis through FirstEnergy's Default Service Support Riders, or other similar mechanisms, as appropriate for each utility. (FirstEnergy Additional Comments at 11-12).
PPL is not opposed to this proposal. If this proposal were adopted, however, PPL would need to develop an automated process that would send these notices out to the designated third-party and estimates that it would cost $25,000 to develop this automated process. PPL further notes that there would be mailing costs as well. (PPL Additional Comments at 3).
Duquesne recognizes that this proposal could be a valuable service for certain customers but has some concerns. First, the proposed notification, even if received by a third-party, does not prevent an unwise or unlawful switch that has already occurred. For example, receipt of a copy of the supply change confirmation notice by a third-party does not mean that the third-party designee can prevent the switch. The third-party designee has no authority to block the supplier transaction and could, at best, convince the customer to initiate a switch to default service or to another supplier. Depending on the terms of the supplier contract, a customer could be subject to termination fees or other costs to reverse a transaction. Secondly, various individuals or agencies serve as designated third parties receiving notifications of termination or delinquency notices. Just because one is a third-party recipient of notifications related to termination, it does not automatically follow that those individuals or agencies would also want supplier change confirmation notifications. Duquesne also notes that its current billing system is not able to bifurcate the types of notices to be provided to a third-party. By way of general cost estimates, changes to the billing system for moderately complex operations can cost upward of $1 million for each change and can take over a year to develop. Currently, Duquesne Light provides third-party notifications to approximately 2,100 customers, which is only approximately 0.003% of its customers. When evaluating the costs of implementing technical changes compared to the small number of customers who would potentially utilize this mechanism, Duquesne does not believe that this should be a mandated regulatory requirement. (Duquesne Additional Comments at 6—9).
Columbia submits that, although it is possible for it to revise its current procedures regarding third-party notifications to add supplier switch notifications, it will incur costs in order to do so, and therefore, Columbia does not support the addition of this third-party supplier switch notice. Less than 1% of Columbia's active residential customers maintain third-party notifications. Therefore, the benefits to a small percentage of customers to implement additional notifications to third-parties would be greatly outweighed by the costs to add such notifications. Third-party notifications come from its credit/collections database and if Columbia had to send supplier switch confirmation notifications, those notices would come from its Choice program database, which is separate and distinct from its credit/collections database. Columbia has estimated the programming cost to implement that additional notice to be anywhere from $4,850 to $9,700. (Columbia Additional Comments at 5—8).
NFG believes that while there may be some justification for this kind of proposal, the cost burden of changes to the notification requirements outweighs its benefit. Many utility systems are not formatted to make this kind of notification happen readily and could require significant modifications to systems. Furthermore, this would likely only positively impact a very small number of customers. NFG reports that only 0.6% of customers would benefit from this change. (NFG Additional Comments at 3-4).
Discussion
The parties provided a mix of comments: some that were very supportive, some that were supportive but conditional, and some that were not-at-all supportive. In considering and weighing the comments, while we agree with OCA that our proposed revisions to §§ 56.131 and 56.361 would provide a valuable and important consumer protection, on balance we conclude that this is a proposal that would be best addressed in a different proceeding. We agree with EAP that the logistics of this proposal have not been thoroughly vetted. There are too many unanswered questions raised by the utilities and the suppliers, including the impact on utility customer databases, who could qualify for third-party status, and the ability of those third-parties to interfere with the supplier switching process. We are also persuaded by the comments of PECO, Duquesne, PEMC and NEM that supplier confirmation notices and utility collection notices are distinct, very different things and, while consumers may want to use third-party notification for one of these things, it is very possible they would not want to do both. We think this type of proposal is better vetted in a proceeding specifically addressing the electric supplier switching regulations in Chapter 57 and the natural gas supplier switching regulations at Chapter 59. This would allow parties and the Commission to consider third-party supplier confirmation notices in the proper context.
§ 56.2. Definitions.
We proposed revising the definitions of applicant, customer, and public utility to reflect the revised Chapter 14 definitions at 66 Pa.C.S. § 1403. We also proposed adding the definitions of creditworthiness and medical certificate to this Section because they now appear in the revised 66 Pa.C.S. § 1403. We proposed changing the definition of payment agreement to payment arrangement to reflect the change in terminology in Chapter 14. We proposed changing this term throughout subchapters B—K wherever the term payment agreement was used. We proposed adding the definitions of small natural gas distribution utility, steam heat utility and wastewater utility to this section to reflect that these entities are now covered by subchapters B—K (see above concerning Section 56.1, Statement of purpose and policy). Because these entities are now all considered public utilities by Chapter 14 and are no longer treated distinctly, we changed the term ''utility'' to ''public utility'' throughout the chapter. We also proposed adding a definition of physician assistant since Chapter 14 now permits the filing of medical certificates by physician assistants.
AMR—Automatic meter reading
OCA commented that the Commission should update the old definition of AMR to include advanced metering infrastructure (AMI) due to new technology being deployed by utilities throughout the Commonwealth of Pennsylvania. OCA asserts that AMI provides a wide variety of updated functionalities that should be included in Chapter 56 regulations. (OCA at 6-7).
Discussion
In the NOPR, we made no proposal to change this definition. § 56.2 defines AMR—Automatic meter reading as, ''Metering using technologies that automatically read and collect data from metering devices and transfer that data to a central database for billing and other purposes,'' and states that, ''Meter readings by an AMR shall be deemed actual readings for the purposes of this chapter.'' The definition of AMR includes AMI in that AMI is a metering technology. Section 56.2 definitions apply to the entire chapter—thus this definition that states that meter readings by an AMR shall be deemed as actual readings for the purposes of this chapter would also apply to § 56.12. We do not see a need to change this language.
Applicant and Customer
Duquesne and IRRC suggest that the definition of ''Applicant'' and ''Customer'' set forth in sections §§ 56.2 and 56.252 be changed for consistency. (Duquesne at 11; IRRC at 2).
Discussion
As noted previously in this rulemaking order, § 56.252 is located in the PFA subchapter which is not subject to Chapter 14. The definitions will not be consistent since § 56.2 has been modified pursuant to Chapter 14 and the PFA subchapter is specifically excluded.
Billing month
In the NOPR, we proposed revising the definition of billing month to allow short-period bills in instances where a customer's change of commodity supplier necessitates the issuance of a short-period bill in order to effectuate a timely switch of supplier. Recent regulatory changes intended to accelerate the switching of electric generation service now make it possible to switch commodity service in as little as three business days. See 52 Pa. Code §§ 57.173, 57.174 and 57.180 (relating to customer contacts the EGS to request a change in electric supply service; time frame requirement; and implementation). Some utilities, as part of the switching process, will issue a short-period bill to conclude the customer's connection with his or her current supplier, so that billing with the new supplier can start within the three-business day timeframe. The Commission has already issued temporary waivers of the current § 56.2 definition of billing month to facilitate this process,12 and we believe it is necessary to codify this change in billing procedures to eliminate the need for repeated waivers in the future.
Discussion
We did not receive any comments on this proposed definition and will keep the billing month definition as proposed.
Clear evidence, Court of competent jurisdiction, Domestic violence
IRRC commented that the Commission is adding the phrase ''A court of competent jurisdiction in this Commonwealth which provides clear evidence of domestic violence against the applicant or customer,'' from the revised statute at 66 Pa.C.S. § 1417 throughout the regulation and that commentators had requested clarification of portions of the phrase including ''clear evidence,'' ''court of competent jurisdiction,'' and ''domestic violence.'' IRRC commented that the public safety may not be adequately protected if these terms are not made clear to the regulated community and public affected. (IRRC at 1-2).
Discussion
As discussed later, LICRG, Joint Commentators, OCA and Duquesne all advise the Commission to form a working group on this section concerning the revised 66 Pa.C.S. § 1417 where these matters can be discussed by all interested parties. The definitions of these three terms should also be addressed in this working group.
Creditworthiness
OCA supports the proposed addition of the definition for creditworthiness that the Commission proposed which is identical that the one that is in the revised 66 Pa.C.S. § 1403. (OCA at 7).
Discussion
The proposed definition incorporated the definition as stated in the revised Chapter 14 at 66 Pa.C.S. § 1403. We will maintain the statutory definition of creditworthiness as proposed.
Fraud
PPL proposed at page 13 a definition for fraud. Section 56.35(b)(1) provides a four-year statute of limitations when seeking to collect an outstanding balance from an applicant, however this does not apply if the balance includes amounts that the utility was not aware of because of fraud or theft on the part of the applicant. PPL proposed that fraud be defined as:
Deceitful actions used by individuals to acquire and/or maintain utility service. This includes the use of false identities and the making of false or misleading statements for the purpose of avoidance of bill payment.(PPL at 13).
LICRG described PPL's proposed definition for fraud as ''sweepingly broad.'' LICRG further stated that it was not consistent with Pennsylvania law, which requires proof of each of the following elements: a misrepresentation, a fraudulent utterance thereof, an intention by the maker that the recipient will thereby be induced to act, justifiable reliance by the recipient upon the misrepresentation, and damages to the recipient as the proximate result. (LICRG Additional Comments at 7-8). LICRG asserted that under PPL's definition of fraud, the customer's intent, a critical element of fraud, would be wholly disregarded. LICRG requested that the Commission reject utilities' attempts to relax long-standing rules of law governing the elements of fraud, especially since accusations of fraud can have consequences impacting a household's ability to maintain utility service as well as housing and employment. (LICRG Additional Comments at 8).
Discussion
Due to concerns raised by LICRG regarding the definition of fraud as proposed by PPL, we are reluctant to provide a definition for fraud in this rulemaking. PPL also acknowledged that its proposed definition was outside of the amendments to Chapter 14. The definition of fraud, to the extent that one is necessary, could be addressed in a subsequent rulemaking of Chapter 56, when revisions are next proposed to this Chapter. Furthermore, as noted in the discussion of § 56.113, the parties have not made a convincing argument that fraud is a problem. We conclude that a definition for fraud is not necessary and is outside of the scope of this rulemaking.
Medical certificate
Columbia and EAP suggest including the medical professional's license number on the medical certificate. Columbia asserts that this will enable it to confirm that each medical professional is legally licensed to practice medicine in this Commonwealth. Columbia further comments that this will reduce the likelihood of fraudulent requests. Columbia comments page 2-3. EAP also states that the medical certificate should be on the medical professional's letterhead or other official paperwork. (EAP at 14).
LICRG and CAC recommend that the Commission reference § 56.113 in its definition of medical certificate to clarify the substantive requirements of the medical certificate form. (LICRG at 8, CAC at 5-6).
LICRG further requests that since § 56.113 allows both customers and applicants to submit medical certificates, that the definition of medical certificate also include applicants. LICRG asserts that this is consistent with Chapter 14 at 66 Pa.C.S. §§ 1406(f) and 1407(b). (LICRG at 8-9).
The CAC supports the development of a statewide model medical certificate form that would be developed through a collaborative as suggested in the Commission's Chapter 14 Implementation Order, Docket No. M-2014-2448824, at 10 (July 9, 2015). (CAC at 5). CAC stated further that ''some members of the [CAC] have heard from medical providers that it would facilitate their ability to issue medical certificates if there were a form that was available for download either on the utilities' website or the website of the Commission.'' CAC recommends then placing the form developed in collaboration on the Commission website as well as encouraging utilities to place the form on its websites. (CAC at 5-6).
EAP recommended clarifying the language for medical certificates by combining the § 56.2 definition of medical certificate with the § 56.113 provision regarding medical certificates. (EAP at 13).
IRRC suggested that the definition be consistent with the statutory definition and noted that the statutory definition of the term ''medical certificate'' begins with the phrase, ''in a form approved by the commission. . .'' 66 Pa.C.S. § 1403. (IRRC at 5).
Discussion
The definition of medical certificate that we proposed incorporates the statute and includes the phrase, ''in a form approved by the commission. . .'' We agree with LICRG and CAC's recommendation to reference § 56.113 in the definition of medical certificate and have added that reference to the definition. We agree with EAP that the definition of medical certificate and § 56.113 should be consistent and have reviewed both for consistency. We added the cross reference to § 56.113 to provide further consistency and clarity. With regard to IRRC's concerns that the Commission explain how the medical certificate provisions are reasonable and in the public interest, we have carefully reviewed the parties' comments as well as the past history of the medical certificate provisions in Chapter 56 with regard to medical certificates and have provided a reasonable definition consistent with amended Chapter 14 and the concerns of the parties. (See the additional discussion of § 56.113 regarding parties' comments and the history of the medical certificate sections—reasonableness discussion).
Nurse practitioner, Physician, Physician assistant
IRRC commented that it did not find the Commission's definitions for ''physician assistant,'' ''nurse practitioner'' and ''physician'' to be completely consistent with the respective professional Boards' definitions which can introduce uncertainty to the required qualifications. To address that concern, IRRC suggested that the Commission use cross-references to the appropriate definitions in the professional Boards' regulations instead. IRRC further noted that Act 155 uses the term ''nurse practitioner'' and that the Professional Nursing Law includes several types of nurse licensures. IRRC suggests that, ''there appears to be a presumption that the professional that can sign a medical certificate is a licensed Certified Registered Nurse Practitioner.'' IRRC suggests that the Commission clarify which licensure(s) under the State Board of Nursing qualify under the Public Utility Code to sign medical certificates. (IRRC at 2).
The Health & Housing Coalition and EAP also suggested changing the current definitions of nurse practitioner and physician in addition to making changes to the proposed definition of physician assistant. For physician, the definition should also include osteopathic medicine, and for the other two definitions, EAP also suggested cross-referencing to the appropriate definitions in the professional Boards' regulations. EAP suggested adding a new definition to § 56.2 for the term authorized medical certificate signatory—a physician, nurse practitioner, or medical physician assistant. EAP further proposed that the qualifier term ''medical'' be included before physician assistant to distinguish the medical professionals appropriately licensed to complete these forms as defined by the state board of licensure. (Health & Housing Coalition Additional Comments at 3-4; EAP at 12).
OCA suggests that the Commission revise its definition of physician assistant by shortening it to only reference the appropriate licensing regulation to ensure consistency and clarity with the appropriate state board of medicine regulations. (OCA at 8). PAWC also suggests making the definition of physician assistant consistent with the Pennsylvania licensing laws and regulations. (PAWC at 2).
Joint Commenters and LICRG also suggest changing the definition of nurse practitioner in addition to the added definition for physician assistant. Both the Joint Commenters and LICRG propose simplifying the definitions by referring directly to the Chapter of the Pennsylvania Code which pertain to these professionals. (Joint Commenters at 3-4; LICRG at 10-11).
Discussion
We agree with the commentators and are revising the definitions of these three terms, nurse practitioner, physician, and physician assistant, to be consistent with the respective state licensing laws and regulations. We agree with IRRC's suggestion that the professional that can sign a medical certificate is a Certified Registered Nurse Practitioner and have defined Nurse Practitioner to include that profession.
Small natural gas distribution utility, Steam heat utility and Wastewater utility
We did not receive any comments on these proposed definitions.
Discussion
These definitions were taken directly from the amended Chapter 14. We will keep these definitions the same as proposed.
Finally, we note that NRG proposed various new definitions and revisions to the existing definitions at § 56.2, proposing to revise Chapter 56 to include the implementation of supplier consolidated billing (SCB). (NRG at 11—14).
Discussion
As indicated previously in this order, SCB is outside of the scope of this rulemaking. We will defer all SCB-needed revisions to another proceeding.
§ 56.12. Meter reading; estimated billing; customer readings.
We proposed adding a new paragraph (6), Verification of automatic meter reading, to incorporate the new requirement at Section 1411 (relating to automatic meter readings) that utilities verify meter readings at the request of the customer.
Columbia agrees with the Commission's proposed language. (Columbia at 4).
OCA supports the addition of this provision, with one modification. As discussed regarding the definition at § 56.2, the OCA suggests that the Commission either update the definition of AMR to include AMI or add a separate new definition of AMI that should be reflected throughout these regulations. Consistent with that recommendation, the OCA submits that consumers should have the same right to verification for automatic meter readings obtained through AMI as is being included in this section for AMR. If the definition of AMR in § 56.2 is updated to include AMI, then automatic meter readings obtained through AMI will receive the same right of verification of automatic meter readings at the customer's request. If a separate definition of AMI is added to § 56.2, then language indicating that automatic meter readings obtained through AMI are also subject to verification on the customer's request will need to be inserted into this section. This modification will help to ensure that the regulations reflect the various metering technologies that are currently in use in the Commonwealth, and that customers have the right to verify automatic readings at their request. (OCA at 8).
EAP and FirstEnergy are concerned that the proposed language does not include the introductory statement from Section 1411 or from the present definition of AMR—automatic meter reading at § 52.1(iii) that reads, ''All readings by an automatic meter reader device shall be deemed actual readings for the purposes of this title.'' (EAP at 3; FirstEnergy at 6).
FirstEnergy also recommends that the Commission eliminate the postcard requirement in § 56.12(i) and that the Commission should consider changes at § 56.15(2) to provide utilities with the option to identify total monthly usage on customers' bills instead of customers' beginning and ending register reads. (FirstEnergy at 7—9).
Discussion
AMR-Automatic meter reading is defined in § 56.2 Definitions.
AMR—Automatic meter reading—(i) Metering using technologies that automatically read and collect data from metering devices and transfer that data to a central database for billing and other purposes.(ii) The term does not include remote meter reading devices as defined by this section.(iii) Meter readings by an AMR shall be deemed actual readings for the purposes of this chapter.The definition of AMR includes AMI in that AMI is a metering technology. Section 56.2 definitions apply to the entire chapter. The definition states that meter readings by an AMR shall be deemed as actual readings for the purposes of this chapter which would include § 56.12. Therefore, we will keep our proposed language.
With regards to FirstEnergy's proposal, the Commission declines to eliminate the postcard requirement in § 56.12(i). Section 56.12(i) applies to not only electric and gas distribution utilities, but also wastewater and water distribution utilities. Not all of these public utilities possess smart meters or AMR's. Also, with advances in technology and smart meters being deployed estimated meter readings will be less likely to occur and postcards will be needed and used less. In addition, identifying the beginning and ending meter readings is an important piece of information for the customer.
§ 56.17. Advance Payments.
LICRG submits that the prepayment meter regulation, 52 Pa. Code § 56.17(3), is unnecessary, and contrary to statutory intent. As such, it should be eliminated from the Commission's regulations. Accordingly, the LICRG recommend that § 56.17(3) be eliminated and that section be reserved for future regulatory use. (LICRG at 11—18).
PPL disagrees with these recommendations. PPL believes that there may be interest among all customers for this service, including lower income customers. While PPL acknowledges that there are parties that have concerns with lower income customers participating in advanced payment programs, the company submits that this rulemaking proceeding is not the appropriate proceeding in which to address these concerns. (PPL Additional Comments at 8).
Discussion
To date, no utility has utilized these provisions to offer pre-payment metering, so unfortunately, we have no practical experience to rely upon when assessing the need to revise this section. There is a pre-payment plan proceeding that is currently being considered by the Commission.13 Given that this matter is currently being considered elsewhere by the Commission, we are declining to make any changes to this regulation at this time.
Applications, Security and Deposits
Sections §§ 56.32 through 56.57 address the residential application procedures and standards for establishing security deposits. The revised Chapter 14 made significant changes to these rules, which prompted us to propose extensive revisions to these sections.
§ 56.31. Policy Statement.
Duquesne suggested that the Commission take this opportunity to update the Policy Statements contained in this Section and § 56.281 to include the broader scope of protections that have been afforded to citizens of the Commonwealth in other areas. Specifically, Duquesne recommended that we update this language to reflect Governor Wolf's Executive Order, signed on April 7, 2016, which provide protections for employment and contracting within the Commonwealth. (Duquesne at 11-12).
Discussion
We received no other comments on the Policy statement. We agree with Duquesne that the Policy statement should be updated with the Governor's Executive Order and have revised these sections to incorporate these protections into our Policy Statements.
§ 56.32. Security and cash deposits.
We proposed to revise Subsection (a) and to add a new Subsection (d) to align with the new deposit payment timeframes provided for in Section 1404(a) (related to cash deposits and household information requirements). Additionally, we proposed revising Subsection (a)(2) to note that creditworthiness standards must be provided in a Commission-approved tariff, per Section 1404(a)(2). We proposed a new Subsection (e) to align with the new Section 1404(a.1) prohibition on customer assistance program (CAP)-eligible customers and applicants paying deposits.
§ 56.36. Written procedures.
We proposed revising Subsection (b) to include incorporation into the utility's written credit procedures the deposit exception for CAP-eligible applicants, per Section 1404(a.1). We also proposed including in the procedures the availability of alternative credit standards, pursuant to Section 1417, for applicants with a court order issued by a court of competent jurisdiction in this Commonwealth which provides clear evidence of domestic violence. We proposed revising Subsection (b)(1) to include a requirement that utilities provide this information to applicants in writing when credit is denied.
§ 56.38. Payment period for deposits by applicants.
We proposed revising Subsection (a) to align with the new deposit payment timeframes provided for in Section 1404(a) that an applicant has up to 90 days to pay the deposit.
§ 56.41. General rule.
We proposed adding a new Subsection (4) to align with the new 1404(a.1) prohibition on CAP-eligible customers and applicants paying deposits.
§ 56.42. Payment period for deposits by customers.
We proposed revising Subsection (d) to align with the new 90-day deposit payment timeframes provided for in § 1404(a).
§ 56.53. Deposit hold period and refund.
We proposed eliminating the 24-month deposit retention limit in Subsection (a) to align with the same elimination in Section 1404(c)(1).
§ 56.57. Interest rate.
We proposed changing the mechanism for determining the interest rate applied to security deposits to align with the change at Section 1404(c)(6).
OCA believes that the Commission should clarify that eligibility for CAP in this context is based on income eligibility, not on eligibility based on some other criteria. Many low-income individuals may be eligible for CAP based on their income but may not actually be enrolled in CAP for a variety of reasons. For example, many people may be income-eligible but are not enrolled in CAP because their ''affordable bill'' under CAP is greater than their actual bill.
OCA notes that the proposed revision to § 56.38 states that an applicant that is required to pay a deposit ''shall have up to 90 days to pay the deposit in accordance with Commission regulations.'' (Emphasis added). However, it is not clear to which specific Commission regulations are being referred to in this section. The OCA submits that, instead of a vague reference to ''Commission regulations,'' this language should be revised to cite specific regulations.
Regarding § 56.42(d), OCA supports allowing customers to pay the deposit in installments, with ''50% billed upon determination by the public utility that the deposit is required; 25% billed 30 days after the determination; and 25% billed 60 days after the determination'' as this is consistent with previous Commission rulemakings. Finally, the OCA submits that § 56.53(b) should be modified to clarify that the relevant time period concerning refunding a deposit is any 12 consecutive months, and that this 12-month period is not tied to a calendar year. For example, if a customer pays in full and on time in January, but misses a payment in February, the 12-month clock should start again in March. (OCA at 9—12).
While a step in the right direction, LICRG asserts that the Commission's proposed revisions are insufficient to effectuate the intent of the General Assembly to protect low income households from cash deposits. They ask that the proposal be revised to ensure that the deposit prohibition includes both applicants and customers since the plain language of Section 1404(a.1) applies to both applicants and customers.
LICRG also asks the Commission to clarify that the cash deposit prohibition is based on ''household income.'' As set forth in Chapter 14, the exemption applies to any customer or applicant who is confirmed to be ''eligible'' for a customer assistance program. LICRG asserts that the prohibition on cash deposits should apply to any customer or applicant who is eligible, based on household income, to participate in CAP, meaning they have income at or below the level indicated in the Commission's CAP policy statement, currently 150% of the Federal Poverty Level. This proposal is administratively simple and avoids the inequitable results that would arise if applicants or customers in one service territory are required to pay a deposit while similarly situated applicants and customers in another service territory are statutorily exempt.
LICRG notes that, over time, each utility has imposed a range of eligibility requirements, none of which are necessarily connected to an applicant or customer's ability to pay a security deposit. They offer as an example PPL, which excludes customers from CAP if they have not ''entered into a payment agreement within the last 12 months.'' Thus, applicants for service are ineligible for PPL's CAP because they do not have arrears which would necessitate a payment arrangement. LICRG does not believe that nuances of each CAP eligibility requirement were what the General Assembly had in mind when it set out the prohibition. It is similarly important that utilities not require actual enrollment in CAP as a precondition to application of the security deposit exemption. Chapter 14 plainly contemplates that applicants and customers would not need to enroll in the program to be exempt from security deposit requirements, as it refers explicitly to those ''eligible'' for CAP.
LICRG opines that utilities often do not inform consumers of the prohibition on cash deposits at the time the deposit is requested, leaving many families struggling to scrape together money they do not have. While the Commission proposes to address that issue by requiring the utility's denial of credit letter to contain a statement about the cash deposit prohibition, they are concerned that consumers are unlikely to read the fine print in a credit denial letter. Credit determinations are often made at the time the customer calls for service, while they are still on the phone. Once assessed or quoted over the phone, customers who are unable to meet the deposit amount often panic, scrambling to come up with the money. Therefore, LICRG believes that it is critical that oral notice of the exemption, as well as clear instruction for how to verify income for the exemption to apply, should be provided to applicants and customers at the time the security deposit is quoted or assessed. Further, the income verification process should be simple; in-person processes can be onerous to many low-income households, requiring the head of household to take time off work, obtain childcare, and arrange for transportation.
LICRG asks that deposits held by public utilities should be refunded or credited to low-income customer accounts as it is inequitable for a public utility to hold a deposit collected from a customer upon later discovery that such customer is, or has become, low-income. Such deposits should be refunded within two billing periods after the discovery of such a deposit. (LICRG at 18—27).
LICRG asks the Commission to reject the argument that utilities should be able to terminate based on a single missed security deposit installment, rather than having to wait until the end of the 90 days to proceed with termination. LICRG argues that allowing households a full 90 days to pay a utility security deposit without risk of immediate termination is often critical to the household's financial stability, citing the costs of relocating and that these households often lack the upfront capital to pay an immediate cash deposit. Allowing the full 90 days for a household to pay the deposit ensures that the household has sufficient time to establish themselves at their new residence. (LICRG Additional Comments at 34).
LICRG also asks the Commission to reject any further modifications to the Commission's regulations to require certain applicants to assume responsibility for service rendered to third parties—as they contend that such proposals are contrary to the Public Utility Code. They argue that prior to the implementation of Chapter 14, the ''general rule [was] that a public utility may not request payment of a residential service bill from a customer unless the residential service was provided in that customer's name'' and that with Chapter 14, the General Assembly modified this general rule in very specific and for limited circumstances. Specifically, Section 1403 redefined customer to include ''any adult occupant whose name appears on the mortgage, deed or lease of the property for which residential service is requested.'' Furthermore, following termination of service, Section 1407(d) authorized a utility to require payment of ''any outstanding balance or portion of an outstanding balance if the applicant resided at the property for which service is requested during the time the outstanding balance accrued and for the time the applicant resided there.'' Except as modified by these two provisions, the current Commission's regulations are clear in preserving the status quo prior to Chapter 14.
LICRG opines that the alterations proposed by some of the utilities would expose an indeterminate number of applicants to unexpected and unwarranted third-party liability. Individuals who did not previously occupy a property, nor benefit from service provided to that property, would nonetheless be personally responsible for service provided to a third-party solely because that third-party still resides at the premise. The effect would be to significantly and impermissibly broaden the narrow statutory language of ''customer'' set forth in Section 1403. A third party would effectively become a customer for purposes of a back balance without having been an adult occupant during the period service was provided, and without having had any formal relationship with the property, documented through a mortgage, deed or lease. LICRG concludes that the General Assembly did not intend for, nor authorize, such a broad scope of potential third-party liability in enacting and amending Chapter 14. Finally, as the Commission's regulations recognize, utilities maintain creditor rights and remedies against nonpaying customers and the utilities should exercise those rights against the former customers who are responsible for the debt. (LICRG Additional Comments at 34—37).
The CAC urges the Commission to ensure that for purposes of the cash deposit prohibition, the operative threshold concern regarding whether a household is or is not ''confirmed to be eligible for a customer assistance plan'' is the household's income level. This clarification would create uniformity across the state and among utilities, all of whom have slightly different customer assistance plan eligibility criteria, but nonetheless all abide by the 150% of federal poverty income guidelines. The CAC also urges the Commission to clarify that it is the duty of the utility to inquire about a customer or applicant's income status prior to or at the time of the cash deposit request. To that end, the CAC suggests that the Commission require utilities to include the following language in the deposit warning letters: ''If your total household income is at or below 150% of the Federal Poverty Guidelines, you are exempt from paying any security or cash deposit. Please call [the utility] at [Customer service telephone number] to provide documentation of your income for this purpose.''
The CAC also believes that the Commission should modify § 56.36 to specify that there are separate procedures and standards for victims with a protection from abuse order or a court order issued by a court of competent jurisdiction in this Commonwealth, which provides clear evidence of domestic violence. The procedures must also specify that any applicant or customer who is confirmed to be eligible for CAP will not be required to pay a deposit, and shall set forth the process in which the utility assures that no deposit will be required and the way the applicant or customer is advised of this policy, and of the right to contest an incorrect deposit request. (CAC at 6—9).
EAP believes § 56.32(d) requires further clarification. In the process of initiating new service for an applicant, utilities do not wait for the deposit to be paid in full before establishing service in the applicant's name—the applicant is typically asked to pay 50% of the deposit initially, with 25% of the deposit to be paid after 30 days and the remaining 25% to be paid after 60 days. It does not seem practical for applicants or utilities to wait until the end of a 90-day billing cycle for the deposit to be fully paid in order to establish service. EAP opines that this Subsection as written does not leave much time for the utility to begin its collections process if the applicant misses one or more of the payments in the deposit installment sequence and accordingly suggests that language be added to Subsection (d) to permit utilities to initiate collection practices in the event the applicant fails to pay any portion of the security deposit as required.
EAP also believes that the Commission needs to define further how a customer is ''confirmed to be eligible'' for CAP and is concerned that the cash deposit prohibition as proposed may leave the door open for customers who orally claim they are eligible for CAP to get connected, but ultimately never follow up with income verification. To address this issue at the start of the application process, EAP believes customers should agree to apply for a CAP program, which requires customers to provide verifiable income documents or other information as is routine to determine eligibility or prove to the utility that their income has been verified through another means, such as receipt of state benefits, e.g., LIHEAP or SNAP. Alternatively, this concern could be addressed by adding a term of ''confirmed eligible'' with a definition as explained in their comments relating to § 56.2.
Regarding § 56.35, although no substantial changes to this section have been proposed by the Commission, EAP suggests clarification is needed to assist utilities in improving their overall collection results. This regulation presently prohibits a utility from requiring payment for residential services previously furnished under an account in the name of a person other than the applicant as a condition of initiating service again at the same address. While some ''name game'' loopholes have been closed under Subsections (1) and (2), situations still arise where relatives, friends, or other non-occupants look to secure service in their name for an otherwise delinquent or uncreditworthy premises resident. EAP recommends the addition of a new Subsection to § 56.35(b) which would permit a utility to require the payment of an outstanding balance if a property is still occupied by a prior customer who accrued an outstanding balance at the property for which service is requested and that a utility could establish that a customer still resides at the property through the use of mortgage, deed or lease information, field visits, landlord confirmation, or other methods as approved by the Commission. EAP opines that this proposed addition would help protect good paying customers by eliminating further loopholes used by other residential customers to avoid paying overdue balances and still maintain active service.
Regarding §§ 56.38 and 56.42(d), EAP is concerned that the proposed language ''shall have up to 90 days to pay the deposit in accordance with Commission regulations'' is vague. EAP suggests adding language to indicate that an applicant's deposit must be paid in full by the end of the 90-day period—that is, the 50/25/25 payments each made—or the utility's typical collection practices may begin. (EAP at 4—6).
Duquesne suggests that the Commission take this opportunity to update the Policy Statements at §§ 56.31 and 56.281 to include a broader scope of protections that have been afforded citizens of the Commonwealth in other areas. Specifically, Duquesne recommends that the Commission incorporate the language as set forth in Governor Wolf's Executive Orders, signed on April 7, 2016, which provide protections for employment and contracting within the Commonwealth. This Executive Order provides that people should be given opportunities for employment and contracting ''without regard to race, color, religious creed, ancestry, union membership, age, gender, sexual orientation, gender expression or identity, national origin, AIDS or HIV status, or disability.'' Duquesne notes that while the current Policy Statements in Chapter 56 do mention ''race, sex, age over 18 years of age, national origin or marital status,'' they are notably silent as to gender, sexual orientation, gender expression or identity, AIDS or HIV status or disability.
Duquesne seeks clarification of the new provision in § 56.32 as to the obligations of the utility should the deposit not be paid, specifically asking if deposits are required to be paid 50% initially, with 25% due after 30 days and the remaining 25% due after 60 days. It is conceivable that while an applicant may pay the first 50%, they could miss one of the other two required payment deadlines and then the question arises of when a utility may begin its collection process. Duquesne supports a clarification for Subsection (d) that allows a utility to pursue termination for collection if any of the installments are not paid timely. Duquesne also suggests including language that will clarify that the responsibility for confirming a customer's eligibility for CAP resides with the utility, which would include third parties (like CBOs) that work on behalf of a utility. This proposed change is designed to ensure against scenarios where, for example, an outside third party confirms the customer's eligibility but fails to timely communicate such information to the utility or its designee. This change would not, however, prevent the utility from accepting a third party's determination as confirmation of the customer's eligibility, provided that the third party demonstrates the validity of its determination in a manner acceptable to the utility.
Similar to their concerns about timing contained in § 56.32(a), Duquesne notes that in § 56.38 an applicant has up to 90 days to pay a deposit, but the rule is silent as to whether that payment can be installments. Duquesne suggests that any provision for payment of a deposit in a 90-day period contain language setting out the payment terms, i.e., what is the maximum that can be demanded upfront, followed by direction on the remainder. Finally, Duquesne suggests that the language in § 56.302(4) be revised to remove the 24-month maximum deposit hold to be consistent with changes made in the remaining provisions of Chapter 56, which requires that deposits be held until a timely payment history is established. (Duquesne at 11—14).
PPL is concerned that § 56.32(d) can be interpreted to provide applicants the full 90 days to pay any portion of the deposit, which would be a significant departure from PPL's current practice, whereby they request that the applicant pay the deposit in three installments and then commences the service termination process if the applicant fails to make any of the installment payments. PPL proposes that the Commission revise the language to clarify that utilities may request that applicants pay their deposits in installments over the 90-day period and that utilities may initiate the termination process if the applicant fails to make any of the installment payments. Concerning Subsection (e) of this same regulation, PPL believes that the qualifier ''confirmed to be eligible for a customer assistance program'' means that the utility has confirmation that the applicant is indeed income-eligible for a customer assistance program. PPL submits that confirmation should either be by the applicant providing verifiable income documents to the utility or agents of the utility, or by the applicant providing verification that he or she has been determined eligible for state benefits with income thresholds that are consistent with those of the utility's CAP. (PPL at 2—6).
FirstEnergy notes that neither Act 155 nor the NOPR defines the phrase ''a customer that is confirmed to be eligible for a customer assistance program.'' They recommend that this phrase be interpreted by the Commission as a customer who has provided proof of income to the utility or the utility's third-party administrator of CAP indicating that the customer is income-eligible for the utility's CAP. In FirstEnergy's case, customers are confirmed to be eligible for CAP once they are screened by the third-party CAP administrator, currently the Dollar Energy Fund (DEF). As part of DEF's screening process, DEF requests proof of income information that enables DEF to determine whether the customer is income-qualified for CAP and if DEF concludes the customer is income-qualified, FirstEnergy will not assess a cash deposit. FirstEnergy opines that income verification is necessary to achieve Act 155 objectives—by including the phrase ''confirmed to be eligible for a customer assistance program,'' the legislature plainly intends for utilities to use some form of income verification to determine if a customer is eligible for a cash deposit waiver. Accordingly, the Commission should modify §§ 56.32 and 56.41 to require customers to submit proof of income information to qualify for a cash deposit waiver.
Although the Commission does not propose any changes to § 56.35, FirstEnergy recommends modification to this section to further promote the intent of Act 155. FirstEnergy believes that one method that some customers use to avoid payment or termination for a high balance is by asking a friend or relative to apply for service at their address—and that upon further investigation, FirstEnergy determines that the prior customer who accrued the account balance continues to live at the property. Based on the Commission's current regulations, FirstEnergy is required to put service in the applicant's name with an account balance of zero and, where collection efforts are unsuccessful, it must write off the prior customer's balance as uncollectible. In December 2016, FirstEnergy began tracking the amount of dollars that is written off as a result of third-party applicants applying for service at locations where prior customers continue to reside. FirstEnergy projects that its aggregate annual uncollectible expense is increased by approximately $842,184 as a result of these instances. Accordingly, FirstEnergy recommends that the Commission combine § 56.35(b)(1) and (2), and add a new Subsection allowing a public utility to require the payment of an outstanding balance or portion of an outstanding balance if the applicant is applying for service at a property still occupied by a prior customer who accrued an outstanding balance at the property for which service is requested and that a public utility may establish that a customer still resides at the property for which residential service is requested through the use of mortgage, deed or lease information, field visits, landlord confirmation, or other methods approved as valid by the Commission.
FirstEnergy does not oppose the Commission's proposed changes to §§ 56.32, 56.38 but requests that the Commission provide further explanation regarding the payment requirements during this 90-day period. Specifically, FirstEnergy requests that the Commission affirm that this 90-day requirement is satisfied where an applicant is permitted to pay the deposit in installments of 50%, 25%, and 25%. FirstEnergy adds that its system is already configured to provide customers and applicants with the option of paying their deposit in three installments of 50%, 25%, and 25% with the approximate timeframe of the current installment plan is 90 days. FirstEnergy seeks to avoid the potentially significant costs and resources associated with updating its billing system to accommodate a new method for charging deposits.
Along these same lines, FirstEnergy seeks additional clarification regarding the Commission's proposed changes to § 56.32(d), stating that a public utility is not required to provide service where an applicant fails to pay a deposit within the 90-day period. To the extent the Commission interprets this 90-day period as consisting of three installment payments of 50%, 25%, and 25%, FirstEnergy requests that the Commission clarify whether the applicant would be subject to termination after failing to make a single installment payment, or whether the applicant would only be subject to termination after failure to pay the entire deposit by the end of the 90-day period. (FirstEnergy at 9—16).
FirstEnergy questions whether proposals to require repeated notifications to customers of the deposit exemption rules are necessary, as utilities do not seek to collect security deposits from customers confirmed to be low income. They note that such proposals would require FirstEnergy to make changes to its scripting such that significant increases to call handling time may occur. Currently, First Energy only discusses security deposit waivers if customers answer affirmatively when the customer service representative asks if they might qualify for low-income assistance programs. Providing security deposit waiver information to all customers, many of whom are ineligible for the exemption, is not an efficient use of utility resources. FirstEnergy also questions the need to amend § 56.53 to require utilities to refund security deposits within two billing periods after discovering that a customer's income is at or below 150% of federal poverty income guidelines as utilities already have an obligation not to hold security deposits for customers who are confirmed to be eligible for CAP. FirstEnergy opposes any security deposit waiver requirement based on a customer merely calling in to inform a customer service center that his or her income has fallen below 150% of federal poverty income guidelines—the customer must first provide confirmatory information to the utility regarding his or her income level. (FirstEnergy Additional Comments at 13—15).
Columbia supports the Commission's proposed new Subsection (e) to § 56.32, as it will align Chapter 56 with the legislative prohibition on requesting security deposits from those applicants and customers who are confirmed to be CAP eligible. Columbia suggests a further refinement so that confirmed CAP eligible customers under § 56.32(e) be defined only as those with household income that is verified through a third-party CAP enrollment agency or those who recently received a LIHEAP grant or those enrolled in the company's Universal Services Program. This would exclude customers who simply self-declare their income with the company while negotiating a payment plan, or any customer or applicant who was previously removed from the company's CAP program. Columbia suggests similar language be included in § 56.41.
Columbia agrees with the Commission's defined period of 12 consecutive months of on time and in-full payments in § 56.53(b), when describing a ''timely payment history'' for holding a residential security deposit. If the customer meets their obligation of achieving a ''timely payment history'' with the company, it is reasonable that the company refund or apply the deposit with interest at the end of the 12-month period. (Columbia at 3—6).
NRG proposes the addition of ''billing entity'' to the provisions in the regulations involving deposits. Adding ''billing entity'' to § 56.31 would require billing entities to employ equitable and nondiscriminatory policies in establishing and applying credit and deposit policies. Inserting ''billing entity'' throughout § 56.32 would obligate billing entities to follow the Commission's rules concerning deposits, deposit payment periods and customer information, and to establish a standard for finding that a customer or applicant has demonstrated satisfactory creditworthiness. However, NRG does not agree with the Commission's existing language requiring the use of a credit scoring methodology that specifically assesses the risk of public utility bill payment because a supplier in the SCB role would initially not have this information. Also, NRG submits that using a credit rating through a consumer reporting agency, as defined by the Federal Trade Commission, more than adequately protects customers and applicants from unfair creditworthiness standards and ensures the use of an unbiased and neutral criterion.
Further, NRG explains that inserting ''billing entity'' in § 56.38 would require billing entities to inform applicants of the option to pay deposits in installments and adding the same phrase throughout § 56.41 would permit billing entities to require existing customers to post a deposit to reestablish credit under specific circumstances and in a manner that is consistent with the Commission's rules. Including ''billing entity'' throughout § 56.42 would require billing entities to follow the Commission's requirements for payment period of deposits by customers. However, NRG proposes to revise the due date of the initial installment from 21 to 10 days. Given that the deposit is being required due to a delinquent account or a failure to comply with a payment arrangement, a billing entity should be permitted to collect the first installment within a reasonable period of time.
Adding ''billing entity'' to § 56.51 would permit a billing entity to require a cash deposit in an amount as specified herein and adjust the amount of the deposit in the event of a material change in service and including ''billing entity'' throughout § 56.53 would allow a billing entity to hold a deposit until a timely payment history is established. Inserting ''billing entity'' in § 56.56 would obligate a billing entity to provide a written statement regarding the application or refund of a cash deposit. Adding ''billing entity'' to § 56.57 would mandate that the billing entity accrue interest on the deposit until it is returned or credited, following the formula set forth herein and finally, including ''billing entity'' in § 56.58 would authorize a billing entity to either pay interest to the customer or apply it to the bills. (NRG at 16-17).
Concerning § 56.32, IRRC notes that this Section uses the phrase ''in accordance with Commission regulations'' and that this phrase should be replaced with a cross-reference to the specific Commission regulation that applies. Subsection (d), to be consistent with the statute, should include the phrase ''or customer.'' Also, concerning the phrase '' . . . within the time period under Subsection (a),'' IRRC notes that some commentators questioned what a utility should do if the applicant fails to pay a scheduled portion of the deposit during the 90-day period. IRRC advises that the regulation should clarify whether failure to pay a portion of the deposit during the 90-day period would require the utility to continue to provide service or not. And Subsection (e), to be consistent with the statute, should include the phrase ''or applicant.''
Regarding § 56.38, IRRC has two concerns. First, a commentator questioned what a utility should do if the applicant fails to pay a portion of the deposit during the 90-day period. The regulation should clarify whether failure to pay a scheduled portion of the deposit during the 90-day period would require the utility to continue to provide service or not. Second, this Subsection is amended to reflect statutory language found at Section 1404(a). IRRC recommends that the PUC clarify the phrase '' . . . in accordance with Commission regulations'' so that it is clear which regulations apply.
Concerning § 56.42, IRRC notes that Subsection (d) is proposed to be amended so that it is similar to existing Subsections (b) and (c). Related to IRRC's comment on § 56.38(a), IRRC recommends rewriting Subsections (b), (c) and (d) due to four clarity concerns. First, as amended, the first sentence of Subsection (d) is not clear regarding who makes the determination that the deposit may be required in three installments. Second, the last sentence of Subsection (d) is also not clear regarding what specific due date applies. Third, noting this Subsection provides a customer with the option to pay the full amount, IRRC questions if that option can be exercised by a customer who fails to pay one of the three installment payments. Fourth, IRRC notes that the deadlines in the first sentence are stated as ''billed upon determination by the public utility that the deposit is required,'' whereas the deadline in the last sentence is ''the due date.'' IRRC recommends that the PUC clarify Subsections (b), (c) and (d) in conjunction with their comments on § 56.38(a) so that the final regulation is clear regarding who determines the method by which the deposit is paid, the due date for all payment options and what actions are triggered when a customer does not make a valid payment on any of the three installments.
IRRC has two clarity concerns with § 56.57 relating to what interest rate is applied and when. First, paragraph (2) provides the interest rate shall remain in effect ''until the date the deposit is refunded or credited, or December 31, whichever is later.'' IRRC notes while it may not be the PUC's intent, December 31 by default will always be the later of the three dates. Similarly, if the interest rate on a deposit remains in effect until December 31, it is not clear at what date the accrual of interest on a deposit ends. Second, paragraph (3) states ''the new interest rate for that year will apply to the deposit.'' The language of the regulation is not clear as to whether this is a different interest rate than the ''interest rate in effect when the deposit is required,'' in Paragraph (2). While IRRC recognizes that paragraphs (2) and (3) reflect Sections 1404(c)(6)(ii) and (iii), it recommends that the PUC clarify in the final regulation what specific interest rate it intends to be applied in each circumstance. (IRRC at 3-4).
Discussion
Application and credit procedures and standards directly impact consumer accessibility to utility service. We recognize the need to find a balance between providing consumers access to utility service in a manner that is transparent, equitable and reasonable while also providing utilities with the tools they need to protect themselves and other ratepayers from the impact of uncollectible monies. We are of course guided in this by the General Assembly, while acknowledging that some of the finer points of these rules are not specifically addressed in Chapter 14.
IRRC, along with many of the parties, asked the Commission to clarify the reference to the ''90 days'' deposit payment period in Section 1404(a) and (h)—and the meaning of the phrase ''in accordance with commission regulations'' in these same Subsections. Does this mean that a customer/applicant has 90 days to pay a deposit in full—regardless of any installment payment plan? Can a utility pursue termination for nonpayment of any deposit installment, regardless whether 90 days passed?
Part of the difficulty here is that the Commission's Chapter 56 regulations have never referred to a ''90-day'' period for paying a deposit. Historically, these regulations have, depending upon the circumstances, either required full immediate payment of a deposit—or permitted an installment plan of 50% as an initial payment; followed by 25% billed 30-days later; followed by a final installment of 25% billed 60-days later. The 50/25/25% installment plan, when factoring in 20-day due dates (see 56 Pa. Code § 56.21), does get you into the proximity of ''90-days,'' but not exactly in most cases. Further, we note that historically, the deposit rules have not specified if failure to pay any deposit installment is grounds for termination. We note the comments of parties like PPL, Duquesne, and FirstEnergy who offer that their current practice is to treat failure to pay any deposit installment as grounds for termination.
While the parties raise many points in both sides of this matter, and arguments could be crafted to support either position, we point to the phrase ''in accordance with Commission regulations'' at Section 1404(a). It is reasonable to assume that the General Assembly was familiar enough with the Commission's regulations to know that the regulations allowed for some deposits to be paid in installments. It is nonsensical to have a regulation providing for installment payments if the customer is not required to pay an installment. We therefore agree with PPL, Duquesne and FirstEnergy and conclude that failure to pay a deposit installment by the due date is grounds for termination. To declare otherwise would be to basically declare that installments are not needed at all—which we think is contrary to what the General Assembly intended. Accordingly, we will insert language in §§ 56.32, 56.38, 56.42, 56.288 and 56.292 to the effect the installment payments must be paid timely and that failure to do so is grounds for termination.
Concerning the proposed prohibition on requiring deposits from customers that are CAP-eligible at § 56.32(e), OCA, LICRG and CAC ask us to clarify that this standard is referring to eligibility based upon the customer's household income—not on other miscellaneous eligibility criteria that can vary by utility. We agree with LICRG that it is unlikely that the nuances of each utility's CAP eligibility requirements were what the General Assembly had in mind when it set out this restriction on requiring security deposits. Also, as CAC points out, using household income to determine eligibility has the benefit of establishing a uniform, statewide standard that can be consistently applied. Accordingly, we shall insert ''based upon household income'' into §§ 56.32, 56.36, 56.41, 56.282, 56.286, and 56.291.
Regarding the concerns expressed about this same section by LICRG that it is eligibility and not actual enrollment into CAP that determines the customer's exemption from deposit requirements, we agree and point out that this section specifies ''eligible,'' not ''enrolled'' or ''participating.'' We think this language is sufficient direction that the customer only has to be ''eligible'' and not actually enrolled in CAP to be exempt from a deposit request.
Several parties, including EAP, PPL, FirstEnergy and Columbia ask that we address income verification procedures in the context of the use of the word ''confirmed'' in Section 1404(a.1). In using the word ''confirmed'' in this section, we agree with FirstEnergy that the General Assembly likely intended that a self-declaration of eligibility was insufficient to qualify for exemption from a security deposit—that there would be some sort of burden upon the customer or applicant to provide some sort of proof of eligibility. At the same time, we are sensitive to the concerns expressed by some of the parties that any such confirmation procedure not be overly complex or burdensome. We think proposals like PPL's, FirstEnergy's and Columbia are reasonable. Enrollment in CAP or household income data submitted to the utility (or the utility's agent) or information indicating eligibility for state benefits with income thresholds consistent with the CAP program should all be acceptable means of establishing eligibility for a security deposit waiver. We will revise §§ 56.32, 56.41, 56.282 and 56.291 accordingly with this guidance. Further, LICRG believes that it is critical that verbal notice of the exemption, as well as instructions for how to verify income, should be provided to applicants and customers at the time the security deposit is assessed. We agree that this guidance should be in writing and will include this in §§ 56.36 and 56.286. Regarding verbal guidance, we think this is already covered by the current requirements at §§ 56.36(2) and 56.286(2) that ''utility personnel shall fully explain the credit and deposit procedures of the public utility to each customer or applicant for service.''
Regarding the refund of security deposits, OCA asks that we clarify that the relevant time period concerning refunding a deposit is any 12 consecutive months. We agree and will insert ''any'' in §§ 56.53(b) and 56.302(4). LICRG asks that we order deposits to be refunded if upon later discovery it is determined that the customer has become income-eligible to have a deposit waived. While we acknowledge FirstEnergy's objection to such language as being unnecessary as utilities already have an obligation not to hold security deposits for customers who are confirmed to be eligible for CAP, we think there is value in inserting this in the regulation as to make it clear to all utilities, consumers and advocates. Accordingly, we will insert language to this effect in §§ 56.53 and 56.302.
Duquesne suggests that we update the non-discrimination standards found in the Policy Statement at §§ 56.31 and 56.281. We agree that it is time to update these sections to reflect a broader scope of protections and will use Governor Wolf's Executive Orders, signed on April 7, 2016, which provide protections for employment and contracting within the Commonwealth, as an example. Accordingly, we will add ''color, religious creed, ancestry, union membership, gender, sexual orientation, gender identity or expression, national origin, AIDS or HIV status or disability'' to §§ 56.31 and 56.281.
EAP and FirstEnergy asks the Commission to broaden who can be held responsible for utility service by expanding the definitions of customer and applicant in some contexts. They point to the ''name-game'' and how this possibly exacerbates uncollectible amounts. While we understand the concerns of these parties, we agree with LICRG that if the General Assembly had intended to broaden the scope of potential third-party liability, they would have done so while amending Chapter 14. Also, as LICRG points out, utilities maintain creditor rights and remedies against nonpaying customers and can exercise those rights against the former customers who are responsible for the debt.
IRRC, OCA and EAP recommend that the PUC clarify the phrase '' . . . in accordance with Commission regulations'' in §§ 56.32 and 56.38 so that it is clear which regulations apply. We agree and will replace this phrase with references to the specific regulations addressing deposit payment time periods.
Regarding § 56.42, we agree to revise the first sentence of Subsection (d) to clarify that it is the utility that makes the determination that the deposit may be required in three installments. The last sentence of Subsection (d) will be revised to specify that the customer has the option to pay the deposit amount in full anytime within 90 days upon determination by the public utility that the deposit is required. We will specify that the customer can pay in full anytime during the 90-day period regardless of whether an installment has been paid or not. We also agree to revise §§ 56.38, 56.42, 56.288 and 56.292 to clarify it is the utility that makes the determination that the deposit may be required in three installments and that the customer has the option to pay the deposit amount in full.
To clarify the applicability of the various sections, we note that in general, §§ 56.32, 56.35 and 56.38 apply to applicants; while §§ 56.41 and 56.42 apply to customers. We have revised the terminology in these sections accordingly.
Finally, in reference to IRRC's concerns with § 56.57 relating to which interest rate is applied and when, we acknowledge that the language is open to various interpretations. However, as IRRC points out, the language is from the statute. Accordingly, any changes or additions to this language must not change what was intended. We think it is reasonable to conclude that what the General Assembly intended in Section 1404(c)(6) is to establish a variable interest rate—a rate that changes every January 1. A deposit initially accrues interest at the interest rate in effect at the time the deposit was required. This interest rate remains in effect until the end of that calendar year (December 31). Then on January 1, a new interest rate is determined, and that is the rate that will be applied to the deposit for the calendar year starting January 1 until December 31 of that year, and so on until the deposit is refunded or applied to the account. Accordingly, we propose adding language to §§ 56.57 and 56.306 that will provide some additional guidance (in bold) without changing the intent of this section:
(2) The interest rate in effect when the deposit is required to be paid shall remain in effect until the date the deposit is refunded or credited, or December 31, whichever is later. A deposit initially accrues interest at the interest rate in effect at the time the deposit was required. This interest rate remains in effect until the end of the calendar year.(3) On January 1 of each year, the new interest rate for that year will apply to the deposit. The new interest rate will be applied to the deposit for the calendar year starting January 1 until December 31 of that same year. Revised interest rates are calculated every subsequent January 1 and applied to the deposit until the deposit is refunded or applied to the account.Termination Procedures
§ 56.82. Timing of Termination.
Section 1406(d) now only allows a utility to terminate service (for the grounds found at 1406(a) (relating to authorized termination)) Monday through Thursday. We proposed revising § 56.82 to align with this new restriction.
The OCA supports this revision as the language is consistent with Section 1406(d). (OCA at 12).
Discussion
The OCA supports the proposed language and no parties were opposed.
§ 56.91. General notice provisions and contents of termination notice.
We proposed revising the information directed to customers on written 10-day termination notices in Subsection (b)(11) to include notice to customers that, pursuant to Section 1417, the special protections available for victims under a protection from abuse order are now also available to those customers with a court order providing clear evidence of domestic violence and issued by a court of competent jurisdiction in this Commonwealth.
OCA generally supports the addition of this language but submits that a stakeholder group should be convened to clarify ambiguities in the language relating to victims of domestic violence. (OCA at 12).
PECO notes that the new statutory and regulatory language—a court order that ''provides clear evidence of domestic violence''—is sufficiently broad that PECO does not expect to be able to immediately proceduralize its determination of whether a proffered court order provides the needed ''clear evidence.'' (PECO at 2).
PGW notes that § 56.11(b)(3) allows the electronic transmission of termination notices when the customer has affirmatively consented to this method of delivery and that the Commission proposes to add language recognizing the availability of electronic notice and to add a new § 56.93(a)(3) to provide further information about the permissible electronic notice options. However, § 56.91 does not reference the availability of electronic notices. PGW recommends that the Commission consider one of two options: (i) add language referencing § 56.11(a)(3) into § 56.91(a); or, (ii) add language from the newly proposed § 56.93(a)(3) into § 56.91. (PGW at 2).
Discussion
We agree with the OCA that the Commission should retain its proposed language codifying the expanded statutory exemption, and then convene a working group of all interested stakeholders. The purpose of this working group would be to develop recommendations to the Commission about guidance and interpretation of Section 1417 that could lead to the development of a policy statement to be applied across utility service territories. This group could also advise the Commission on other implementation issues, such as developing appropriate notice of the domestic violence exemption to consumers, training and consumer education materials, and confidentiality expectations for handling information about a customer's status as a victim of domestic violence. The comments submitted on these matters, as noted above, can serve as the initial discussion points for the working groups exploration of these issues.
In their comments, PGW asks the Commission to add language at § 56.91 mentioning the electronic transmission of the 10-day termination notice. They note that § 56.11(b)(3) does allow this with customer consent. However, even with the customer's consent, we decline to create a regulation in which the issuance of an electronic 10-day termination notice would be the only means of communicating this notice. We believe electronic 10-day termination notices may complement the normal process—not replace it. We will retain the current language at § 56.11(b)(3) that makes clear that the utility must still mail a 10-day notice regardless of electronic provision of the same.
To maintain consistency with the terms used in the Emergency Provisions at §§ 56.111—56.118, we will change the reference at § 56.91(8) from ''serious illness notice'' to ''medical certificate notice.''
§ 56.93. Personal contact.
We proposed revising this section to provide for the optional use of electronic messaging for providing three-day personal notice of termination, per Section 1406(b). We invited comments on the privacy protections and customer consent practices that should be required in the context of electronic messaging. See 66 Pa.C.S. § 1406(b)(1)(ii)(C) and (D).
Amended Chapter 14 referenced the Commission's privacy guidelines at 66 Pa.C.S. § 1406(b)(1)(ii)(D) (relating to notice of termination of service) that emails, text messages or other electronic messaging must be consistent with the Commission's privacy guidelines. In the NOPR, we asked for comments addressing what should be included in the Commission's privacy guidelines (NOPR at 4). We note that the privacy guidelines would be relevant to §§ 56.93 and 56.333 (relating to personal contact). In the NOPR, the Commission proposed changes to these two sections of Chapter 56, simply referencing ''the Commission's privacy guidelines,'' but not explaining what they are.
Several parties offered suggestions on this topic. For example, OCA noted that the Commission does not allow the release of telephone numbers for any purpose and asked that the same treatment should be provided for e-mail addresses, numbers used for text messaging, etc. and that the data submitted to the public utility for purposes of personal contact should not be shared with third parties. (OCA at 2-3). The Joint Commentators and LICRG suggested that these guidelines be codified in the regulation and that written, informed consent be required and that this consent be refreshed periodically along with a provision allowing the customer to revoke consent at any time. (Joint Commenters at 22—24; LICRG at 27—31).
In contrast, EAP opined that guidelines, not regulations, are the best ''path forward into a future where technology and the related privacy issues are ever-evolving.'' (EAP at 9). EAP adds that the Commission has existing privacy regulations at §§ 54.8 and 62.78 but notes that these specific regulations are in the context of customer choice. (EAP at 7-8). PPL submits that Chapter 14 requires that the utility get affirmative consent to use a particular form of electronic communication and as such, the Commission's proposed § 56.93(a)(3) captures the consent policy that utilities must comply with to use this method of communication in this context. Further concerning privacy, PPL recommends stakeholder discussions to identify best practices. (PPL at 6-7). Some parties noted that any requirements must also take into account other laws like the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 (relating to restrictions on use of telephone equipment). (Aqua at 4-5).
Duquesne proposes that, similar to proposed § 56.93(1) and (2), guidance be given in regulation to enumerate what frequency satisfies ''an attempt'' for electronic messaging format. For example, in § 56.93(1), ''Phone contact shall be deemed complete upon attempted calls on 2 separate days to the residence. . . . '' Similarly, § 56.93(2) states that ''If contact is attempted in person by a home visit, only one attempt is required.'' As proposed, however, § 56.93(3) only explains the ability of electronic messaging format and the requirements to obtain consent—it is silent on what is considered an ''attempt.''
As a proposed remedy, Duquesne suggests that the language in § 56.93(3) be revised as follows (see bold):
(3) Electronic contact shall be deemed complete if, after attempted transmittal, no message is received indicating that the transmittal was undeliverable or otherwise not received. In the event the utility receives notification that the transmittal was undeliverable or otherwise not received, the utility shall attempt to contact the customer either in person or by telephone, consistent with the requirements of this section. Contact by email, text message or other electronic messaging format consistent with the Commission's privacy guidelines and approved by Commission order. The electronic notification option is voluntary and shall only be used if the customer has given prior consent approving the use of a specific electronic message format for the purpose of notification of a pending termination.(Duquesne at 14-15).
IRRC questions how contact must be made if it is discovered an email address or text message connection is no longer valid. If the electronic contact is not successful, should the personal contact requirement revert to contact in person or by phone? IRRC asks the PUC to clarify in the regulation how a valid personal contact can be accomplished if the electronic contact is not successful. (IRRC at 6).
Discussion
It is also apparent from the comments that there are number of concerns related to this topic, including what type and form of consent is needed; the duration, expiration and revocation of consent; and the use and sharing of the contact information provided. However, we agree with EAP's suggestion that we not be overly prescriptive or detailed in the regulations, given ever-changing technology.
We also cannot ignore that the General Assembly referred to ''guidelines,'' not ''regulations'' in Section 1406(b)(1)(ii)(C). This same section also refers to ''approved by [C]ommission order.'' It is reasonable to assume that the General Assembly envisioned the development of guidelines that would be ratified by a Commission Order. Accordingly, we propose addressing this topic in a separate, but related, proceeding. We intend to use the comments submitted to date to propose, in an upcoming Tentative Order, privacy guidelines for Section 1406(b)(1)(ii)(D) (relating to notice of termination of service) and §§ 56.93 and 56.333.
In response to IRRC's and Duquesne's concerns about what should occur if an electronic contact attempt is not successful, we think Duquesne's proposed language has merit—
Electronic contact shall be deemed complete if, after attempted transmittal, no message is received indicating that the transmittal was undeliverable or otherwise not received. In the event the utility receives notification that the transmittal was undeliverable or otherwise not received, the utility shall attempt to contact the customer either in person or by telephone, consistent with the requirements of this section.
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1 See Secretarial Letter re: Act 155 of 2014 Implementation, Docket No. M-2014-2448824 (December 10, 2014); and 52 Pa. Code Chapter 56.
2 See Secretarial Letter re: Act 155 of 2014 Applicability and Implementation. Docket No. M-2014-2448824 (December 10, 2014).
3 Aqua Pennsylvania; the Coalition for Affordable Utility Service and Energy Efficiency in Pennsylvania; Columbia Gas of PA; the Consumer Advisory Council; the Disability Rights Network of Pennsylvania, MidPenn Legal Services, Neighborhood Legal Services Association and the Pennsylvania Health Law Project (collectively DRN); Duquesne Light; Energy Association of Pennsylvania; Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company and West Penn Power Company (collectively FirstEnergy); MidPenn Legal Services—Lancaster County; National Fuel Gas Distribution Corporation; the Office of Consumer Advocate; PECO Energy Company; Philadelphia Gas Works; Peoples Natural Gas; PPL Electric Utilities Corporation; and the Tenant Union Representative Network and Action Alliance of Senior Citizens of Greater Philadelphia (collectively TURN).
4 See Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14, Docket L-2015-2508421 (Order entered July 21, 2016).
5 See Order Seeking Additional Comments re Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14, Docket No. L-2015-2508421 (Public Meeting of July 12, 2017).
6 See Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14. Docket No. L-2015-2508421. (Public Meeting July 21, 2016) p. 5.
7 See Order Seeking Additional Comment re Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14. Docket No. L-2015-2508421. (Public Meeting held July 12, 2017) p. 7.
8 Petition of NRG Energy, Inc. for Implementation of Electric Generation Supplier Consolidated Billing, Docket No. P-2016-2579249 (SCB Petition filed December 8, 2016).
9 Petition of NRG Energy, Inc. for Implementation of Electric Generation Supplier Consolidated Billing. Docket No. P-2016-2579249 (Public Meeting of January 18, 2018).
10 See Secretarial Letter re Notice of En Banc Hearing on Implementation of Supplier Consolidated Billing, Docket No. M-2018-2645254 (March 27, 2018).
11 See Order Seeking Additional Comments re Rulemaking to Amend the Provisions of 52 Pa. Code, Chapter 56 to Comply with the Amended Provisions of 66 Pa.C.S. Chapter 14, Docket No. L-2015-2508421 (Public Meeting of July 12, 2017), pp. 7—15.
12 See Petition of PECO Energy Company for Temporary Waiver of Regulations Related to the Required Days In a Billing Period, Docket P-2014-2446292 (Public Meeting December 4, 2014).
13 See Peco Energy Company's Pilot Plan for an Advance Payment Program Submitted Pursuant to 52 Pa. Code § 56.17, Docket No. P-2016-2573023.
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