[50 Pa.B. 3861]
[Saturday, August 1, 2020]

[Continued from previous Web Page]

Discussion

 There was little opposition voiced by the parties to our proposal, which we will retain as proposed. We decline to insert the language requested by OCA concerning the actions and scripting of sales agents. Not all sales transactions involve the use of agents (direct mail, electronic enrollment, PaPowerSwitch.com, etc.). Requirements for the actions by and scripting for sales agents are found in our Chapter 111 supplier marketing regulations and are beyond the scope of this rulemaking. We note that 52 Pa. Code § 111.12 (relating to consumer protection) requires agents to provide accurate and timely information about products including the rates being offered. Specifically, 52 Pa. Code § 111.12(d)(4) requires a supplier to do the following:

Shall provide accurate and timely information about services and products being offered. Information includes rates being offered, contract terms, early termination fees and right of cancellation and rescission.

In complying with this regulation, an agent would be expected to inform the customer if the product is introductory in nature when discussing the rates being offered. With that said, we find that the suggestions provided by OCA are beyond the scope of this rulemaking.

 For this same reason, we reject WGL's suggestion that variable-priced contracts be exempt from this requirement. While we understand that a variable price will vary, we established during the 2014 revisions of these rules that even customers on variable-priced contracts must at least know what their initial price will be. While a variable price is established using the stated conditions of variability, as will be discussed later, the customer must at least know the first month's price under those stated conditions before entering into the agreement.

52 Pa. Code § 54.5(c)(3)

 We proposed a revision to clarify that a variable pricing statement is only necessary if the product is a variable-priced product. There was no opposition to this proposal. Accordingly, we have adopted it.

52 Pa. Code § 54.5(c)(3)(i)

 This proposed addition reflects a long-standing similar requirement in the analogous natural gas rule at 52 Pa. Code § 62.75(c)(2)(i). The intent of this proposed amendment is to provide greater transparency with variable-priced products, allowing the potential consumer to make a better-informed decision.

 OCA agrees that this proposed revision reflects the NGS rules but submits that the proposed revision could be improved by requiring the EGS to give an example of how its prices will be calculated using its disclosed pricing methodology by providing a price disclosure for a recent month. OCA suggests that suppliers be required to provide full terms and conditions for all their products on their websites, and once new disclosures are in place, the new disclosures should be sent to all existing customers. OCA asserts that this would enhance transparency and provide the customer with an explanation of how prices are determined during the billing period. Accordingly, the OCA submits the proposed modification:

[(2) The] (3) If the price is variable, the variable pricing statement must include:

(i) Conditions of variability (state on what basis prices will vary) including the EGS's specific prescribed variable pricing methodology AND AN EXAMPLE OF HOW THE EGS'S PRICES WILL BE CALCULATED USING ITS DISCLOSED PRICING METHODOLOGY AND RELYING ON THE MOST RECENT MONTH'S DATA.

(ii) Limits on price variability:

(A) If there is a limit on price variability, such as a specific price cap, a maximum percentage increase in price between billing cycles or minimum/maximum charges per kilowatt-hour for electricity during the term of the contract, the EGS shall clearly explain the applicable limits AND THAT THE PRICE CAN CHANGE EACH BILLING PERIOD.

(B) If there is not a limit on price variability, the EGS shall clearly and conspicuously state that there is not a limit on how much the price may change from one billing cycle to the next AND THAT THE PRICE CAN CHANGE EACH BILLING PERIOD.

OCA at 8, 9.

 The Low Income Advocates and AARP support requiring additional information in the variable pricing statement, as it will promote pricing transparency and will better inform consumers about the terms and conditions of a variable price offer. The Low Income Advocates assert that variable prices can be subject to extreme volatility and, unless they are subject to a price ceiling, can be particularly dangerous for vulnerable low and fixed-income consumers unable to absorb an unexpected price hike. Accordingly, the Low Income Advocates state that it is critical that consumers be equipped with tools to both understand and respond to price spikes to avoid excessive charges for electricity. Low Income Advocates at 15, AARP at 3-4.

 The CAC also supports the Commission proposal at § 54.5(c)(3) that requires marketers who offer variable price products to disclose their specific prescribed variable pricing methodology. The CAC asserts that the proposal would impose some discipline on marketers and some protection for consumers by requiring the marketer to specify the formula or factors that the marketer will follow in implementing variable rate changes. CAC at 4-5.

 The FTC commends these provisions as they preserve the ability of customers to contract for variable pricing services and do so without adding potentially crippling disclosure or notification requirements. The FTC is particularly interested in preserving the subset of variable price offers that entail dynamic prices—the kind of pricing that links short-term variations in retail prices to short-term variations in wholesale market prices. FTC at 4.

 RESA notes that pricing is complicated and each EGS factors different components into determining the final price that it offers customers. RESA asserts that describing these complex calculations in a meaningful way for customers would be extremely difficult. Moreover, RESA states that EGSs view their pricing methodologies as trade secrets. While RESA recognizes the Commission's desire to provide the customer with useful information about how a specific EGS variable product will be priced, RESA does not interpret the Commission's proposal as requiring EGSs to provide their confidential, complex pricing calculations to customers. Accordingly, RESA states that the language as proposed appears to provide EGSs the appropriate flexibility to determine how to balance their need to keep confidential their pricing methodology with the Commission's goal of providing customers information about the basis upon which their variable price is subject to change. However, RESA would not support the creation of either: (1) a new obligation to disclose specific pricing calculations; or (2) a new affirmative obligation on EGSs to notify customers of when and how they will receive notification of price changes. RESA at 10—12.

 WGL understands the Commission's goal of providing greater transparency to allow customers to make better informed decisions. WGL states that it will be difficult for an EGS to articulate a specific prescribed variable pricing methodology for variable price electricity products. WGL asserts that EGSs can, and should, be able to provide a list of factors that will be considered in establishing a variable retail price. WGL submits that the language in this rule should be modified to read as follows: ''Conditions of variability (state on what basis prices will vary), including the factors that the EGS will rely upon to establish the variable price.'' WGL at 4-5.

 Inspire disagrees that the proposed change will advance transparency and more informed decision making and instead believes that this change will likely undercut those interests and create greater confusion. Inspire asserts that energy pricing is inherently complex with many factors impacting pricing, including PJM market conditions, such as, locational marginal prices, capacity and ancillary services charges, customer cost to serve, transmission and distribution costs; weather; fees associated with the use of financial instruments to reduce price volatility; and taxes. Inspire insists that what a consumer considering a variable rate product must understand is that the rate can change. Inspire avers that further disclosures with detailed technical discussions of price setting methodologies, or complex formulas, only serve to distract from this core piece of information. Inspire at 8-9.

 IRRC asks if the requirements in § 54.5(c)(3)(ii)(A) and (c)(11) relating to price variability are duplicative. If so, IRRC requests that they should be combined into one requirement. IRRC at 2.

Discussion

 As is apparent from the comments, providing potential customers with the information they need about a variable-priced product in an understandable manner is a challenging task. The components that make-up electricity prices are many and complex, and the types of variable products that consumers may be offered can be diverse. Our objective has been to provide potential customers with the information they need in a useful and understandable format while not being so restrictive that we inappropriately limit the ability of suppliers to offer such products. The FTC notes the importance of variable and dynamically-priced products and urges the Commission to avoid potentially crippling disclosure requirements that discourage such offerings. At the same time, the advocates urge us to require suppliers to be as descriptive as possible, with some requesting that specific rate calculation formulas be required. We believe there is a reasonable middle-ground here that can accomplish our objectives.

 We reject requiring suppliers to provide a specific rate calculation formula for several reasons. We agree with RESA that these formulae could be considered proprietary and thus not appropriate for public disclosure. We also agree with RESA, WGL and Inspire that such formulae would likely be too complex and include components that consumers do not understand, which is contrary to the intent of the regulation. However, we agree with WGL that suppliers should be able to provide a list of factors that will be considered in establishing the price and have added this to the regulation.

 OCA asks us to require the supplier to give an example of how the price will be calculated and to give an example of the outcome. We note that our regulations at subsection (iii) of this rule requires the supplier to provide the price to be charged, per kilowatt-hour, for the first billing cycle of generation service. This price should reflect the outcome of any variable pricing methodology. Further, subsection (14), which will be discussed in detail below, requires that the supplier make available a price-history of the variable product they are selling. We find that these two provisions are sufficient in demonstrating to the potential customer what the price has looked like in the past and what their price will be at the start of the product period. Accordingly, we decline to adopt OCA's suggestion. We also decline to adopt OCA's suggestion that we impose the new regulatory requirements of this section upon contracts entered into prior to the effective date of these regulations. However, we agree with OCA that the subsections addressing the limits on price variability should include an important reminder to the customer that ''the price can change each billing period'' and that this must be disclosed in a larger font type to increase its prominence. Accordingly, we have added language to subsections (ii)(A) and (ii)(B) requiring this reminder.

 Regarding IRRC's question asking if the provisions of this section are duplicative of the requirements at (c)(11), we do not view these two requirements as duplicative. Subsection (c)(3) addresses the content—what must be disclosed. Subsection (c)(11) concerns formatting—that this information must be in a larger font size.

52 Pa. Code § 54.5(c)(3)(iv)

 We proposed a revision intended to bring the electric rule into alignment with the natural gas rule at 52 Pa. Code § 62.75(c)(2)(iv). We also noted that while this requirement is not in the current electric disclosure rule, it has been in the electric contract summary since 2014. This requirement is intended to let the potential customer know when and how they will be informed of their variable-price changes. For example, if the customer will not be informed of the price until the time of billing, the EGS must disclose this. Or if advanced notice of price changes will be provided, the EGS must disclose the timeframe of those notices and how they are delivered (U.S. mail, electronically, etc.).

 The OCA and the Low Income Advocates suggest that § 54.5(c)(3)(iv) provide that a price change notice will be provided before the new price is charged to the consumer. The OCA and the Low Income Advocates assert that without information about what price is being charged, the consumer cannot make informed decisions about their energy use or about whether a new price plan or supplier is needed. The OCA submits the following changes to § 54.5(c)(3)(iv) for the Commission's consideration:

(iv) A STATEMENT description of when the customer will receive notification of price changes. SUCH NOTIFICATION SHALL BE AT LEAST 10 DAYS BEFORE SUCH PRICE CHANGE GOES INTO EFFECT.

The Low Income Advocates offer the following language (in bold):

A description of when and how the customer will receive notification of price changes. At a minimum, an EGS must provide customers with notice of changes to a variable rate price at least three days in advance of a price change if the price change is based on usage, temperature, and other factors that are not immediately apparent to the EGS at the start of the contract. If the changes to the variable rate price are scheduled or predetermined, an EGS must provide the customer with notice of the proposed changes at least 30 days prior to the effective date of the change.

OCA at 9-10; Low Income Advocates at 16, 26.

 The FTC agrees that customers should be informed about how and when they will be notified about price changes for variable price offers and they suggest adding a provision under which sellers can refer customers to publicly available indices of electricity prices if such indices are key factors in determining power bills. The FTC further encourages the Commission to accommodate retailer experimentation regarding variable rate plan disclosures. The FTC asserts that restrictions on disclosures that do not permit customers to make an apples-to-apples price comparison could harm customers by dissuading them from accepting variable price offers that increase their ability to reduce their bills. FTC at 7.

 RESA does not interpret the Commission's proposal to create a new affirmative obligation on EGSs to provide customers advance notice of price changes for variable contracts. Rather, RESA understands this proposal to affirmatively obligate the EGS offering a variable price and voluntarily agreeing to provide notification of price changes to disclose to the customer how such notification will be provided; for example, an EGS could state that the change will be reflected on the next monthly bill the customer receives. RESA does not oppose this revision based on these assumptions. RESA at 11.

Discussion

 While we disagree with the FTC about referring customers to publicly available indices of electricity prices out of a concern that electricity pricing is too complex to make any such indices of any use to residential and small business customers, we do agree with the FTC that we need to allow for flexibility and accommodate experimentation as we move into the advanced-metering era. Accordingly, we find OCA's and the Low Income Advocate's suggestion that we always require advanced notice of price changes too restrictive. For some products linked to spot-market or real-time pricing, advanced notice of price changes may not be possible and such a requirement would in effect ban these products. We find that it is important that the customer be told up-front in both the disclosure and in the contract summary that the price may change each billing cycle, if indeed that is the case. Based on this finding, and in response to the understandable concerns of OCA and the Low Income Advocates, we added language to § 54.5(c)(3)(iv) making it a requirement that if the customer is not going to know their price until the time of billing, not only must that be disclosed, it must be disclosed in a larger font size as to increase its prominence.

52 Pa. Code § 54.5(c)(4)

 This proposed addition was intended to make the longstanding requirements at 52 Pa. Code § 54.7 more visible and effective. Stakeholders have noted that these requirements are often overlooked because they are not found or referenced in the disclosure rules. This requirement is intended to enable consumers to compare supplier offers on an ''apples-to-apples'' basis, especially when non-volumetric charges, such as monthly fees or one-time fees, are involved. We invited parties to comment on the need for this regulation to accommodate an evolving electric marketplace where new products and pricing structures are likely. Specifically, we proposed the following:

If the unit price changes based on customer usage or if the product includes fees in addition to the unit price, the price per kWh shall factor in all costs associated with the rate charged to the customer and show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format.

 The OCA agrees that this requirement provides an apples-to-apples comparison, especially when one-time or monthly fees are involved. OCA asserts that providing the customer with all the costs associated with the rate in a table format based on usage levels provides more transparency to the customer and allows the customer to make informed choices. Regarding the flat bill option, if permitted, OCA asserts that the flat bill will have to be treated under § 54.5(c)(4) as a price that changes with usage. For products that are separately charged and not required to receive generation service, OCA asks that the price of these separately charged non-generation products be disclosed both on a total charge basis and as a monthly impact to the bill. If a product is bundled with generation service and is required to receive generation service, however, OCA states that the price of the product should be disclosed on a price per kWh basis. OCA at 10.

 The Low Income Advocates strongly support this proposed change, as it will allow for an honest and transparent comparison of EGS offers. The Low Income Advocates assert that inconsistent fee structures have confounded many consumers attempting to participate in the marketplace. The Low Income Advocates believe that clear and transparent disclosure of the price per kWh based on various consumption levels is critical to allow consumers to accurately compare offers and make value judgments about product offerings. Low Income Advocates at 9—13, 17-18.

 AARP notes that customers who wish to shop for electricity in Pennsylvania have long been advised by the PUC and other consumer educators to look to the ''Price to Compare'' as a starting point, but that the Price to Compare has not always given consumers the full cost of switching to another retail marketer. AARP believes that the proposed requirement will reduce the likelihood that customers will be misled by low kilowatt hour fees that often mask high monthly or one-time fees charged by some retail marketers. AARP at 3.

 The FTC agrees with the proposal to require offers that include non-volumetric charges to continue to disclose the total billing amounts corresponding to different consumption levels. To help ensure that customers understand the implications of non-volumetric charges, the FTC suggests that an additional or alternative approach could be to classify offers that include non-volumetric charges as variable rate plans, in which the average net per-unit price varies based on the level of consumption. FTC at 10.

 RESA supports moving this requirement (to the extent it is applicable) into § 54.5(c) because this is where the Commission sets forth all the required information and language EGSs are expected to include in their customer contracts. RESA argues that the addition of the term ''actual'' to describe usage will provide clarity that the requirement does not apply to customized products which may be quoted based on historical usage data. Reorganizing the sentence to reference fees in the context of the requirement to display ''all costs,'' provides additional clarity that the table is expected to factor in the usage costs plus included fees. RESA suggests the addition of the term ''actual'' in the text as follows:

Section 54.5(c)(4): If the unit price changes based on actual customer usage or if the product include fees in addition to the unit price, the price per kWh shall factor in all costs associated with the rate charged to the customer including any fees and show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format.

 RESA asserts that limiting the requirement to display the usage table for products where the unit price (plus any fees) changes based on actual customer usage is important to ensure that the regulation does not constrain the ability of EGSs to develop new products and services with appropriate pricing structures that are not based on usage. RESA asserts that as EGSs strive to innovate pricing structures and products, they also endeavor to determine the most consumer-friendly way to present their product and pricing information to consumers. RESA suggests that overly restrictive regulations that constrain the creativity of EGSs in presenting their pricing and products should be avoided. RESA 8-9.

 NEMA agrees that the Commission should be mindful of avoiding rules that prevent innovative products from being offered and prevent the benefits of advanced metering from being realized by consumers. Given the very nascent state of market development with respect to time variant rates for mass market consumers, and the potential for rigid disclosure requirements to hamper product development and availability, NEMA asserts that it is appropriate to expressly exempt time variant products from the disclosure requirement. NEMA at 4-5.

 Inspire fears that the proposed requirement, if interpreted strictly and without exception, will present a substantial obstacle to future and present innovations. Inspire asserts that few people understand the kWh, and specifically, what a kWh rate will mean for their ultimate bill. Inspire posits that what customers do understand, and what they care about, is how much they will ultimately pay each month. Inspire insists that a requirement to present the price for an energy product as a cost per kWh at the point of sale would greatly limit innovation, and ultimately choice—and if applied strictly and without exception, could essentially lock market participants into just two rate structures, fixed and variable. Accordingly, Inspire urges the commission to eliminate the cost per kWh requirement or, in the alternative, clarify its inapplicability to flat-bill and other innovative products. Inspire at 2—8.

 IRRC suggests that the term ''product'' used in § 54.5(c)(4) and (14)(i) should be defined. IRRC at 2.

Discussion

 As we discussed earlier relative to subsection (c)(1), how to present pricing is one of the more complex issues we must address and one that stakeholders offered diverse and engaging comments upon. The challenge once again is to provide potential customers with the information they need to make informed decisions and to comparison-shop, while not being so restrictive that we inadvertently ban new and innovative products made possible by advanced metering. Once again, after carefully considering the comments, we believe there is a way to balance these interests and make this regulation both effective but not overly prescriptive. We find that our original proposal is basically sound but acknowledge that some refinements and additional guidance is needed.

 We agree with OCA and the Low Income Advocates that this requirement should apply if one-time or monthly fees are involved and agree with RESA that additional language should be added to the regulation to make this clear. We also agree with OCA that this requirement should apply to ''flat bill'' products (products where a customer is billed a flat monthly, pre-disclosed amount regardless of usage). For such products, the supplier should provide the ''flat bill'' amount under subsection (c)(1), and what that works out to be on a per-kWh basis for subsection (c)(4). We see no reason why this cannot be done and reject arguments that this would inhibit or prohibit such products. To the contrary, this should allow suppliers to highlight the advantages of such products and, again, allows the potential customer to comparison shop. We will also insert language clarifying that if the product also has an introductory component (see subsection (c)(2)), a table must be included showing the introductory pricing information and a separate table displaying the pricing that applies after the introductory period expires.

 However, we agree with NEMA and RESA that not all pricing structures will fit this regulation. Dynamic, time-of-use products, where the amount of the customer's monthly bill will be determined in part by when they used the service, will be difficult if not impossible to accurately project in advance. These types of products could become increasingly common as advanced metering becomes ubiquitous and new technologies (e.g. electric vehicles) increase the need and demand for such products.

 At this time, no one really knows all the types of dynamic, time-of-use products that will be offered or what they will look like. This means flexibility is needed when crafting this regulation. We revised our proposal to create an exception for dynamic/time-of-use products—suppliers will not be expected to provide per kWh prices for three different usage levels. However, we also inserted new language directing suppliers to present time-of-use pricing information in a table format that displays what the ''times'' are and what the applicable per kWh rate is for the specified times. If the rate for such is variable, the supplier shall display in the table the first month's initial pricing levels (see subsection (c)(3)(iii)) and a notation that the prices displayed are initial prices only.

 We acknowledge that it is possible there could be products in the future that do not fit neatly into any of the requirements. In such instances, we expect suppliers to make a good-faith effort to provide adequate information to potential customers so they can make informed decisions and comparison shop. We advise suppliers to contact Commission staff for guidance when encountering such situations. We also remind suppliers of the Standards of conduct and disclosure for licensees at 52 Pa. Code § 54.43(1):

To protect consumers of this Commonwealth, licensees shall adhere to the following principles in the provision of electric generation service:

(1) A licensee shall provide accurate information about their electric generation services using plain language and common terms in communications with consumers. When new terms are used, the terms shall be defined again using plain language. Information shall be provided in a format that enables customers to compare the various electric generation services offered and the prices charged for each type of service.

 We further note the requirements in our Chapter 111 supplier marketing regulations, specifically, 52 Pa. Code §§ 111.12(4) and (5) that require suppliers:

(4) Shall provide accurate and timely information about services and products being offered. Information includes rates being offered, contract terms, early termination fees and right of cancellation and rescission.

(5) Shall ensure that product or service offerings made by a supplier contain information, verbally or written, in plain language designed to be understood by the customer. This includes providing written information to the customer in a language which the supplier's representative has had substantive discussions with the customer or in which a contract is negotiated.

 Regarding the request by IRRC to define the term ''product'' used in § 54.5(c)(4) and (14)(i), we will revise the language in § 54.5(c)(4) to reference the ''offer'' in place of the term ''product'' as that makes it clear that the rule relates to whatever it is the EGS is offering to the customer. Rather than attempting to develop a definition for product that encompasses all current and potential future product offerings, the Commission finds that simply referring to whatever the EGS is offering avoids any need for interpretation and avoids confusion.

52 Pa. Code § 54.5(c)(6)

 As we did with the analogous natural gas rule and in the interest of plain language, when describing how many months/years a contract is in effect, we proposed replacing the words ''length'' and ''term'' with ''duration.'' We note that ''term'' can be particularly confusing because in addition to describing ''duration'' it can be used more generally to discuss all contract provisions, i.e. ''terms and conditions.''

Discussion

 No party opposed this proposal, which we will retain in the interest of clarity and plain language.

52 Pa. Code § 54.5(c)(9)

 As we did with the natural gas disclosure, we proposed removing all unnecessary references to the utility from the EGS disclosure statement. At the time these regulations were promulgated, the EDCs had robust consumer education programs and were expected to play a key role in informing consumers about the competitive market. At this time, it is unnecessary to require a display of EDC information on EGS documents, as this may invite customer confusion and even the risk of creating a false impression that the EGS is ''affiliated with'' or ''partnering with'' the EDC.

 Duquesne Light generally supports the proposed removal of unnecessary references to the EDCs in the disclosure statement as eliminating customer confusion about the role played by EDCs and EGSs is important. However, Duquesne notes that § 52.5(c)(9), refers to the default service provider—not an EDC and that while EDCs currently serve in this role, there is no guarantee that EDCs will always be default service providers. Because of this, Duquesne believes that this information should remain. In addition, Duquesne believes there is still a purpose for having EDC information as part of the EGS Contract Summary, since the summary's goal is to provide, in an easy-to-read, one-page document, the most important terms of the disclosure statement.

 While Duquesne acknowledges that in 2016 the Commission removed the reference to NGDCs as part of the NGS contract summary, Duquesne points out that there is no requirement that the format of NGS and EGS disclosure statements be identical. Duquesne at 5—7.

 The OCA agrees with the Commission that prominent display of EDC information on EGS documents could create the false impression that the EGS is affiliated with or partnered with the EDC. The OCA reports receiving customer complaints regarding alleged EGS claims of partnership with the EDC and removing the requirement that the EGS list the EDC's name and telephone number in a prominent position is a step forward in reducing customer confusion. The OCA notes, however, that customers will still require information about their EDC and the availability of default service and that retaining limited information about the EDC in a less prominent and less confusing manner may still be necessary. OCA at 10-11.

 While the Low Income Advocates understand that the Commission's proposal was made with the well-intentioned goal of eliminating consumer confusion, they oppose the removal of information about the EDC and available universal service programming from the disclosure statement. In addition, they believe that further modifications are necessary to ensure that consumers are appropriately informed of the continued role of the EDC, the Commission, and the OCA, as well as the consumer's right to file a complaint with the Commission. The Low Income Advocates assert that the elimination of the contact information will only serve to further obscure the connection between the EDC and the EGS. The Low Income Advocates recommend requiring suppliers to include a statement in the disclosure that the EDC will remain the point of contact for quality of service, billing, collections, and termination questions, along with the contact information for the EDC. Accordingly, the Low Income Advocates offer the following revisions:

(9) The name and telephone number of the default service provider, along with a statement informing the customer that entering into a contract with an EGS does not end their relationship with the EDC, and that the EDC will remain the primary contact for credit and collections, service termination, and service quality issues.

Low Income Advocates at 18—21, 27.

 The CAC urges the Commission to reconsider the proposals that would remove necessary information regarding consumers' EDC and default service provider. The CAC understands that the PUC desires to eliminate consumer confusion and that this is an appropriate and admirable goal that the CAC generally supports. However, the CAC is concerned that elimination of information about the EDC and available universal service programming from the disclosure statement may create more confusion than it eliminates. The CAC recommends that the PUC revise the language to disclose EDC contact information and require the EGS to state that the customer should continue to contact the EDC for quality of service, billing, collections, termination, and universal service questions. CAC at 5—7.

 Inspire supports the removal of requirements that suppliers prominently display EDC information on the disclosure statement. Inspire notes that it works hard to build a unique brand identity, distinct from any local utility. Requirements to feature EDC information on Inspire documents can cause confusion and undermine their efforts to foster a strong, personal relationship with its customers. Inspire at 10.

Discussion

 While we understand the concerns expressed by some parties with the Commission's proposal to remove EDC information from the disclosure, we agree with Inspire that such a requirement is no longer needed and no longer appropriate. The disclosure is an agreement between the supplier and the potential customer—the EDC is not a party to this agreement and repeatedly naming the EDC in the disclosure simply invites confusion and possible allegations of supplier misrepresentation. We shall, as we did with the analogous natural gas rule, remove references to the utility from the disclosure and the contract summary.

 We also reject the Low Income Advocates' request that potential supplier customers be told that the EDC remains responsible for billing and collections because this is not always the case. While most residential and small business customers continue to be billed by the EDC for all services, including the supplier charges through the utility-consolidated bill, and continue to pay only the EDC, suppliers are free to render their own, separate bills and to collect directly from the customer their own charges.

52 Pa. Code § 54.5(c)(11)

 We proposed revisions intended to bring the electric rule into alignment with the natural gas rule at 52 Pa. Code § 62.75(c)(9). This proposed revision was intended to provide full transparency concerning the potential customer's exposure to penalties and fees. Complex penalty or fee formulas with unspecified or unknown components may make it difficult for customers to arrive at informed decisions about generation choices. In addition to early termination fees, this requirement is intended to ensure the disclosure of other fees, including non-volumetric charges such as monthly fees or one-time fees. We invited parties to comment on the sufficiency of this regulation in the context of an evolving electric marketplace where new products and pricing structures are likely.

 The OCA submits that the proposed revision should be strengthened to ensure that the customer is fully informed. Specifically, the OCA suggests that the supplier should be required to give an example of how the penalty or fee structure would be implemented and should be prepared to accurately describe these fees, how they are calculated, and provide the same example in their sales presentations. The OCA also recommends that the Commission specify a type size of no less than 12-point font. The OCA proposed the following:

[(10)] (11) An explanation of limits on price variability, penalties, fees or exceptions, printed in type size larger than the type size appearing in the terms of service BUT NO LESS THAN 12 POINT AND AN ORAL EXPLANATION OF THE EXISTENCE OF A PENALTY OR FEE IN THE CONTRACT'S TERMS AND CONDITIONS. Penalties and fees shall be disclosed in actual dollars or a specific method for determining the actual dollars shall be disclosed WITH AN EXAMPLE OF THE CALCULATION. This explanation shall include a statement advising the customer that the customer will not be subject to any penalty or fee if the customer terminates the contract at any time between the date the initial notice required in § 54.10 (relating to notice of contract expiration or change in terms for residential and small business customers) is issued and the expiration of the fixed duration contract.

OCA at 11-12.

 The Low Income Advocates strongly support this disclosure as they believe consumers are growing increasingly frustrated at the additional fees and penalties levied against them. The Low Income Advocates assert that providing increased transparency about fees and penalties is critical and will help consumers gain confidence that they will not face surprise fees and penalties that they may be unable to afford. Low Income Advocates at 21-22.

Discussion

 We decline to adopt OCA's suggested language regarding requirements for sales agents as we find that this type of requirement is more appropriate for the Commission's Chapter 111 supplier marketing regulations. We also note that not all supplier enrollments involve an agent. Further, an example calculation should not be necessary if the fee is expressed in dollar terms or the result of a simple formula, which is the point of the revisions we are adopting. However, we agree with OCA in that not only should penalty language be in a larger font, we should specify that at a minimum, it should be 12-point font. As the Low Income Advocates point out, these types of fees can be a source of consumer frustration and complaint, thus making their disclosure as prominent as possible using a larger font is crucial. Accordingly, we have added language requiring that fees and penalties be disclosed in font that is not less than 12-point font. Specifically, we revised the first sentence as follows: ''An explanation of limits on price variability, penalties, fees or exceptions, printed in type size larger than the type size appearing in the terms of service, but not less than 12-point font.''

52 Pa. Code §§ 54.5(c)(12) and (13) (Current)

 As discussed above, we proposed to remove all unnecessary references to the utility from the EGS disclosure statement. Including universal service program information in the EGS disclosure risks the customer thinking that these programs are operated or provided by EGSs when they are not.

 OCA argues that, given the essential nature of low-income programs, the disclosure statement should inform and educate the customer as to the existence of the low-income programs. The OCA submits that the EGS disclosure statement should include the following language:

Pennsylvania utilities offer universal service programs that help low-income customers. Call the number on your utility bill or the Pennsylvania Public Utility Commission for more information.

OCA at 12-13.

 Likewise, the Low Income Advocates offer a similar revision for the same reasons as OCA:

(13) The name and telephone number for universal service program information, along with a statement that informs the customer that low income consumers may be eligible for utility assistance programs that are provided by the EDC.

 The Low Income Advocates argue that information about universal service programming is critically important and should not be removed from the disclosure statement. Low Income Advocates 17—20.

Discussion

 Again, in endeavoring to minimize the chance of misrepresentation and customer confusion between the role of the EDC and the EGS, we will maintain our proposal to eliminate references to the EDC in the EGSs disclosure. While we understand the Low Income Advocates' and CAC's desire to include universal service information in the disclosure, we find that this would again cause confusion by implying that the supplier has a universal service program or is responsible for universal service in some manner. This is not the case. The EDC is solely and entirely responsible for universal service programs. This includes promoting the programs and informing customers of their availability—a task for which the EDC can recover all associated costs via utility rates. We further find that it is inappropriate to require suppliers to also promote and inform customers of the availability the EDC universal service program as they are ill equipped to educate customers on the particulars of each EDC program. Accordingly, we decline to adopt the changes suggested by the CAC and the Low Income Advocates.

52 Pa. Code § 54.5(c)(13) (New)

 This proposed revision was intended to bring the electric rule into alignment with the natural gas rule at 52 Pa. Code § 62.75(c)(11). Both the Commission's electric shopping website, www.PaPowerSwitch.com, and the OCA's website, www.oca.state.pa.us, include helpful consumer education information along with access to supplier offers. We proposed including a reference to these websites to provide another option, in addition to the Commission's phone number, for consumers to obtain information.

 While the OCA appreciates the Commission's efforts, for the sake of clarity, the OCA recommends that the OCA's full name be provided as well as the OCA's telephone number so that consumers have full information regarding shopping. The OCA's proposed modification is as follows:

[(12)] (13) A statement [that directs a customer to the Commission if the customer is not satisfied after discussing the terms of service with the EGS] providing that information about shopping for an electric supplier is available at www.PaPowerSwitch.com or other successor media platform as determined by the Commission, by calling the Commission at (800) 692-7380 and OR BY CONTACTING THE OFFICE OF CONSUMER ADVOCATE at (800)-684-6560 OR AT www.oca.state.pa.us.

OCA at 13.

 While the Low Income Advocates and the CAC are supportive of including information about papower switch.com, the Commission, and the OCA, they oppose elimination of the requirement that consumers be directed to the Commission if the customer is not satisfied after discussing the terms of service with the EGS as they believe this will fail to appropriately apprise consumers of their dispute rights. As such, the Low Income Advocates offer the following revisions:

(12) A statement that directs informs a customer of their right to file an informal complaint with the Commission if the customer is not satisfied after discussing the terms of service with the EGS.

*  *  *  *   *

(14) A statement providing that information about shopping for an electric supplier is available at www.PaPowerSwitch.com or other successor media platform as determined by the Commission, by calling the Commission at (800) 692-7380 and at www.oca.state.pa.us.

Low Income Advocates at 21 and 27; CAC at 5—7.

Discussion

 We reject OCA's, CAC's and the Low Income Advocates' request that we retain the language directing consumers to contact the PUC if they are not satisfied with a supplier disclosure. The first option a potential customer should exercise if unhappy with what they are being offered by a supplier is to reject that supplier and seek other options they find more satisfying. This is how a competitive market with choice is supposed to work. However, we recognize that a potential customer may have general questions or be confused by a disclosure, and we find that our proposed language directing them to call us and/or access our shopping website and OCA's website is more inviting than the current language about not being satisfied. A potential customer does not have to be dissatisfied before seeking answers to their questions. We welcome opportunities to inform customers of their shopping options and disclosure rules regardless of customer satisfaction with the offer.

52 Pa. Code § 54.5(c)(14)(i)

 We proposed an addition to reflect the analogous natural gas rule at 52 Pa. Code § 62.75(c)(2)(v) which is intended to acknowledge the reality that a price history may not be available for all products. An example would include a supplier offering a variable-price product for the first time or a new supplier just entering the market. In these types of situations, the supplier would be expected to inform the customer that a price history is not available.

 OCA believes that while it is correct that a price history may not be available for all products, the potential for the misuse of this exemption is significant. The OCA recommends that the EGS not be allowed to avoid disclosure of historical price information unless the supplier documents that the variable price being offered is significantly different from prior offers or cannot be reasonably replicated. The OCA also proposes that the exemption be limited to (a) a newly licensed supplier that is not otherwise an affiliate of an existing supplier for a period of 12 months, at which time the supplier shall provide the historical pricing information that is available; and (b) introduction of an EGS product that is materially different from other products offered by the EGS and any of its affiliates and for which there is no reasonable manner to present representative historical pricing information. OCA also advises that the Commission must ensure that a common approved approach is being used to develop the average price so that proper comparisons can be made. OCA asserts that EGSs should be required to disclose the highest and lowest price over the past 36 to 60 months that has been charged for the customer's rate class and service territory to ensure that customers have more complete information. The OCA proposes the following changes to proposed Section 54.5(c)(14) to address the issues identified:

A telephone number and Internet address at which a customer may obtain the previous 24 months' average monthly billed prices for that customer's rate class and EDC service territory, AND THE HIGHEST AND LOWEST PRICE BILLED FOR THAT CUSTOMER'S RATE CLASS AND EDC SERVICE TERRITORY FOR THE PREVIOUS 60 MONTHS. If an EGS has not been providing service in a rate class and EDC service territory for 24 months OR IS NEWLY LICENSED AND NOT AFFILIATED WITH AN EXISTING LICENSED EGS, the EGS shall provide the average monthly billed prices for the months available to date. If price history or representative price information is not available for the product AND THE PRODUCT IS MATERIALLY DIFFERENT FROM OTHER PRODUCTS OFFERED BY THE EGS OR ANY OF ITS AFFILIATES, the EGS shall inform the customer of this fact. IF THE EGS HAS NOT BEEN PROVIDING SERVICE IN A CUSTOMER RATE CLASS AND SERVICE TERRITORY FOR 60 MONTHS, THE EGS SHALL PROVIDE THE CUSTOMER THE HIGHEST AND LOWEST PRICES AS SET FORTH BY THE COMMISSION FOR SUCH PURPOSE.

OCA at 13—15.

 IRRC suggests that the term ''product'' used in § 54.5(c)(4) and (14)(i) should be defined. IRRC at 2.

Discussion

 We agree with the OCA that our proposed language is too permissive and needs to be strengthened to minimize the chances of it being circumvented. We will add ''and the offer is materially different from other offers made by the EGS'' to clarify that the offer must be substantially different than other offers by the same EGS to be exempt from the requirement to provide a pricing history. However, we find that the OCA's suggestion to include the products of affiliates of the EGS is not appropriate in a competitive market. We also find that requiring pricing information for 24 months is sufficient to inform potential customers about the variability of the pricing and possible seasonal fluctuations.

 Regarding the request by IRRC to define the term ''product'' used in § 54.5(c)(4) and (14)(i), we have revised the language in § 54.5(c)(14)(i) as follows: ''If price history or representative price information is not available and the offer is materially different from other offers made by the EGS, the EGS shall inform the customer of this fact.'' Eliminating the term product in this context makes it clear that the rule relates to whatever it is the EGS is offering to the customer. As we stated for §§ 54.5(c)(1) and (c)(4), rather than attempting to develop a definition for product that encompasses all current and potential future product offerings, the Commission finds that simply referring to whatever the EGS is offering avoids any need for interpretation and avoids confusion.

52 Pa. Code § 54.5(e)

 We proposed revisions intended to update the regulation by referring to the correct location where the glossary of terms can be found. We also proposed that basic charges should be defined to bring this requirement into alignment with the analogous natural gas rule at 52 Pa. Code § 62.75(e). We also proposed replacing the word ''bill'' with ''disclosure statement'' as to correct an apparent error as this section contains requirements for electric disclosures (requirements for electric bills can be found at 52 Pa. Code § 54.4 (relating to bill format for residential and small business customers)).

 IRRC notes that § 54.3(1)(ii) requires terminology used in customer communications to use the terms in accordance with the glossary posted at www.PaPowerswitch.com or other successor media platform as determined by the Commission. IRRC suggests that the regulation should specify how the reader can determine whether the Commission has opted to use another successor media platform. IRRC at 2.

Discussion

 Without any opposition to our proposed language, we will retain the revisions that we proposed. Regarding IRRC's suggestion that the regulation should specify how the reader can determine whether the Commission has opted to use another successor media platform, we decline to codify in the regulation how the Commission will make such a determination or what other types of media platforms will be available in the future as such information or methods are unknown at this time. With that said, we note that as with the current www.PaPowerswitch.com, the Commission will use all appropriate methods and media available at the time of the change to inform customers.

52 Pa. Code § 54.5(g)

 We proposed to create two options for disclosure language concerning contract expiration or change notices—one option for contracts with a fixed duration and a second option for contracts without a fixed duration, such as a month-to-month contract. Stakeholders have noted customer confusion can result from having just one standard statement that may not be applicable to all contracts.

 The OCA recommends that the Commission further define ''non-fixed'' to provide additional clarity. The OCA also recommends that the proposed § 54.5(g) notification language include the time frame that consumers will receive the notices. Furthermore, the OCA notes that the phrase ''whenever we propose to change the terms of service in any type of contract'' could be misleading to consumers, as it suggests that an EGS can unilaterally change the terms of a contract. The OCA recommends the following changes to proposed § 54.5(g):

(g)(1) Disclosure statements shall include the following customer notification: ''If you have a fixed duration contract approaching the expiration date, or whenever we propose to change the terms of service FOR THIS CONTRACT in any type of contract, you will receive two separate written notifications, THE FIRST APPROXIMATELY 60 TO 45 DAYS IN ADVANCE AND THE SECOND 30 DAYS IN ADVANCE OF that-precede either the expiration date or the effective date of the proposed changes. These notifications will explain your options going forward.''

(2) Disclosure statements for ANY CONTRACT OTHER THAN FIXED non-fixed duration contracts must include the following customer notification: ''Whenever we propose to change the terms of service FOR THIS CONTRACT in any type of contract, you will receive two separate written notifications, THE FIRST APPROXIMATELY 60 TO 45 DAYS IN ADVANCE AND THE SECOND 30 DAYS IN ADVANCE OF that-precede either the expiration date or the effective date of the proposed changes. These notifications will explain your options going forward.''

OCA at 15-16.

 Duquesne urges the Commission to be mindful of the reading skills of consumers when mandating specific language. Duquesne believes that the proposed language is arguably too complex. Duquesne offers the following revisions:

''If you have a fixed duration contract that will be ending, or whenever we change the contract, you will receive two separate letters before the contract ends or the changes happen. These letters will explain your options.''

Duquesne offers a similar change to the proposed language in section (2). Duquesne at 8-9.

 NEMA believes that the Commission's proposal is reasonable in that it permits EGSs to improve the clarity and quality of the disclosures that are made to consumers and should be adopted. WGL asserts that the new language for non-fixed duration contracts might be confusing, as its references an expiration date. WGL suggests that the Commission should remove the reference to expiration date and only state that the customer will receive two separate written notices that precede the effective date of proposed changes. NEMA at 5; WGL at 5.

Discussion

 While there is general support for the concept of creating two different paragraphs, the commentators offer compelling reasons for revising the language. The Commission agrees with the OCA and WGL that some of the specific wording needs to be revised. The Commission also agrees with Duquesne that simpler, less complex language is appropriate. Further, we think that the EGS should identify itself in these paragraphs. Accordingly, we included the language suggested by the Commentators and added a placeholder for the name of the EGS.

52 Pa. Code § 54.5(j)

 We proposed an additional paragraph to reflect the analogous natural gas rule at 52 Pa. Code § 62.75(j) concerning contract assignment. We proposed adding the requirement that if the customer's contract is assignable, the supplier must disclose this to the customer. The assignment of contracts from one supplier to another, while not common, does occur frequently enough to be a source of some customer confusion. This requirement is also consistent with the guidance provided by a Commission order addressing assignment in the electric industry.²² In these guidelines, the Commission specified that ''[a]ny assignment clause used in a supplier contract must be written in plain language, be prominently printed and explained fully in 'terms of service and disclosure.'''²³

 The OCA submits that the EGS should be required to disclose this information at the time the consumer enters into the agreement and be required to provide the consumer with written notice if the contract is assigned to another supplier. The OCA also submits that customers should be permitted to return to default service or select another supplier without penalty in an assignment circumstance. OCA at 16-17.

 The FTC asks that even if the contract terms remain the same, the PUC may wish to consider mandating an opt-out provision (without early termination penalties) if the customer is dissatisfied with the new supplier. FTC at 9.

Discussion

 While we agree with OCA that the customer should be given a timeframe for the switch to the new supplier, we think providing a specific date is impractical and not always possible. Instead, we will insert language directing the supplier to provide the month and year that the assignment can be expected. However, we disagree with OCA and the FTC that the customer should have an option to reject the assignment. The Commission has previously determined that contracts are assignable. A customer objecting to an assignment may file a complaint with the Commission but would have the burden of proving that the assignment constitutes unreasonable service on the part of the supplier pursuant to 66 Pa.C.S. § 1501.²⁴ Further, by including the assignment provision in the disclosure as we are doing, the customer is aware of this possibility prior to accepting the supplier's service. If the potential customer does not want to have an assignable contract, they are free not to enter into an agreement with that supplier.

52 Pa. Code § 54.5(k)

 We proposed adding a new paragraph (k) requiring that the disclosure inform the customer if the EGS intends to obtain customer account and usage information from the utility. In our experience, many EGSs already include such a provision in their disclosures. We simply proposed making this a uniform requirement for all disclosures. Customer privacy and third-party access to information is becoming an increasingly sensitive issue and we think that making this as transparent as possible is in the best interest of both consumers and suppliers. We acknowledged that this was a new proposal and invited all parties to comment on what should be included in such a provision.

 Making this disclosure a uniform requirement increases transparency regarding customer privacy and is necessary as a matter of Pennsylvania regulations and law and, as such, the OCA supports this addition but submits that modifications are necessary to fully address consent issues. Regarding smart meter technology, the Public Utility Code requires explicit consent to release information to third parties as follows:

(3) Electric distribution companies shall, with customer consent, make available direct meter access and electronic access to customer meter data to third parties, including electric generation suppliers and providers of conservation and load management services.

66 Pa.C.S. § 2807(f)(3).

 The OCA submits that heightened specificity and explicit consent is required to obtain sensitive customer account information from the EDC, such as smart meter data. The OCA asserts that EGSs should be required to retain this explicit authorization in the event that questions arise. Additionally, the OCA submits that certain types of account information should not be provided to the EGS, such as payment history. The OCA proposes the following modifications:

(k) If the EGS intends on obtaining customer account information from the EDC, the EGS shall inform the customer OF THE SPECIFIC TYPE what type of information THAT may be obtained, INCLUDING WHETHER USAGE DATA the purpose for obtaining this information and inform the customer that they are consenting by entering into this contract. The EGS shall also inform the customer that the EGS will maintain the confidentiality of a customer's personal information including their name, address, telephone number, electric usage and historic payment information as required by applicable Commission regulations and federal and State laws. PAYMENT HISTORY SHALL NOT BE PROVIDED TO THE EGS.

The OCA also submits that the contract summary should include this information as it is critical to protecting sensitive customer information. OCA at 17-18.

 The Low Income Advocates support this change, as it will better shield consumers from unwanted, unauthorized, or otherwise inappropriate disclosure of sensitive personal data. To ensure that the provision has the desired effect, they suggest two additional modifications. First, they suggest that this notice be in a larger font size, and perhaps either bolded, underlined or capitalized to draw the consumer's attention. They further recommend that the supplier be required to disclose the information it may seek from an EDC with specificity. The Low Income Advocates assert that information which the consumer does not wish to share, such as the existence of a Protection From Abuse Order, prior payment arrangements, or prior participation in an assistance program should not be included. The Low Income Advocates offer suggested language:

If the EGS intends on obtaining customer account information from the EDC, the EGS shall request the customer's consent to the EDC disclosure. The EGS must specifically state the nature of the information requested along with reason for the request. the EGS shall inform the customer what type of information may be obtained, the purpose for obtaining this information and inform the customer that they are consenting by entering into this contract. The EGS shall also inform the customer that the EGS will maintain the confidentiality of a customer's personal information including their name, address, telephone number, electric usage and historic payment information as required by applicable Commission regulations and federal and State laws.

Low Income Advocates at 22-23, 28.

 Duquesne suggests that the disclosure also provide, in plain and simple language, that signing the contract is consent for the EGS to obtain personal information from the EDC. Duquesne proposes that the EGS disclosure be required to state that any information obtained for the purposes of providing electric service will not be provided by EDCs to third parties without the customer's express consent and that should the customer's information be inadvertently released, the customer will be notified. Duquesne at 9.

 RESA supports the Commission's proposal but recommends additional language be added to make it clear that the customer is consenting to the release of information by the EDC to the EGS by entering into the contract with the EGS. RESA asserts that adding this language will streamline the ability of the EGSs to request and receive information about their customers from the EDC without the need for additional paperwork. RESA further asserts that unfettering the ability of EGSs to gain access to important customer account information will enable EGSs to provide better and more timely service to their customers and avoid time consuming disputes between the EDCs and EGSs regarding whether the EGS has the appropriate customer consent. RESA recommends the following revisions to the Commission's proposed new regulation:

Section 54.5(k) If the EGS intends on obtaining customer account information from the EDC, the EGS shall inform the customer what type of information may be obtained, the purpose for obtaining this information and inform the customer that he or she is they are providing consenting to the EDC to release this information by entering into this contract. The EGS shall also inform the customer that the EGS will maintain the confidentiality of a customer's personal information including their name, address, telephone number, electric usage and historic payment information as required by applicable Commission regulations and federal and State laws.

RESA at 15-16.

 NEMA asserts that it is appropriate to memorialize this requirement in the regulations, as it has become a standard practice, and to make clear to all stakeholders—EGS, consumers, utilities—the Commission's expectations in this regard. NEMA at 5.

Discussion

 No party expressed opposition to the Commission's proposal, with the commentators generally supporting the concept that the disclosure should include a section addressing the EGS's need to obtain customer data from the EDC and the customer being informed of this and consenting to such. We agree with OCA and the Low Income Advocates that just saying ''type of information'' may be too broad. Accordingly, we have inserted language directing the supplier to be more specific about the information they intend to obtain from the EDC. We also agree with RESA and Duquesne that the section should be clearer and explicitly inform the customer that he or she is consenting to the EDC releasing information to the EGS by entering into the contract.

 However, we disagree with OCA's request that customer payment information never be provided to an EGS. While currently, most residential customers and suppliers participate in EDC Purchase of Receivables (POR) programs where the supplier is relieved of billing and collection responsibilities, this may not always be the case. Further, the Commission has recently ruled, relative to a POR claw-back program, that suppliers have the right to customer payment data in some circumstances even while operating under a POR program.²⁵ We also decline OCA's and the Low Income Advocates' request that this information be highlighted in the disclosure and included in the contract summary. We already require other information be highlighted in the disclosure and find that highlighting too many things reduces the impact of such highlighting. While the information disclosure/consent provision is important, in our opinion this importance does not rise to the same level as information about fees, penalties, and pricing that can have financial consequences for the customer if overlooked.

§ 54.7. Marketing/sales activities

 When this section was first promulgated in 1997, electric utility rate structures often featured declining or inclining block rate structures—the unit rate (per kWh) would vary depending upon the customer's usage. It was envisioned back in 1997 that EGS pricing structures might reflect similar rate structures. This regulation was created to inform consumers of how their supplier unit price would change depending upon their usage.

 Since then, electric utility rate structures have been simplified, including the elimination of most block rate structures. See 52 Pa. Code § 69.1810 (relating to retail rate design).²⁶ As a result, EGSs offering block pricing structures are relatively rare, meaning that this regulation has become outdated. We proposed to update this regulation by clarifying that it is only effective if the supplier is offering a product where the unit price changes depending upon the customer's usage or if the supplier is charging a fee, such as a monthly customer service charge, in addition to the unit price. In these situations, this regulation provides important information that allows the customer to make an ''apples-to-apples'' comparison to another supplier's offer. We also proposed to simplify the rule by eliminating the separate requirements for fixed and variable prices as the proposed amendment applies the same rule regardless of whether the product is fixed or variable.

 The OCA supports this revision and asserts that requiring usage tables only if a supplier offers a product where the unit price changes depending on the customer's usage or if the supplier charges a monthly fee is reasonable. The Low Income Advocates support these revisions, as they will better align required marketing and sales activities with the requirements for the disclosure statement. OCA at 18-19; Low Income Advocates at 23-24.

 The FTC applauds the PUC's practice of periodically updating marketing rules in both sectors to keep pace with new products, new services, and new marketing approaches. Overall, the FTC commends the PUC for its consistent focus on helping customers in both the electricity and natural gas retail sectors to make well-informed decisions rather than imposing particular views of what choices electricity customers should be allowed to make. FTC at 11.

 RESA recommends that the Commission delete § 54.7(b) in its entirety. RESA asserts that maintaining the usage table requirement in a section that is not specifically focused on the information to be included in the customer contract is confusing for EGSs who ensure that they are compliant with § 54.5(c) but do not realize that additional requirements are located in a different section of the regulations. RESA also asserts that the requirement that this usage table be included in marketing materials is potentially confusing. RESA posits that requiring this additional information on marketing pieces is not only costly but also reduces the amount of space available on these marketing pieces to present more useful information. Finally, RESA argues that it is unnecessary for the newly proposed language for § 54.7(b) to specifically include the requirement that the usage table be included in the contract summary per § 54.5(i). RESA at 9-10.

 While Shipley agrees that this provision is somewhat anachronistic at this point, since most utility rates are not declining block rates, it also believes that the proposed change is a solution in search of a problem. Shipley questions the need for the chart at all given the sheer lack of such rates in the market. If the chart will be required, however, Shipley suggests that clarification of the phrase ''that offer terms of service for acceptance by customers'' may be warranted. Shipley also states that it is not clear whether the supplier must include the chart if its rates do not vary on usage, but it does charge a monthly customer charge-like fee. Shipley at 4-5.

Discussion

 There was general agreement among the commentators that this section is outdated and in need of revision, but varying opinions as to how to revise it—with some believing it is unnecessary, unclear, and duplicative and should be abolished altogether. As noted earlier relative to subsections (c)(1) and (c)(4), how to present pricing is one of the more complex issues we have to address, The challenge is to provide potential customers with the information they need to make informed decisions and to comparison-shop, while not being so restrictive that we inadvertently ban new and innovative supply products made possible by advanced metering. Once again, after carefully considering the comments, we find that there is a way to balance these interests and update this regulation to make it clearer and more effective.

 We agree with the FTC that we need to ensure that consumers have the information needed to make well-informed decisions when selecting from an array of choices, rather than imposing particular views of what choices electricity customers should make. However, we agree with OCA and the Low Income Advocates that this proposed requirement should apply to ''flat bill'' products so that customers can compare the product to other products and determine if it is right for them given their needs and wants. We also agree with OCA and the Low Income Advocates that this requirement applies to products that have one-time or monthly fees. We have inserted language clarifying that if the product also has an introductory component (see subsection (c)(2)), a table must be included showing the introductory pricing information and a separate table displaying the pricing that applies after the introductory period expires.

 As we discussed previously relative to subsection (c)(4), we agree with NEMA and RESA that not all pricing structures will fit this regulation. Dynamic, time-of-use products, where the amount of the customer's monthly bill will be determined in part by when they use the service, will be difficult if not impossible to accurately project in advance. As we did earlier with paragraph (c)(4), we revised our proposal to create an exception for dynamic/time-of-use products. Suppliers will not be expected to provide per kWh prices for three different usage levels but instead will be expected to present time-of-use pricing information in a table format that displays what the ''times'' are and what the applicable per kWh rate is for the specified times. If the rate for such is variable, the supplier shall display in the table the first month's initial pricing levels (see subsection (c)(3)(iii)) and a notation that the prices displayed are initial prices only.

 We agree with RESA that the language ''including contract summaries'' is unnecessary and possibly problematic. As RESA points out, in 2014 we deliberately decided not to codify the precise contents of the contract summary as to allow us flexibility to revise the contract summary as needed via Commission Order process rather than a rulemaking. We still want this information in the contract summary, which we discuss further in relation to paragraph (i) of § 54.5, under the ''Contract Summary'' section.

 We agree with RESA and Shipley that the language ''marketing materials that offer terms of service for acceptance by consumers'' is unclear and needs to be more focused. We do not intend for this requirement to apply to all advertising and general marketing. We agree with Shipley that this requirement should be relevant only to written or electronic marketing materials that include enrollment documents that invites and allows a customer to authorize a switch of supply service and will revise the regulation accordingly.

§ 54.10. Notice of contract expiration or change in terms for residential and small business customers

 We proposed some minor modifications to the Notice of Contract Expiration or Change in Terms rules at 52 Pa. Code § 54.10. As we did with the disclosure rules at 52 Pa. Code § 54.5(c) and (g) and discussed above, we proposed using the phrase ''fixed duration'' in place of ''fixed term'' to avoid confusion over the use of the word ''term'' with its multiple-meanings. A more significant, proposed revision to this section is to 52 Pa. Code § 54.10(1)(vi):

(vi) A statement indicating whether the existing fixed [term] duration contract has a cancellation fee, and an explanation [of the fee amount and how to avoid the fee, if possible, including notice of the date when the customer can choose a different product from the customer's existing EGS, choose an alternative EGS or return to default service] that the customer is not subject to the cancellation fee if the customer terminates the contract at any time between the date of the initial notice and the expiration date of the fixed duration contract.

 We proposed this revision to align with our proposed revisions to 52 Pa. Code § 54.3 (relating to standards and pricing practices for retail electricity service). As discussed previously, we proposed a new requirement that would in effect ban the imposition of early termination fees (ETFs) once a supplier has provided the contract expiration notices required by 52 Pa. Code § 54.10. In addition to placing this new requirement in § 54.3, we believe it is appropriate to place this same requirement in § 54.10, since this restriction is based upon the issuing of the notices required by § 54.10.

 OCA again notes, as mentioned regarding § 54.3, the termination of a contract by a customer may be inadvertent due to the timing of the customer switching to another supplier. The OCA asserts that imposing an ETF on a customer for switching after receiving the notice of contract expiration discourages customers from shopping in the competitive marketplace. OCA at 19.

Discussion

 As discussed earlier relative to § 54.3, we modified our proposal so that the ETF ban goes into effect from the date that the second, options notice is sent to the customer—not the first, initial notice. This second, options notice, is to go out no later than 30 days prior to the expiration of the contract. This will in effect create an ETF-ban period of approximately 30 days, compared to a 60-day period as we originally proposed. We revised § 54.10 accordingly to reflect this modification of our original proposal.

Contract Summary (Attachment A)

 As discussed previously, in 2014 we developed and adopted a contract summary that highlights key provisions of a supplier contract in a plain-language box format. This increased the visibility of the most important contract items and allows the consumer to make an easier comparison of different supplier offerings when shopping.

 We did not imbed the contract summary into the regulations in 2014 because we wanted to preserve the flexibility to revise it as the market evolves. However, we did commit to using a process to revise the contract summary in a way that would allow all stakeholders an opportunity to have a voice in any such revisions. Accordingly, we think this rulemaking is an appropriate venue for revising the contract summary, and proposed several revisions in our December 2017 NPRM, included with the order as Attachment A. The proposed changes are intended both to bring it into as much alignment with the natural gas contract summary as possible and to reflect changes in the market since 2014.

 Among the updates, we proposed clarifying that some terms outlined in the EGS Contract Summary template may not be relevant to all contracts by specifying which ones may be omitted entirely if not applicable. We also, as discussed previously, proposed replacing the word ''term'' with ''duration'' when discussing length of the contract. Another general revision was the removal of information related to the utility. As discussed previously, we believe that including utility information is unnecessary and increases the risk that the consumer may confuse the supplier with the utility or get the impression that the supplier is affiliated with the utility. Omitting this information will also shorten the contract summary. We believe that the contract summary must be as concise as possible and needs to fit on no more than one page. The key revisions we proposed included the following:

Generation/Supply Price: Requiring that the customer be informed if the price is introductory, what the introductory price is, and what the price is upon expiration of the introductory period. As discussed previously in the context of the proposed revisions to 52 Pa. Code § 54.5(c)(2), this proposed revision would bring the electric rule into alignment with the natural gas rule and is intended to provide for full price transparency when an EGS is offering an introductory price product.

Generation Price at Various Usage Levels: This proposed new row would only be required if the unit price varies by usage level and/or there are fees in addition to the unit price. This is intended to align with the proposed changes to 52 Pa. Code §§ 54.5(c)(4) and 54.7.

Incentives: In the interest of brevity, we proposed to clarify that if the supplier is not offering any special incentives this row can be omitted from the summary.

End of Contract: We proposed minor revisions to the language to make this contract summary the same as the NGS contract summary. This row should be informing the customer that they should look for the two notices required by 52 Pa. Code § 54.10 as their contract nears expiration.

Right of Rescission: We proposed adding this new row to highlight the customer's 3-day right of rescission as found in 52 Pa. Code § 54.5(d). We believe this is a key consumer protection and needs to be visible and understandable to the customer.

 In addition to the above proposed revisions, we invited parties to contribute any other changes they believe are needed to the contract summary, while urging all parties to keep conciseness in mind when they consider the contract summary.

 OCA notes that currently, there are three documents that provide information to consumers about the supplier agreement: a contract summary, a disclosure statement, and the terms and conditions. The OCA submits that the contract summary and the disclosure statement be combined or designed for a single one-page document. The OCA asserts that it is not useful for customers to be given two different summary documents concerning their formal terms of service document. The OCA submits that there is significant confusion around the disclosure statement, the contract terms and conditions, the contract summary, and the enrollment form. The OCA states that most customers interacting with an EGS via door-to-door, telemarketing, and even kiosk locations are enrolled with the EGS before ever seeing the disclosure statement, contract, or contract summary. The OCA remains concerned that we have gone to great lengths to develop a disclosure statement and contract summary that the customer never sees until it is too late. The OCA submits that it is necessary to address these timing issues with the disclosure statement, contract summary, and contract terms and conditions.

 The OCA agrees with the Commission that the generation/supply price, the generation price at various usage levels, any applicable incentives, end of contract notification, and the right of rescission are appropriate items to include in the contract summary. The OCA also agrees that requiring the disclosure of introductory prices and the price upon expiration of the introductory period is an important revision that will lead to enhanced customer understanding of the agreement. Additionally, the OCA supports the new row that requires generation price at various usage levels if the unit price varies by usage level and/or if there are fees in addition to the unit price as it helps the residential customer make an informed decision. However, OCA believes that these important contract terms should be disclosed to the customer orally as well. Since the contract summary is a concise explanation of a binding agreement between the customer and the EGS, the OCA asserts that orally stating all of the material items that are required to appear in the contract summary is logically necessary to ensure that the customer is fully informed of the key items in the agreement before the sale is complete. All too often, the OCA has heard from consumers that supplier agents make oral representations that are different from or that are not otherwise included in the terms of service. The OCA asserts that requiring suppliers and their agents to make oral disclosures that reflect the contract summary would halt this practice.

 Finally, the OCA submits that, if a customer's consent to release data is included in the contract, it should also be disclosed in the contract summary. The OCA asserts that release of customer account information requires an explicit agreement between the customer and the company. To ensure that the customer's attention is properly drawn to this information, the OCA submits that an additional row be added to the contract summary if such consent is being sought as part of the contract. The OCA states that the contract summary should detail the specific type of account information that the EGS may receive from the EDC. OCA at 19—21.

 The Low Income Advocates largely support the proposed changes, as they will align the contract summary with the other proposed changes throughout the Chapter and will better inform customers of important rights. However, the Low Income Advocates oppose the Commission's proposal to eliminate EDC contact information from the contract summary as well as information indicating that the EDC is responsible for outages, emergencies, and other critical service-related issues. The Low Income Advocates assert that failure to disclose and explain this information will only increase customer confusion and heighten frustration experienced by consumers who must make multiple calls to resolve a pressing service-related issue and/or access relief to which they are entitled. Low Income Advocates at 24-25.

 Shipley generally agrees with the contract summary. However, Shipley would suggest making sure that the format includes the Right of Rescission section directly adjacent to the Cancellation section, simply because the two are similar and it will be easier for customers to understand. Shipley at 5.

Discussion

 In response to OCA's questions and concerns about the timing and delivery of the disclosure statement and contract summary, we first note that § 54.5(b) addresses when a written disclosure must be provided:

(b) The EGS shall provide the customer written disclosure of the terms of service at no charge whenever:

(1) The customer requests that an EGS initiate service.

(2) The EGS proposes to change the terms of service.

(3) Service commences from a default service provider.

 Notably, this regulation does not include a specific time-period for providing the disclosure. However, importantly, § 54.5(d) makes it clear that the customer's 3-day right of rescission does not begin until the customer receives the disclosure:

(d) Customers shall be provided a 3-day right of rescission period following receipt of the disclosure statement.

(1) The 3-day right of rescission is 3 business days.

(2) The 3-day right of rescission begins when the customer receives the written disclosure.

(3) The customer may cancel in writing, orally or electronically, if available.

(4) Waivers of the 3-day right of rescission are not permitted.

 Disclosure delivery timeframes are addressed in more detail in the Chapter 111 residential supplier marketing regulations, specifically at 52 Pa. Code § 111.11:

§ 111.11. Receipt of disclosure statement and right to rescind transaction

(a) When a transaction is completed by a customer without the presence of or interaction with an agent and is not submitted to the verification process, a supplier shall provide the customer with a copy of its disclosure statement as soon as it is practical. A customer shall have the right to rescind the transaction within 3 business days after receiving the disclosure statement. See § 54.5(d) (relating to disclosure statement for residential and small business customers), which applies to EGSs, and § 62.75(d) (relating to disclosure statement for residential and small business customers), which applies to NGSs.

(b) After a transaction that involved an agent has been completed and verified, a supplier shall provide the customer with a copy of its disclosure statement. The disclosure statement may be provided in-person or by United States mail. The disclosure statement may be provided electronically if the customer consents to electronic delivery. A customer shall have the right to rescind the transaction within 3 business days after receiving the disclosure statement.

(c) There shall be a rebuttable presumption that a disclosure statement correctly addressed to a customer with sufficient first class postage attached shall be received by the customer 3 days after it has been properly deposited in the United States mail. If delivered in-person, the disclosure will be considered received by the customer on the date of delivery. If delivered electronically, the disclosure will be considered received by the customer on the date it was transmitted electronically.

 Further, the electric switching regulations at 52 Pa. Code § 57.173(1) direct the supplier to wait until the end of the 3-business day rescission period ends before transmitting the enrollment to the EDC (although different timeframes are permissible with the customer's consent):

§ 57.173. Customer contacts the EGS to request a change in electric supply service

When a customer contacts an EGS to request a change from the current EGS or default service provider to a new selected EGS, the following actions shall be taken by the selected EGS and the customer's EDC:

(1) The selected EGS shall notify the EDC of the customer's EGS selection at the end of the 3-business day rescission period under § 54.5(d) (relating to disclosure statement for residential and small business customers) or a future date specified by the customer. The selected EGS may notify the EDC by the end of the next business day following the customer contact upon customer consent.

 As a result of the above regulations, the customer always has an opportunity to rescind the contract—a right that neither the customer nor the supplier can waive per the above-noted regulation at § 54.5(d). The enrollment cannot proceed until the customer has received a written disclosure and has been given 3 business days to review and rescind if desired. It is the critical importance of this rescission right that compels us to maintain our proposal to include information about this right in the contract summary and to agree with Shipley to place it in a more logical, prominent location in the summary. The contract summary is to accompany the disclosure statement per paragraph (i) of § 54.5.

 We decline OCA's suggestion that we require an oral presentation of the disclosure in addition to a written version. First, not all sales involve an agent who would be able to provide an oral presentation (direct mail, internet, etc.). Secondly, we find this type of requirement is more appropriately addressed in the Chapter 111 residential supplier marketing regulations and, in fact, those rules do have requirements similar to what OCA is suggesting. See 52 Pa. Code §§ 111.12(4) and (5) for examples of requirements upon sales agents. If more is needed in this regard, that can be considered during a future rulemaking specifically addressing marketing. We also decline to include the customer consent to the EDC information release in the contract summary. While this is important, and as such we are now including this in the disclosure statement, we find that this is not key information that a customer needs to compare or evaluate supplier offers. Again, we find that the contract summary must be kept as short and concise as possible to retain its effectiveness. For similar reasons, we reject the Low Income Advocates' appeal to keep EDC information in the summary. This information is not needed to evaluate or compare supplier offers. Further, having the EDC mentioned in the contract summary increases the risk of the customer confusing the EGS with the EDC and possibly concluding that the EDC endorses the product being offered or is a partner with the EGS.

 Finally, we reiterate that the contract summary should ideally be limited to one page if possible, recognizing that some supplier products may require additional explanation that necessitates more. The contract summary should be prominent and not buried among other enrollment documents. It should be in plain language and in a prominent, easy-to-read font size. It also needs to accompany the disclosure statement.

Other Topics

 RESA notes that the Commission did not propose any revisions to § 54.38 that requires EGSs to pay assessments pursuant to 66 Pa.C.S. § 510 of the Public Utility Code, even though this Section was invalidated by action of the Pennsylvania Supreme Court in 2005 and does not accurately describe the annual fee implemented by the Commission during its 2015-2016 Fiscal Year. Since the Commission does not collect the assessments as described in § 54.38, the continued inclusion of this section creates confusion because it does not accurately describe the annual fee collected by the Commission. Therefore, RESA recommends that § 54.38 be deleted in its entirety. RESA at 17.

Discussion

 We decline to adopt RESA's recommendation as it is beyond the scope of this proceeding and requires the Commission to republish the proposed changes for comment. The NPRM at this Docket addressed Subchapter A of Chapter 54 (relating to customer information). Whereas, § 54.38 is in Subchapter B of Chapter 54 (relating to electricity generation supplier licensing). See Section 202 of the Commonwealth Documents Law (''The agency text of any administrative regulation of change therein as finally adopted may contain such modifications to the proposed text as published pursuant to Section 201 as do not enlarge its original purpose. . . . ''). 45 P.S. § 1202.

Environmental Disclosure

 Marion Biddle writes to request that the proposed amendments to the regulations include a requirement to identify the source of the electricity customers will be purchasing and the resulting CO₂ produced by each type of fuel. She realizes the focus of these changes is fair pricing but believes that it also extremely important to stress the environmental cost of purchasing electricity based on different fuel sources. Biddle at 1.

Discussion

 Marion Biddle is correct in that the instant rulemaking concerns disclosure of terms and conditions at § 54.5, and that much of this is primarily related to pricing. We do note that if the customer is purchasing a renewable product or related products and services, this should be included in the disclosure under paragraphs (c)(5) and (c)(6) but this is not the same thing as the environmental disclosure Marion Biddle proposes. However, elsewhere, the Chapter 54 regulations do include a subsection addressing generation-source disclosure and renewable marketing. Specifically, 52 Pa. Code § 54.6 addresses supplier obligations to disclose generation-sources upon customer request, energy-efficiency information, environmental marketing claims, auditable trails of generation sources, use of the term ''green,'' etc. Admittedly, this regulation was promulgated in the 1990's and is in possible need of updating, which can be considered during a future rulemaking.

Implementation Timeline

 RESA notes that, generally, the changes proposed by the Commission would require EGSs to implement new business and operational protocols to ensure that their future customer disclosure statements and communications with customers conform with the content of the final regulations. More specifically, changes to the customer contract will require EGSs to review existing contracts, identify revisions that are needed and then undertake programmatic system changes to ensure that the changes are incorporated into the EGS's systems. Given that EGSs likely will already have other information technology changes underway or scheduled, RESA suggests that the Commission provide an additional 60 days after the date of publication of the final IRRC approved rules for EGSs to implement the final regulations.

 Relatedly, as part of the Commission's Final Rulemaking Order specifying the approved revisions, RESA requests that the Commission clarify that the new requirements are prospective and should be incorporated into EGS contracts starting 60 days after the date of final publication of the IRRC approved revisions. Thus, pre-existing contracts prior to that start date in compliance with the current regulations will not be abrogated due to the passage of the new revised regulations. This clarity will ensure that then-existing customer contracts in compliance with then-existing regulations are not disrupted and all EGSs will be operating in the same manner to incorporate the new requirements in their future contracts. RESA at 17-18.

 IRRC points out that the expected date of delivery of the final regulation is January 2020. Given the current and ongoing problems the PUC describes in its rationale for the revised rules, IRRC encourages the PUC to work toward filing the final regulation sooner, if possible. IRRC at 2.

Discussion

 We agree with RESA that suppliers will need time to revise their disclosure documents and contract summaries, and to put in place the new ban on ETF's during the last 30 days of a contract. Accordingly, we will provide 60 days after the date of publication of the final IRRC approved rules for EGSs to implement the final regulations. We further agree with RESA that the new requirements are prospective and should be incorporated into EGS contracts starting 60 days after the date of final publication. Accordingly, pre-existing contracts prior to that start date will not be interfered with nor abrogated due to the enactment of the new revised regulations.

Costs and Economic Impact

 IRRC notes that economic and fiscal impacts of the regulation must be considered in their determination of whether a regulation is in the public interest. 71 P.S. § 745.5(a)(4) and (10), and § 745.5b(b)(1). IRRC indicates that the responses submitted with the proposed regulation to the Regulatory Analysis Form (RAF) Questions (19), (23) and (23a) are not sufficient to determine whether the regulation is in the public interest relating to the criterion of economic impact and clarifies that these RAF questions do not ask whether costs and savings are due or undue, but rather ask for specific cost estimates. Even if costs or savings are estimated to be zero, the PUC's responses should reflect that rather than state the required cost data is ''Not Applicable.'' In addition, commentators have stated there are impacts on pricing relating to elimination of ETFs toward the end of the contract period. Therefore, IRRC asks the PUC to review its responses to these RAF questions and provide the best estimates of costs in the RAF submitted with the final regulation so that IRRC has the information required by the Regulatory Review Act to determine whether the final regulation is in the public interest. IRRC at 2.

Discussion

 Initially, we note that EGS cost data is not available to the Commission and EGSs are not willing to provide such data as it would reveal market sensitive proprietary information. The Commission had sought EGS cost impacts through the Notice of Proposed Rulemaking (NPRM) Order. Specifically, in the NPRM Order we acknowledged that the ETF prohibition was not appropriate for large commercial or industrial customers as early exits from contracts can result in significant financial loss for the EGS. We then invited parties to provide perspectives relating to any possible unintended consequences that could result from the new rule to prohibit ETS in the last 60 days of a contract.²⁷ The Commission received several responses from suppliers indicating the potential cost impacts to EGSs if the proposed rule was adopted. While these responses indicated that there was a potential that EGSs may lose money if a customer left the contract early, these comments indicated that such losses, if incurred at all, would depend on the particular situation. See NEMA Comments at 2—4; RESA Comments at 12-13; Shipley Comments at 2-3. Thus, even the EGSs that commented on cost impacts admitted that the number and magnitude of related costs was speculative at best. With that said, the Commission recognized that there are costs involved and revised the final rule shortening the ETF prohibition period to when the options notice is given to the customer about 30 days before the end of the contract. This revision further minimizes any cost impacts to EGSs, as acknowledged by Shipley, who proposed that the ETF prohibition be subsequent to a single customer notice given 30 to 45 days before the end of a contract. See Shipley Comments at 2-3.

 The Commission also recognized the cost impacts to customers, which include small business customers. We recognized that the customer is also subject to financial risk based on the actions of the supplier if a switch does not occur on the date the customer requested. We specifically noted that if the supplier would submit the request early, the customer would be subject to the ETF or if submitted late be subject to higher prices. The Commission found, in recognizing that costs may result if a customer leaves a contract early, that suppliers are sophisticated enough to be able to hedge against any potential losses that may occur due to a customer leaving a contract less than 30 days before it ends and that the supplier, not the residential or small commercial customer, should be the one to bear that risk.

 Regarding potential costs related to complying with the remainder of the amendment to the EGS disclosure rules, we note that the EGSs already have an obligation to craft and provide the disclosures to customers. We also note that EGSs must revise these disclosures as necessary to conform to any new or revised offers they are making to the public. Accordingly, any new costs would be marginal to revise any existing supplier offers. We note that several of the changes are intended to reduce supplier costs by making the disclosure requirements similar to the natural gas supplier disclosure rules, for those suppliers that serve both markets, and by eliminating information, such as EDC contact information, that are likely to reduce customer confusion and result in fewer customer service calls.

 Based on the best available data, the Commission believes that costs associated with the amendments to these rules are minimal and transitory. This is based on the comments provided indicating that EGSs can adjust their risk management practices to avoid or minimize any potential risk when developing new offers. In addition, at the suggestion of RESA, the Commission agreed to delay the effective date of the rules by 60 days to give suppliers time to revise their contracts and disclosure statements, further reducing the cost impacts of the rules. In addition, the new rules will reduce costs for customers, including small business customers, by eliminating ETFs in the last 30 days of a contract and providing enough information so that they can make an apples-to-apples comparison of supplier offers to determine which offer is beneficial to them. All of this demonstrates that the Commission has endeavored to obtain and present the cost information available.

Regulatory Review

 Under Section 5(a) of the Regulatory Review Act, the Act of June 30, 1989 (P.L. 73, No. 19) (71 P.S. §§ 745.1—745.15), the agency submitted a copy of the proposed rulemaking, which was published as proposed at 48 Pa.B. 1696 on March 24, 2018, and served March 13, 2018, to IRRC, the Chairpersons of the House Committee on Consumer Affairs, and the Chairpersons of the Senate Committee on Consumer Protection and Professional Licensure, for review and comment. In compliance with Section 5(c), the agency also provided the Commission and the Committees with copies of all comments received.

 This final form regulation 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 the Independent Regulatory Review Commission on June 18, 2020, in accordance with Section 5.1(e) of the Act.

Conclusion

 The revisions of the standards and pricing practices for retail electricity service at Section 54.3; the disclosure statement for residential and small business customers at Section 54.5, including the proposed changes to the EGS Contract Summary; marketing/sales activities at Section 54.7; and Section 54.10, notice of contract expiration or change in terms for residential and small business customers, are intended to increase consumer protection and better inform customers about the terms and conditions of an EGS contract. The changes will also make these regulations more consistent with the analogous natural gas regulations by reducing consumer confusion and costs for suppliers that provide both services. These regulations, as developed after consideration of comments from affected parties and from the previous proceedings leading up to this, provide for enhanced information from EGSs to customers and help ensure that customers will have this information at hand when considering the various alternatives for purchasing future electric generation supply.

 Well-informed customers are essential participants in a successful competitive retail market. By updating these regulations to provide customers with accurate, timely pricing information when they are shopping for electric generation supply, we intend to create a more user-friendly marketplace that should continue to attract increased numbers of customers.

 Accordingly, under Sections 501 and 1501 of the Public Utility Code, 66 Pa.C.S. §§ 501 and 1501; sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240), known as the Commonwealth Documents Law (45 P.S. §§ 1201 and 1202), and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1, 7.2 and 7.5; the Regulatory Review Act, 71 P.S. §§ 745.1 et seq.; section 204(b) of the Commonwealth Attorneys Act, 71 P.S. § 732-204(b); 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, the Commission seeks to finalize amendments to regulations at 52 Pa. Code §§ 54.3, 54.5, 54.7, and 54.10, as set forth in Annex A, attached hereto; Therefore,

It Is Ordered That:

 1. The regulations of the Commission, 52 Pa. Code Chapter 54, are amended by amending §§ 54.3, 54.5, 54.7 and 54.10 to read as set forth in Annex A,

 2. The Law Bureau shall submit this Order, Attachment A and Annex A for review by the Independent Regulatory Review Commission and the Legislative Standing Committees.

 3. The Law Bureau shall submit this Order, Attachment A and Annex A to the Office of Attorney General for review and approval and to the Governor's Budget Office for review for fiscal impact.

 4. The Law Bureau shall deposit this Order, Attachment A and Annex A with the Legislative Reference Bureau to be published as final in the Pennsylvania Bulletin.

 5. The final regulations embodied in Annex A shall become effective 60 days after publication in the Pennsylvania Bulletin.

 6. The Secretary shall serve a copy of this Order, Attachment A and Annex A upon all licensed Electric Generation Suppliers, jurisdictional electric distribution companies, the Bureau of Investigation and Enforcement, the Office of Consumer Advocate, and the Office of Small Business Advocate.

 7. The Office of Competitive Market Oversight shall electronically send a copy of this Order, Attachment A and Annex A, to all persons on the contact list for the Committee Handling Activities for Retail Growth in Electricity.

 8. A copy of this Order, Attachment A and Annex A, shall be posted on the Commission's website at the Office of Competitive Market Oversight web page.

 9. The contact persons for this matter are Daniel Mumford in the Office of Competitive Market Oversight (717) 783-1957, dmumford@pa.gov; Matthew Hrivnak in Bureau of Consumer Services (717) 783-1678, mhrivnak@pa.gov, and Kriss Brown in the Law Bureau (717) 787-4518, kribrown@pa.gov. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Laura Griffin, Regulatory Review Assistant, Law Bureau, (717) 772-4597.

ROSEMARY CHIAVETTA, 
Secretary

 (Editor's Note: See 50 Pa.B. 3355 (July 4, 2020) for IRRC's approval order.)

 Fiscal Note: Fiscal Note 57-319 remains valid for the final adoption of the subject regulations.

Attachment A

Electric Generation Supplier Contract Summary

Electric Generation Supplier Information	Name, telephone number, website, etc. Plain language statement that EGS is responsible for generation charges.
Price Structure	Fixed or variable. If variable, based on what? If variable, how often is the rate expected to vary? If variable, give any applicable ranges/ceilings. If no ranges/ceilings, a plain language statement indicating this fact. If variable, describe when the customer will receive notification of price changes in relation to time of month, final monthly meter read, billing cycle or when the price takes effect.
Generation/Supply Price	$/kWh or ¢/kWh. If variable rate, the first billing cycle's rate. Full disclosure of any introductory price, including the introductory price and the price after the introductory period expires. Full disclosure of any fees in addition to the per kWh price.
Generation Price at Various Usage Levels (This row is required only if the price varies by usage and/or there are fees in addition to the per kWh price. See 52 Pa. Code §§ 54.5(c)(4) and 54.7.)	Usage:  Price per kWh:	500 kWh	1,000 kWh	2,000 kWh
Statement Regarding Savings	Plain language that the supply price may not always provide savings to the customer.
Deposit Requirements	Any deposit requirements necessary for a customer and any terms associated with that deposit, in plain language.
Incentives (This row is required only if the supplier is offering any special incentives.)	Any bonuses, discounts, cashback, etc. offers and any associated terms, in plain language.
Contract Start Date	Plain language regarding start of EGS service (meter reads/billing cycles/etc.).
Contract Duration/Length	In months, billing cycles, etc.
Cancellation/Early Termination Fees	Yes or no. If yes, describe the amount of the fee and how to avoid that fee, if possible.
End of Contract	Treatment of customer at end of contract. Timing of notices.
Right of Rescission:	An explanation of the customer's 3-day right of rescission per 52 Pa. Code § 54.5(d) and how to exercise this right.

Annex A

TITLE 52. PUBLIC UTILITIES

PART I. PUBLIC UTILITY COMMISSION

Subpart C. FIXED SERVICE UTILITIES

CHAPTER 54. ELECTRICITY GENERATION CUSTOMER CHOICE

Subchapter A. CUSTOMER INFORMATION

§ 54.3. Standards and pricing practices for retail electricity service.

 In furnishing retail electricity service, EDCs and EGSs or any entity that otherwise provides retail electricity service information to customers, shall comply with the following:

 (1) Use common and consistent terminology in customer communications, including marketing, billing and disclosure statements.

 (i) Use the term EDC as described in § 54.2 (relating to definitions) as a standard term.

 (ii) Use the terms in accordance with the glossary posted at www.PaPowerswitch.com or other successor media platform as determined by the Commission.

 (2) For residential and small commercial customers, contracts for retail electric service entered into after September 30, 2020, may not include any fees to be paid by the retail electric customer for terminating a fixed duration contract between the date the options notice required in § 54.10(2) (relating to notice of contract expiration or change in terms for residential and small business customers) is issued and the expiration of the fixed duration contract.

§ 54.5. Disclosure statement for residential and small business customers.

 (a) The agreed upon prices in the disclosure statement must reflect the marketed prices and the billed prices.

 (b) The EGS shall provide the customer written disclosure of the terms of service at no charge whenever:

 (1) The customer requests that an EGS initiate service.

 (2) The EGS proposes to change the terms of service.

 (3) Service commences from a default service provider.

 (c) The contract's terms of service shall be disclosed, including the following terms and conditions, if applicable:

 (1) Disclosure of generation charges must conform to the following requirements:

 (i) If the customer will be billed under a price per kilowatt-hour price structure, generation charges must be disclosed according to the actual prices per kilowatt-hour.

 (ii) If a customer will not be billed under a price per kilowatt-hour price structure, the contract's terms must clearly explain the pricing structure and what the customer's price for generation charges will be for a given period of time.

 (iii) Generation charges must include an estimate of all applicable taxes except for State sales tax and county tax.

 (2) If the price is introductory, the pricing statement must include a statement that the price is an introductory price, the duration of the introductory period and the price for the first billing cycle after the introductory period.

 (3) If the price is variable, the variable pricing statement must include:

 (i) Conditions of variability (state on what basis prices will vary) including the factors that the EGS will rely upon to establish the variable price.

 (ii) Limits on price variability:

 (A) If there is a limit on price variability, such as a specific price cap, a maximum percentage increase in price between billing cycles or minimum/maximum charges per kilowatt-hour for electricity during the duration of the contract, the EGS shall clearly explain the applicable limits. The EGS shall also state that the price can change each billing period, which must be printed in font size larger than the font size appearing in the terms of service.

 (B) If there is not a limit on price variability, the EGS shall clearly and conspicuously state that there is not a limit on how much the price may change from one billing cycle to the next. The EGS shall also state that the price can change each billing period, which must be printed in font size larger than the font size appearing in the terms of service.

 (iii) The price to be charged, per kilowatt-hour, for the first billing cycle of generation service.

 (iv) A description of when and how the customer will receive notification of price changes. If the customer will not know the price until the time of billing, this must be disclosed in font size larger than the font size appearing in the terms of service.

 (4) If the unit price changes based on actual customer usage or if the offer includes fees in addition to the unit price, the price per kWh must factor in all costs associated with the rate charged to the customer, including any fees, and show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format. If the offer includes an introductory price, the disclosure statement must show the average price per kWh of the introductory price, including any fees, and the price offered after the introductory period, including any fees, in separate tables.

 (i) If the price is a fixed monthly amount, including any fees, that does not change based on actual customer usage, the disclosure statement must show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format.

 (ii) If the price varies based on when the customer actually uses electricity, such as a time-of-use offer, the disclosure statement must show the price per kWh for each time period in table format.

 (5) An itemization of basic and nonbasic charges distinctly separate and clearly labeled.

 (6) The duration of the agreement, which includes:

 (i) The starting date.

 (ii) The expiration date, if applicable.

 (7) An explanation of sign-up bonuses, add-ons, limited time offers, other sales promotions and exclusions, if applicable.

 (8) An explanation of prices, terms and conditions for special services, including advanced metering deployment, if applicable.

 (9) The cancellation provisions, if applicable.

 (10) The renewal provisions, if applicable.

 (11) An explanation of limits on price variability, penalties, fees or exceptions, printed in font size larger than the font size appearing in the terms of service, but not less than 12-point font. Penalties and fees must be disclosed in actual dollars or a specific method for determining the actual dollars must be disclosed. This explanation must include a statement advising the customer that the customer will not be subject to a penalty or fee if the customer terminates the contract at any time between the date the options notice required under § 54.10(2) (relating to notice of contract expiration or change in terms for residential and small business customers) is issued and the expiration of the fixed duration contract.

 (12) Customer contact information that includes the name of the EGS, the EGS's address, telephone number, Commission license number and Internet address, if available.

 (13) A statement providing that information about shopping for an electric supplier is available at www.PaPowerSwitch.com or other successor media platform as determined by the Commission, by calling the Commission at (800) 692-7380 and the Office of Consumer Advocate at (800) 684-6560 or at www.oca.state.pa.us.

 (14) For contracts with variable pricing, the EGS shall provide:

 (i) A telephone number and Internet address at which a customer may obtain the previous 24 months' average monthly billed prices for that customer's rate class and EDC service territory. If an EGS has not been providing generation service in a rate class and EDC service territory for 24 months, the EGS shall provide the average monthly billed prices for the months available to date. If price history or representative price information is not available and the offer is materially different from other offers made by the EGS, the EGS shall inform the customer of this fact.

 (ii) In plain language, a statement that historical pricing is not indicative of present or future pricing.

 (d) Customers shall be provided a 3-day right of rescission period following receipt of the disclosure statement.

 (1) The 3-day right of rescission is 3 business days.

 (2) The 3-day right of rescission begins when the customer receives the written disclosure.

 (3) The customer may cancel in writing, orally or electronically, if available.

 (4) Waivers of the 3-day right of rescission are not permitted.

 (e) Definitions for generation charges and transmission charges, if applicable, are required on electric disclosure statements and must be defined in accordance with the glossary posted at www.PaPowerSwitch.com or other successor media platform as determined by the Commission. Definitions for each of the basic and nonbasic services, if applicable, are required. The definition section of the disclosure statement must be distinctly separate.

 (f) The EGS shall include in the customer's disclosure statement the following statements which may appear together in a paragraph:

 (1) ''Generation prices and charges are set by the electric generation supplier you have chosen.''

 (2) ''The Public Utility Commission regulates distribution prices and services.''

 (3) ''The Federal Energy Regulatory Commission regulates transmission prices and services.''

 (g) Disclosure statements must include the following customer notifications for fixed duration or non-fixed duration contracts:

 (1) For fixed-duration contracts, disclosure statements must include the following notification: ''If you have a fixed duration contract that will be ending, or whenever <EGS name> wants to change the contract, you will receive two separate notices before the contract ends or the changes happen. You will receive the first notice 45 to 60 days before, and the second notice 30 days before the expiration date or the date the change becomes effective. These notices will explain your options.''

 (2) For contracts that are not fixed-duration contracts, disclosure statements must include the following notification: ''If <EGS name> wants to change the contract, you will receive two separate notices before the changes happen. You will receive the first notice 45 to 60 days before the change, and the second notice 30 days before the change. These notices will explain your options.''

 (h) If the default service provider changes, the new default service provider shall notify customers of that change, and provide customers with its name, address, telephone number and Internet address, if available.

 (i) The EGS shall provide, with the disclosure statement, a separate EGS contract summary in a format provided by the Commission.

 (j) If the contract is assignable, the EGS shall inform the customer at the time the parties enter into the contract. Prior to a contract assignment, the EGS shall provide notice to the affected customer, the affected EDC and the Commission. The customer notice must include the name of the new EGS, the contact information for the new EGS, the estimated month and year that the assignment is expected to occur, and language informing the customer that contract terms and conditions remain unchanged.

 (k) If the EGS intends on obtaining customer account information from the EDC, the EGS shall inform the customer of the specific type of information that may be obtained, such as usage data, the purpose for obtaining this information and that the customer is consenting to the EDC releasing this information by entering into this contract. The EGS shall also inform the customer that the EGS will maintain the confidentiality of a customer's personal information including the customer's name, address, telephone number, electric usage and historic payment information, as required by applicable Commission regulations and Federal and State laws.

§ 54.7. Marketing/sales activities.

 (a) Advertised prices must reflect prices in disclosure statements and billed prices.

 (b) If the unit price changes based on actual customer usage or if the offer includes fees in addition to unit prices, written or electronic marketing materials that offer terms of service for acceptance by consumers and authorizes enrollment must factor in all costs associated with the rate charged, including any fees, and show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format. If the offer includes an introductory price, the EGS shall show the average price per kWh of the introductory price, including any fees, and the price offered after the introductory period, including any fees, in separate tables.

 (1) If the price is a fixed monthly amount, including any fees, that does not change based on actual customer usage, the EGS shall show the average price per kWh for usages of 500, 1,000 and 2,000 kWh of electricity in a table format.

 (2) If the price varies based on when the customer uses electricity, such as a time-of-use offer, the EGS shall show the price per kWh for each time period in a table format.

 (3) The EGS shall note the effective date of the prices shown in the table provided under paragraph (1) or (2).

 (c) Advertising materials targeted for residential and small business sales shall be made available upon request of the Commission in the event of a formal or informal complaint or investigation.

§ 54.10. Notice of contract expiration or change in terms for residential and small business customers.

 An EGS shall provide the following notices to customers prior to the expiration of a fixed duration contract or prior to a change in contract terms:

 (1) An initial notice shall be provided to each affected customer 45 to 60 days prior to the expiration date of the fixed duration contract or the effective date of the proposed change in terms. For customers who have elected to receive electronic communications from the EGS, the notice shall be transmitted in the manner chosen by the customer. The initial notice must include:

 (i) A general description of the proposed change in terms of service.

 (ii) The date a change shall be effective or when the fixed duration contract is to expire.

 (iii) An explanation of why a change in contract terms is necessary.

 (iv) A statement indicating when a follow-up options notice shall be issued with details regarding the proposed change.

 (v) A statement explaining that the options notice must discuss the customer's options to the proposed change in terms of service or expiring fixed duration contract.

 (vi) A statement indicating whether the existing fixed duration contract has a cancellation fee, and an explanation of the fee amount and how to avoid the fee, including a notice that the customer is not subject to the cancellation fee if the customer terminates the contract at any time after the customer receives the options notice required under § 54.10(2).

 (2) An options notice shall be provided, by first class mail, to each affected customer at least 30 days prior to the expiration date of the fixed duration contract or the effective date of the proposed change in terms. The options notice must include:

 (i) A statement advising the customer of the specific changes being proposed by the EGS and informing the customer of how to exercise the customer's options, including the customer's ability to accept the proposed changes, to choose another product offering from the customer's existing EGS, to select another EGS or to return to default service.

 (ii) Information regarding new pricing or renewal pricing including the price to be charged, per kilowatt-hour, for the first billing cycle of generation service:

 (A) If a customer fails to respond to the options notice and is converted to a month-to-month contract, the EGS shall provide a disclosure statement under § 54.5 (relating to disclosure statement for residential and small business customers).

 (I) Notice of a subsequent change in pricing shall be provided to the customer at least 30 days prior to the new price being charged.

 (II) For customers who have elected to receive electronic communications from the EGS, notice of the change in pricing shall be transmitted in the manner chosen by the customer. For all other customers, notice shall be provided by first class mail.

 (B) If a customer fails to respond to the options notice and is entered into a new fixed duration contract, the EGS shall provide the fixed, per kilowatt-hour price to be charged and term length of the contract.

 (iii) The telephone numbers and Internet addresses, as applicable, for the Office of Consumer Advocate, the Commission and PaPowerSwitch.com.

 (iv) Language clearly visible on the front of the envelope used to provide the options notice stating that it contains important information regarding the expiration or changes in terms of the customer's electric supply contract.

 (v) A statement indicating whether the existing fixed duration contract has a cancellation fee and, if so, that the customer is not subject to the cancellation fee if the customer terminates the contract at any time between the date of the options notice and the expiration date of the fixed duration contract.

 (3) When a customer fails to respond to either notice, the following apply:

 (i) A fixed duration contract shall be converted to one of the following:

 (A) A month-to-month contract, either at the same terms and conditions or at revised terms and conditions, as long as the contract does not contain cancellation fees.

 (B) Another fixed duration contract, as long as the new contract includes a customer-initiated cancellation provision that allows the customer to cancel at any time, for any reason, and does not contain cancellation fees.

 (ii) The converted contracts shall remain in place until the customer chooses one of the following options:

 (A) Select another product offering from the existing EGS.

 (B) Enroll with another EGS.

 (C) Return to the default service provider.

[Pa.B. Doc. No. 20-1029. Filed for public inspection July 31, 2020, 9:00 a.m.]

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²²  See Order on the Interim Guidelines Regarding Notification by an Electric Generation Supplier of Operational Changes Affecting Customer Service and Contracts, Docket No. M-00960890F0013 (Order entered August 14, 1998).

²³  See id. at Appendix, Guideline (II)(B)(1).

²⁴  See id. at 9—13.

²⁵  See Opinion and Order Re Petition of Metropolitan Edison Company for Approval of a Default Service Program for the Period Beginning June 1, 2019 through May 31, 2023, et al., Docket Nos. P-2017-2637855, et al. (Opinion and Order entered Sept. 4, 2018).

²⁶  52 Pa. Code § 69.1810. Retail rate design. Retail rates should be designed to reflect the actual, incurred cost of energy and therefore encourage energy conservation. The PTC should not incorporate declining blocks, demand charges or similar elements. The PTC for a particular customer class may be converted to a time of use design if the Commission finds it to be in the public interest.

²⁷  NPRM Order at 12-13.

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