NOTICES
PENNSYLVANIA PUBLIC
UTILITY COMMISSION
Supplier Door-to-Door and In-Person Marketing Moratorium, Proclamation of Disaster Emergency—COVID-19
[51 Pa.B. 4211]
[Saturday, July 31, 2021]Public Meeting held
July 15, 2021Commissioners Present: Gladys Brown Dutrieuille, Chairperson, Statement; David W. Sweet, Vice Chairperson; John F. Coleman, Jr.; Ralph V. Yanora
Supplier Door-to-Door and In-Person Marketing Moratorium, Proclamation of Disaster Emergency—COVID-19; M-2020-3019254
Order By the Commission:
On March 6, 2020, Governor Tom Wolf issued a Proclamation of Disaster Emergency that identified the COVID-19 pandemic as a disaster emergency affecting the entire Commonwealth. On March 16, 2020, relying on the Proclamation of Disaster Emergency and the Commission's authority, Chairman Gladys Brown Dutrieuille issued an Emergency Order prohibiting jurisdictional electric generation suppliers and natural gas suppliers (collectively, suppliers) from engaging in door-to-door, public event, and in-person sales and marketing activities during the pendency of the Proclamation of Disaster Emergency, or unless otherwise directed by the Commission. With this Order, the Commission further modifies the March 16, 2020, Emergency Order, as modified by the Orders entered June 4, 2020, December 3, 2020, and May 6, 2021, to lift the marketing moratorium for door-to-door, public event, and in-person sales and marketing activities, subject to the conditions established herein.
Background
The Governor issued the March 6, 2020, Proclamation of Disaster Emergency pursuant to subsection 7301(c) of the Emergency Management Services Code, 35 P.S. §§ 7101, et seq., and proclaimed the existence of a disaster emergency throughout the Commonwealth for a period of up to 90 days, unless renewed. The Proclamation of Disaster Emergency explicitly authorized and directed the suspension of ''the provisions of any regulatory statute prescribing the procedures for conduct of Commonwealth business, or the orders, rules or regulations of any Commonwealth agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with this emergency.''1 The Governor renewed2 the Proclamation of Disaster Emergency a total of five times.
On June 10, 2021, the Pennsylvania General Assembly passed a Concurrent Resolution terminating the Proclamation of Disaster Emergency. On June 11, 2021, the Governor signed House Bill 854, known as Act 21 of 2021, which provides for ''temporary regulatory flexibility authority'' by extending the suspension of certain regulatory statutes under 35 Pa.C.S. § 7301(f)(1) until September 30, 2021. We discuss these actions in further detail in our disposition. See H. Res. 106, Reg. Sess. of 2021 (Pa. 2021); Section 2101-F(a) of Act 175 of 1929, as amended by Act 21 of 2021.
The Commission has promulgated residential sales and marketing regulations for suppliers under its jurisdiction at 52 Pa. Code §§ 111.1—111.14. Regarding door-to-door, public event, and in-person sales and marketing activities, the Commission's regulations at 52 Pa. Code § 111.2 provide the following:
Door-to-door sales—A solicitation or sales method whereby an agent proceeds randomly or selectively from residence to residence.. . .Public event—An event in a public location which may facilitate sales and marketing activities or may result in a customer enrollment transaction.Sales and marketing—The extension of an offer to provide services or products communicated orally, electronically or in writing to a customer.52 Pa. Code § 111.2.
The Chairman's March 16, 2020, Emergency Order prohibited jurisdictional suppliers from engaging in door-to-door, public event, and in-person sales and marketing activities during the pendency of the Governor's Proclamation of Disaster Emergency, or unless otherwise directed by the Commission. The Chairman directed the cessation of these sales and marketing activities to protect the health and safety of customers and supplier employees by minimizing social contact to reduce the spread of COVID-19. The Commission ratified the Emergency Order at the above-referenced docket number on March 26, 2020, finding that it was in the public interest.
On May 21, 2020, NRG Energy, Inc. (NRG) filed its first Petition for Partial Rescission of the Commission's March 16, 2020, Emergency Order. By Order entered June 4, 2020, the Commission granted NRG's May 21, 2020, Petition for Partial Rescission with modification. The Commission lifted the moratorium on in-person sales and marketing activities for all jurisdictional suppliers as it pertains to activities at retail businesses open as a result of the Governor's directives regarding the yellow and green phases. The Commission directed suppliers to report their intent to resume in-person sales and marketing activities at retail businesses to the Commission's Office of Competitive Market Oversight (OCMO) and the Bureau of Consumer Services (BCS). The Commission also directed suppliers engaging in in-person sales and marketing activities at retail businesses to comply with all relevant orders and guidance of the Governor and the Secretary of Health.
On June 15, 2020, StateWise Energy Pennsylvania, LLC (StateWise) and SFE Energy Pennsylvania, LLC (SFE) filed a Petition for Partial Rescission, or alternatively, Petition for Waiver, of the Commission's March 16, 2020, Emergency Order. StateWise and SFE requested relief from the prohibition on door-to-door sales and marketing activities for counties in the yellow and green phases of the Governor's reopening plan. Then, on June 18, 2020, Interstate Gas Supply, Inc. d/b/a IGS Energy's (IGS) filed a Petition for Partial Rescission of the Emergency Order seeking relief from the prohibition on door-to-door, public event, and in-person sales and marketing activities.
By Order entered July 16, 2020, the Commission denied StateWise and SFE's June 15, 2020, Petition for Reconsideration as well as IGS's June 18, 2020, Petition for Reconsideration. The Commission held that StateWise, SFE, and IGS did not offer sufficient justification to rescind the portions of the March 16, 2020, Emergency Order, as modified by the June 4, 2020, Order.
On July 13, 2020, Direct Energy Business, LLC, Direct Energy Services, LLC, and Direct Energy Business Marketing, LLC's (collectively, Direct Energy) filed a Petition for Clarification or Modification of the Commission's June 4, 2020, Order and March 16, 2020, Emergency Order. Direct Energy requested relief from the portions of the Orders that prohibited in-person sales and marketing activities with commercial, industrial, and governmental customers that have reopened their businesses as result of the Governor's directives. On July 24, 2020, IGS filed a Petition for Rehearing and/or Reconsideration of the Commission's July 16, 2020, Order. IGS sought reconsideration to allow door-to-door and by-appointment in-person sales and marketing activities.
On August 27, 2020, the Commission entered two Orders. In its first Order, the Commission denied Direct Energy's July 13, 2020, Petition for Clarification or Modification finding that Direct Energy did not raise compelling reasons to alter the Commission's June 4, 2020, Order or March 16, 2020, Emergency Order. In its second Order, the Commission denied IGS's July 24, 2020, Petition for Reconsideration finding that IGS did not present arguments that warranted reconsideration of the Commission's July 16, 2020, Order.
Subsequently, on October 22, 2020, NRG filed its second Petition for Partial Rescission of the Commission's March 16, 2020, Emergency Order. NRG requested that the Commission rescind the portion of the Emergency Order that prohibits suppliers from engaging in in-person sales and marketing activities at public events only as it pertains to outdoor public events held in accordance with orders and directives issued by the Governor and Secretary of Health.
By Order entered December 3, 2020, the Commission granted NRG's October 22, 2020, Petition for Partial Rescission. The Commission lifted the moratorium on in-person sales and marketing activities for all suppliers as it pertains to activities at outdoor public events held in accordance with orders and directives issued by the Governor and Secretary of Health. The Commission also directed suppliers to report their intent to resume in-person sales and marketing activities at outdoor public events to OCMO and BCS. The Commission further directed suppliers engaging in in-person sales and marketing activities at retail businesses to comply with relevant orders and guidance from the Governor and the Secretary of Health.
On March 29, 2021, the Retail Energy Supply Association (RESA) filed a Petition for Partial Rescission of the Commission's March 16, 2020, Emergency Order requesting that the Commission rescind the portion of the Emergency Order that prohibits in-person sales and marketing activities with commercial and industrial customers.
By Order entered May 6, 2021, the Commission granted RESA's March 29, 2021, Petition for Partial Rescission. The Commission lifted the moratorium on in-person sales and marketing activities for all suppliers as it pertains to activities with commercial and industrial customers that are open. The Commission directed suppliers engaging in in-person sales and marketing activities with commercial and industrial customers to comply with all relevant orders and guidance of the Governor and Secretary of Health and to report their intent to resume those sales marketing activities to OCMO and BCS as previously required for other sales and marketing activities.
Simultaneously, on May 6, 2021, the Commission issued a Tentative Order requesting public comment on when and how the remaining provisions of the marketing moratorium should end. The Commission asked interested stakeholders to comment on a timeline for further modifying or lifting the March 16, 2020, Emergency Order and the metrics that the Commission may use to determine whether to modify or lift the marketing moratorium. The Commission acknowledged that public health and safety concerns may remain if the COVID-19 pandemic has not fully abated. Thus, we also asked stakeholders to comment on any conditions that may be necessary for the safe resumption of prohibited in-person sales and marketing activities, including possible training for suppliers regarding the Commission's marketing regulations and the need for any additional reporting requirements beyond those found at 52 Pa. Code § 111.14.
Further, the Commission sought comment on any additional actions that may be necessary with regard to (1) our June 4, 2020, Order lifting the moratorium on in-person sales and marketing activities for all suppliers as it pertains to activities at retail businesses open as a result of the Governor's directives, and (2) our December 3, 2020, Order lifting the moratorium on in-person sales and marketing activities for all suppliers as it pertains to activities at outdoor public events held in accordance with orders and directives issued by the Governor and Secretary of Health. We also noted that parties should take into account the recent May 6, 2021, Order when filing comments in response to the Tentative Order. The Tentative Order was published in the Pennsylvania Bulletin on May 22, 2021, and comments were due within 30 days.
Seven parties filed comments in response to the Commission's May 6, 2021, Tentative Order, including Titan Gas LLC dba CleanSky Energy (CleanSky), the Office of Consumer Advocate (OCA),3 Energy Harbor LLC (Energy Harbor), NRG, PPL Electric Utilities Corporation (PPL), RESA, and TLP Software (TLP). We discuss these comments in detail below.
Discussion
We note that any issues we do not specifically address herein have been duly considered and will be denied without further discussion. It is well settled that the Commission is not required to consider expressly or at length each contention or argument raised by the parties. Consolidated Rail Corporation v. Pa. Public Utility Commission, 625 A.2d 741 (Pa. Cmwlth. 1993); see also, generally, University of Pennsylvania v. Pa. Public Utility Commission, 485 A.2d 1217 (Pa. Cmwlth. 1984).
CleanSky Comments
CleanSky states that it supports the timing of the Commission's initiation of a process to further modify or lift the March 16, 2020, Emergency Order. CleanSky suggests that the Commission take into consideration the same data used by the Governor's office to revise and lift mitigation measures and restrictions in addressing the current supplier door-to-door and in-person marketing moratorium. CleanSky recommends that all suppliers approach re-entry into Pennsylvania as if it were a brand-new market. In this regard, CleanSky proposes that suppliers conduct a soft launch with a small number of agents in the field for a period of two to three weeks. After this time, CleanSky suggests that suppliers conduct a field audit visit to confirm that field agents are adhering to all measures directed by the Commission and the supplier regarding public health and safety. CleanSky further suggests that, after the audit, suppliers resume normal operations subject to additional periodic field audit visits. CleanSky Comments at 1.
CleanSky further recommends that the Commission require suppliers to develop and provide the Commission with a copy of the supplier's internal requirements and health and safety guidelines for best practices to be followed by the supplier's vendors and field agents. In conjunction with this requirement, CleanSky recommends that each supplier collect from their field agents a completed and signed training acknowledgement form. Under CleanSky's proposal, the form would state that the field agents completed refresher training on the supplier's program, state specific marketing requirements, and appropriate COVID-19 health and safety measures, including the use of personal protective equipment, and other steps recommended by the Department of Health, the Centers for Disease Control and Prevention (CDC), and the supplier's best practices. CleanSky also supports the idea for all suppliers to attend a remote Commission training as a refresher program and to ensure vendor training materials are compliant. CleanSky believes that, if these requirements or similar requirements are put in place, additional monitoring, oversight, or reporting may not be necessary. CleanSky Comments at 2.
OCA Comments
The OCA's requests that the Commission continue the prohibition of residential door-to-door sales until longstanding concerns about this type of marketing are addressed and alleviated. In addition, the OCA suggests that the Commission consider permanently halting door-to-door sales to residential customers or imposing much stricter substantive restrictions on this activity. OCA Comments at 7-8.
If the Commission allows door-to-door sales and marketing activities to resume, the OCA recommends that these activities only be permitted in counties with 70% of the adult population having been fully vaccinated. The OCA notes that information on county vaccination rates is routinely published by the Pennsylvania Department of Health and provides some reasonable level of protection to residents and sales agents. According to the OCA, because suppliers are currently required under 52 Pa. Code § 111.14 to notify BCS of the geographical area where the supplier intends to conduct door-to-door sales campaign that day, this safeguard should be easy to administer. The OCA suggests that the supplier check and report to BCS the vaccination rate of a county before going door-to-door in that county. OCA Comments at 11-12.
Additionally, the OCA notes that there is no guarantee that a customer or sales agent will not contract the virus through an unwanted, unsolicited door-to-door sales interaction. The OCA states that, when suppliers conduct door-to-door sales during a pandemic, the interaction at the customer's door carries health risks and raises important considerations about customer privacy. The OCA recommends that all sales agents be equipped with contactless-tools for touching the customer's door and doorbell as well as sanitizing supplies to continuously clean any objects such as touch devices or clipboards used by customers. The OCA also recommends that any unvaccinated sales agents be required to wear a mask for the duration of the interaction and remain six to ten feet away from the customer's door at all times. Recognizing that social distancing may make it difficult for the agent to display a badge or provide a business card or other piece of material to identify themselves and the supplier they are representing and to show the requisite information to the customer, pursuant to the Commission's regulations at 52 Pa. Code §§ 111.8(a) and 111.9(d)(2), the OCA recommends that sales agents be required to hold or display a large badge or sign with font any customer can read from a distance. Additionally, the OCA recommends that the Commission temporarily waive the requirement of sales agents to hand over a business card or document, pursuant to 52 Pa. Code Section 111.9(d)(2), to reduce close contact. Rather, the OCA recommends that the sales agent initiate the door-to-door interaction with the following statement:
I am an agent of a licensed supplier of electric/gas energy asking if you want to hear a sales presentation on my products and services. You are under no obligation to purchase my products and services to have your current electric and gas service continue. Are you comfortable to talk to me about the potential benefits of my product or service? If so, you may ask me to leave your property at any time.Given the unknown vaccination and health status of the customers at the door, the OCA recommends that the sales agent be required to ask the customer if they are comfortable speaking to the sales agent and to leave the property if the customer's response is ''no.'' OCA Comments at 10, 15-16.
The OCA states that it shares the Commission's recognition and concern that resuming door-to-door marketing in Pennsylvania is likely to occur with untrained sales agents. It is the OCA's experience that many suppliers do not have a manager or other office in Pennsylvania. Rather, many suppliers conduct their business for telemarketing and door-to-door sales through third-party agents and those third-party agents, who may or may not be headquartered in Pennsylvania, then engage individuals, who may or may not be residents of Pennsylvania, to train and send out to knock on doors in locations in Pennsylvania where it is profitable to do so. For these reasons, the OCA states that there is a serious concern with respect to how the Commission should ensure each supplier has properly trained its third-party contractors and determine how those contractors train and supervise the conduct of their agents, most of whom are independent contractors whose earnings depend on a successful sale. Accordingly, the OCA recommends that suppliers should be limited to sending their own employees to conduct door-to-door sales, or if suppliers are permitted to use a third-party, the Commission should require suppliers to have their own supervisors making field visits to audit the sales agents during their door-to-door campaigns on the supplier's behalf. OCA Comments at 13-14.
Further, to improve the supplier's ability to monitor door-to-door marketing interactions, the OCA recommends that the Commission consider requiring all door-to-door sales agents to audio-record each interaction with a residential customer and require the supplier to retain the recording. Finally, the OCA recommends that the Commission, in collaboration with interested stakeholders, should jointly host marketing and sales compliance sessions for all suppliers' training managers. The OCA also suggests that the Commission require each supplier to identify and provide evidence of the actual training that has occurred both for its third-party contractors, as well as the contractor's sales agents. OCA Comments at 13-14.
RESA Comments
RESA believes that there is no longer any public health justification for a blanket prohibition on door-to-door or in-person sales and marketing activities, and that there are well-developed and clear regulatory requirements governing the sales and marketing activities of suppliers. RESA suggests that the Commission remove all remaining restrictions immediately. RESA argues that the reopening of other businesses in Pennsylvania, and the lack of other statewide restrictions indicate that no additional metrics should be required of door-to-door energy marketers. RESA Comments at 3—5.
Regarding conditions, RESA believes that continued adherence to whatever CDC guidelines remain in place is still critical and could be considered a condition. RESA also comments that suppliers could be required to self-certify that they will ensure that their direct representatives adhere to requirements and any other reasonable public health related precautions that are required of all citizens. For the short term, RESA details that sales representatives should continue to be screened for symptoms and not be permitted to engage in any face-to-face marketing if they are symptomatic. RESA states that the screening process should be left to the supplier. RESA notes that, for door-to-door encounters, which typically take place outside, the precautions of providing single-use marketing materials or the use of a sanitized tablet computer could be employed. The use of a mask should be optional while outdoors and could be required if the consumer requests it, but for indoor encounters, a mask requirement would be reasonable. RESA lastly avers that there is no public health reason to prevent in-person meetings between suppliers and potential customers at locations other than customer residences, since the consumer can ultimately decide whether he or she wants to participate in the meeting with the supplier's representative. RESA Comments at 6-7.
Concerning reporting requirements, RESA opines that, apart from the notifications to BCS and OCMO prior to launching a door-to-door campaign, no general reporting requirements are necessary. RESA argues the reporting of any employee health data, such as number of positive tests, is not within the Commission's purview, and therefore disclosure to the Commission would be inappropriate. RESA suggests that, if an employee were to test positive after having had customer encounters in the prior two weeks, the supplier must cooperate, to the extent it is able, with the contact tracing organization to inform those people of possible contact. RESA Comments at 6-7.
Finally, regarding training, RESA claims that many suppliers did retain their in-person marketing staffs, to the extent possible, and repurposed those individuals to customer service or other related tasks. As such, RESA states that not all employees are likely to have stale recollections of the rules. With a 15-month hiatus, however, RESA notes that a refresher training course performed by the supplier would not be unreasonable. Rather than causing further delay in the resumption of normal sales and marketing operations by requiring attendance at a Commission-developed training, RESA suggests that the Commission direct suppliers to develop and implement a refresher training course and certify to the Commission that they have done so or will complete the training within a reasonable time. RESA Comments at 8.
NRG Comments
NRG urges the Commission to lift the moratorium in its entirety, impose no new requirements or conditions on suppliers, and eliminate the additional reporting requirements imposed by the Orders that modified the Emergency Order to permit in-person sales at retail locations and outdoor events. In NRG's view, suppliers should not be subjected to restrictions on in-person sales and marketing activities that the Commonwealth is not imposing on other businesses. NRG notes that Pennsylvania has taken key steps forward in returning to some sense of normalcy. NRG also states that, since Pennsylvania has eliminated restrictions that interfered with the ability of businesses to operate for over a year, the circumstances prompting issuance of the Commission's Emergency Order are no longer present. NRG further contends that the Commission should not impose conditions or requirements on suppliers engaged in in-person sales and marketing activities beyond those already established by the Commission's regulations. NRG Comments at 1—5.
Energy Harbor Comments
Energy Harbor prefaces its comments by noting that the unavailability of door-to-door marketing and the imposition of restrictions on other in-person sales for more than one year due to the Commission's moratorium has adversely affected Energy Harbor's competitive energy business. Energy Harbor requests that the Commission eliminate the moratorium and allow competitive energy suppliers to resume in-person operations consistent with the directives of Governor Wolf. According to Energy Harbor, in-person sales and marketing activities provide an effective opportunity to explain to consumers how energy choice programs work by allowing consumers to ask specific questions about the terms and conditions of the offer and simultaneously review the offering documents. Energy Harbor Comments at 1-2, 5.
Energy Harbor comments that the Commonwealth's officials in charge of public health and safety have determined that no additional measures are necessary at this time. Accordingly, Energy Harbor's overarching view is that, with the Commonwealth's lifting of all mitigation measures, the Emergency Order should be rescinded in its entirety as soon as possible and should have been lifted along with the Commonwealth's lifting of mitigation measures on Memorial Day. To that end, Energy Harbor argues the Emergency Order should be rescinded by Secretarial Letter as soon as possible or that the Commission should issue an Order via notational voting rather than waiting until a public meeting. Energy Harbor Comments at 6-7.
Energy Harbor comments that mandatory refresher training for suppliers is not necessary as suppliers are capable of reviewing the regulations that have been in place for a decade and ensuring that their employees, vendors, and agents are aware of the applicable requirements. While Energy Harbor indicates that it would welcome the opportunity to participate in any refresher training offered by the Commission, it contends that participation should be not be a prerequisite to resuming in-person sales and marketing activities. If the Commission decides to require training, Energy Harbors comments that the Commission should not make it a condition that delays the resumption of such activities, but rather should direct suppliers to comply with the requirement within a certain number of days after resuming in-person sales and marketing activities. Energy Harbor Comments at 8.
Energy Harbor maintains that no additional reporting requirements are appropriate, given that industry standards must be established through regulations. Energy Harbor further argues that no justification exists to mandate that suppliers comply with reporting requirements that have not been suggested or imposed on other in-person activities engaged in by entities regulated by the Commission. Regarding the notification requirements applicable to the resumption of sales and marketing activities in retail establishments and at outdoor events set forth by the Commission's June 4, 2020, and December 3, 2020, Orders, Energy Harbor suggests that eliminating them would be consistent with the Commonwealth's lifting of mitigation measures and getting businesses back on course. Energy Harbor Comments at 9, 10.
TLP Software Comments
TLP urges the Commission to immediately lift the prohibition on door-to-door marketing and submits that no additional practices or requirements are needed to protect public health and safety. TLP argues that capacity restrictions and other mandates to limit transmission of COVID-19 were lifted on Memorial Day due to increasing vaccinations and a drop in new cases. TLP comments that the Commission should follow suit for door-to-door sales and marketing activities. TLP argues that door-to-door sales and marketing representatives are required to follow federal, state, and local safety rules that proved to be effective measures for minimizing exposure to COVID-19. Thus, TLP says that delaying the reinstatement of door-to-door sales and marketing activities compounds the economic impact that the business has already suffered without providing any material benefit to prospective customers and agents. TLP Comments at 1-2.
Additionally, like the OCA, TLP offers several comments on the Commission's door-to-door marketing rules going forward. TLP notes that the Commission's supplier marketing rules were developed in 2011. TLP recommends that the Commission update the recordkeeping requirements and the requirements regarding the verification process for door-to-door enrollments, among other things. TLP Comments at 2-3.
PPL Comments
As a general matter, PPL asks the Commission to strongly consider bolstering the Commission's regulations on door-to-door sales and marketing activities or prohibiting the practice altogether, even after the Commission modifies or lifts the current moratorium on door-to-door sales and marketing activities. PPL Comments at 4.
With regard to reporting requirements, PPL suggests that the Commission require to provide the BCS and the local distribution company with the names of vendors who are conducting door-to-door sales and marketing activities on behalf of the supplier. As for public safety measures, PPL recommends that door-to-door salespersons be required to follow all applicable CDC and Pennsylvania guidelines and requirements related to COVID-19 after the moratorium is lifted, and that such guidelines and requirements should be followed for however long they remain in effect. Additionally, regarding training, PPL supports requiring suppliers and their vendors to attend a Commission training to refresh their understanding of the Commission's marketing regulations before resuming the sales and marketing activities. PPL further maintains that sales and marketing activities should only resume after the suppliers, their agents, and their vendors undergo Commission training on the applicable Commission regulations. Moreover, PPL recommends that the Commission require suppliers to report vendor names to the Commission and the local distribution company. PPL notes that this requirement will prevent bad actor vendors form switching to another supplier after they are found to be in violation of the Commission's regulations. PPL Comments at 2—4, 5-6.
Disposition
By way of background, on June 10, 2021, the Pennsylvania General Assembly passed a Concurrent Resolution, which terminated the Governor's Proclamation of Disaster Emergency originally declared on March 6, 2020, and as amended and renewed, in response to COVID-19. In a related action, on June 11, 2021, Governor Wolf signed into law Act 21 of 2021 (Act 21), which provides ''temporary regulatory flexibility authority'' to ''Commonwealth agencies'' by suspending regulatory statutes prescribing the procedures for conduct of Commonwealth business, or an order, rule, or regulation which was suspended under the authority of the Governor. Such Orders continue to have the force and effect of law through September 30, 2021, unless sooner terminated by the authority initially authorizing them. For the reasons below, we further modify the March 6, 2020, Emergency Order, as modified by the Orders entered June 4, 2020, December 3, 2020, and May 6, 2021, to lift the moratorium on door-to-door, public event, and in-person sales and marketing activities. Further, consistent with the temporary regulatory authority flexibility authorization of Act 21, we also establish conditions to ensure the safety of these sales and marketing activities.
Upon review and consideration of the comments received in response to the Tentative Order, we find that it is reasonable and appropriate to further modify the March 16, 2020, Emergency Order. The majority of the parties that filed comments request that the Commission immediately end the moratorium on door-to-door sales and marketing activities. See gen'ly RESA Comments; NRG Comments; Energy Harbor Comments; TLP Comments. These parties point out that the circumstances prompting the moratorium no longer exist. For instance, RESA states that there is no longer any public health basis for the moratorium, and TLP notes that there has been a substantial drop in new COVID-19 cases. RESA Comments at 3; TLP Comments at 2. NRG also notes that Pennsylvania businesses are operating without restriction and argues suppliers should not be subject to restrictions that the Commonwealth is not imposing on other business. NRG Comments at 1. Moreover, the parties raise concerns regarding the economic impact of the moratorium. Energy Harbor states that restrictions on in-person sales and the unavailability of the door-to-door channel have adversely affected their business. Energy Harbor Comments at 1, 5. NRG argues that rolling back restrictions will assist businesses in getting back to prior sales levels in order to help grow the economy. NRG Comments at 2; see also Energy Harbor Comments at 3.
We agree that a blanket prohibition on door-to-door sales and marketing activities is no longer justified. We note that suppliers are typically engaged in door-to-door sales and marketing activities in the summer months. Thus, any further extension of the moratorium would effectively eliminate door-to-door sales and marketing activities for suppliers during the remainder of 2021. We also agree that extending the moratorium on door-to-door sales and marketing activities risks further economic harm without providing a material benefit given the status of the COVID-19 pandemic.
In this regard, we note that, since the issuance of our Tentative Order on May 6, 2021, additional COVID-19 mitigation measures and restrictions have been lifted. For instance, on May 30, 2021, Governor Wolf allowed all business, events, and venues to return to 100 percent capacity.4 In addition, for the week of June 18 through June 24, the statewide positivity rate for COVID-19 was 1.2%.5 Further, on June 28, 2021, the Governor lifted the order requiring masks for unvaccinated and partially vaccinated individuals. These masking requirements were set to be lifted when 70 percent of Pennsylvanians age 18 or older were fully vaccinated, or on June 28, 2021, whichever came first.6 The masking requirements were ultimately lifted on June 28, 2021, at which time the percentage of fully vaccinated Pennsylvanians over the age of 18 was 59.8 percent.7 Therefore, in light of the further easing of COVID-19 mitigation measures and restrictions, and the potential for economic harm associated with maintaining the moratorium, we are further modifying our March 16, 2020 Emergency Order, as modified by the Orders entered June 4, 2020, December 3, 2020, and May 6, 2021, to lift the moratorium on door-to-door, public event, and in-person sales and marketing activities for all jurisdictional suppliers, subject to specified conditions.
We disagree with the OCA that door-to-door sales and marketing activities should be prohibited in any county where the adult vaccination rate is less than 70 percent. The line of 70 percent proposed by the OCA is fairly speculative, and the OCA provides no evidentiary support for the imposition of this new rule. Moreover, as of July 2, 2021, data from the Pennsylvania Department of Health indicates that 60.3 percent of Pennsylvanians age 18 or older were fully vaccinated. It is not known when, or if, the 70 percent vaccination threshold will be reached. Thus, the OCA's proposal could effectively prohibit door-to-door sales and marketing activities permanently for those counties below the threshold. Further, the Commission has previously looked to the circumstances surrounding the COVID-19 pandemic and the status of the statewide reopening plan in addressing petitions to modify or rescind portions of the March 16, 2020, Emergency Order. The Commission's actions here are consistent with the recent lifting of COVID-19 mitigation measures and restrictions.
We acknowledge, however, that the OCA raises important questions regarding the safety of resuming door-to-door sales and marketing activities. Due to these questions and similar questions raised by other parties, we are modifying the March 16, 2021, Emergency Order to lift the moratorium on door-to-door, public event, and in-person sales and marketing activities, while maintaining and modifying some existing conditions from our June 4, 2020, December 3, 2020, and May 6, 2021, Orders.
For utilities generally, the Commission has authority to ensure that every public utility furnishes and maintains adequate, efficient, safe, and reasonable service and facilities. 66 Pa.C.S. § 1501. When the natural gas utility and electric utility industries were restructured, the Commission was also given special authority to regulate the competitive marketplace for electric generation supplier services. 66 Pa.C.S. §§ 2201,et seq. and 2801, et seq. The General Assembly charged the Commission to ''establish regulations to require each electric distribution company, electricity supplier, marketer, aggregator and broker to provide adequate and accurate customer information to enable customers to make informed choices regarding the purchase of all electricity services offered by that provider.'' 66 Pa.C.S. § 2807(d)(2). The General Assembly established a similar requirement regarding NGDCs and NGSs. See 66 Pa.C.S. § 2206(c). Moreover, the Commission is required to ensure that information provided to customers is understandable and enables them to compare prices and services to make informed decisions. See 66 Pa.C.S. §§ 2206(c), 2807(d)(2). In addition, regarding NGSs, ''the commission may forbear from extending its regulation of [NGSs] beyond licensing, bonding, reliability and consumer services and protections. . .'' 66 Pa.C.S. § 2208(e). The Commission must further ''impose requirements necessary to ensure that the present quality of service provided by electric utilities does not deteriorate.'' 66 Pa.C.S. § 2809(e). In order to accomplish these responsibilities, the Commission ''may make such regulations. . .as may be necessary or proper in the exercise of its powers or for the performance of its duties.'' 66 Pa.C.S. § 501(b); Blue Pilot Energy, LLC v. Pa. Pub. Util. Comm'n, 241 A.3d 1254, 1267 (Pa. Cmwlth. 2020).
This authority not only permits the Commission to regulate the behavior of suppliers, but also permits the monitoring of suppliers' agents to ensure suppliers' responsibilities are upheld. Therefore, under this authority and consistent with Act 21, we determine it is necessary to modify the requirements on suppliers.
Importantly, some orders and directives of the Governor and Secretary of Health may persist or reemerge. Therefore, consistent with our prior Orders addressing the marketing moratorium, suppliers engaging in door-to-door, public event, and in-person sales and marketing activities must comply with all relevant orders and guidance of the Governor and the Secretary of Health. Suppliers must also continue to adhere to all applicable Commission regulations and orders. Below we set forth conditions specific to door-to-door sales and marketing activities. These conditions will remain in place until September 30, 2021, unless lifted earlier by the Commission.
Suppliers should report to the Commission their intent to resume door-to-door sales and marketing activities, including the general time period and geographic area in which the supplier will be active. Reports should be provided to OCMO as well as BCS at RA-OCMO@pa.gov and RA-PCDOORTODOOR@pa.gov before commencing such activities. Any reports containing confidential information should be made consistent with the Commission's March 20, 2020, Emergency Order, and the July 27, 2020, Secretarial Letter supplementing that Emergency Order. See Suspension of Regulatory and Statutory Deadlines; Modification to Filing and Service Requirements, Docket No. M-2020-3019262 (Emergency Order ratified March 26, 2020); Modification to Filing and Service Requirements Emergency Order, Docket No. M-2020-3019262 (Secretarial Letter issued July 27, 2020). While the Commission will require these reports for suppliers resuming door-to-door sales and marketing activities, we will lift the requirement for suppliers to report to the Commission regarding the resumption of other forms of in-person sales and marketing activities initially set forth in our June 4, 2020, December 3, 2020, and May 6, 2021, Orders modifying the March 16, 2020, Emergency Order. We also decline to require reports from suppliers resuming other forms of in-person sales and marketing activities, such as activities at indoor public events.
Additionally, with regard to reporting requirements, we note that the OCA makes a number of recommendations about the use of third parties to perform sales and marketing activities, including restrictions on the use of third parties for door-to-door activities and the required recording of all transactions. PPL similarly suggests increased oversight of third-party marketing services through the addition of a requirement that suppliers report vendors to the Commission and the local electric or natural gas distribution company. OCA Comments at 12, 14; PPL Comments at 5-6.
Generally, we agree with the OCA and PPL that, given the current heightened concerns with public health and safety, it is appropriate for the Commission to receive additional information from suppliers regarding their use of third-party vendors. Accordingly, we will modify the supplier reporting requirement to BCS, as part of their reporting under 52 Pa. Code § 111.14, to indicate if they will be using a third-party vendor to perform door-to-door sales and marketing activities through September 30, 2021. We will not, however, require them to identify who the vendor is. This modification will allow the Commission to more closely monitor door-to-door sales and marketing activities during the suppliers' relaunch of such activities after more than a year since they have conducted such activities.8 Additionally, we remind suppliers that the licensed entity is held responsible for the actions of all agents as set forth in 52 Pa. Code 111.3.9 As it has been over a year since suppliers and their vendors have conducted door-to-door sales activities, and there is likely to have been employee turnover in the interim, we also remind suppliers that they may not permit a person to conduct door-to-door sales and marketing activities until they have obtained the required criminal background checks. See 52 Pa. Code § 111.4.
Moreover, as it pertains to training for suppliers on the basics of the Commission's supplier marketing regulations at 52 Pa. Code, Chapter 111, we note that CleanSky, the OCA, and PPL generally support a training requirement, while RESA, NRG, and Energy Harbor do not object to making Commission training available. In particular, RESA, NRG, and Energy Harbor do not think that training should be required as a precondition of resuming door-to-door sales and marketing activities. These parties are especially concerned that such a requirement would delay the resumption of such sales and marketing activities and argue that suppliers are fully capable of training and overseeing their agents' compliance with the Commission's supplier marketing regulations.
While we agree that suppliers are primarily responsible for the training of their agents, we think that refresher training for suppliers from the Commission would be useful. As such, the Commission will make such training available remotely. We will schedule multiple sessions in the coming weeks as to accommodate as many suppliers as possible. While we expect all suppliers that engage in door-to-door sales and marketing activities to attend one of these sessions, we will not make the training a prerequisite for resuming door-to-door sales and marketing activities. We agree that suppliers should have the resources and expertise needed to keep their agents trained, and that making the Commission training a precondition is not necessary and could delay the resumption of such sales and marketing activities. Similarly, we generally agree with CleanSky's comment that all suppliers should resume door-to-door marketing with consideration for the new circumstances surrounding the COVID-19 pandemic. We do not believe, however, that it is necessary to first require suppliers to engage in a soft launch. We expect that suppliers will nonetheless carefully reinitiate door-to-door sales and marketing activities with enhanced monitoring and auditing in place to ensure that the supplier marketing regulations and the requirements of this Order are respected.
Further, although we will allow the resumption of door-to-door, public event, and in-person sales and marketing activities subject to the conditions herein, suppliers should continue to use remote means where possible. We encourage the use of other sales and marketing activities, including outbound telemarketing, inbound calls, website advertising and enrollment, media advertising, PaPowerSwitch, PaGasSwitch, and utility Customer Referral Programs.
Finally, we note that, in response to the Tentative Order, several parties discussed permanent changes to the Commission's supplier marketing regulations at 52 Pa. Code, Chapter 111 due to long-standing concerns regarding door-to-door sales and marketing activities. We believe that the upcoming review of Chapter 111 is a more appropriate forum to address these such concerns.10 The current proceeding is intended to address immediate concerns related to further modifying the Commission's March 16, 2020, Emergency Order and the lifting the moratorium on door-to-door sales and marketing activities in a manner that protects the public health and safety. The Commission can only impose permanent changes to Chapter 111 through a formal rulemaking proceeding.
Conclusion
Upon review and consideration of the comments received in response to the Commission's Tentative Order, we find that it is reasonable and appropriate to further modify the Commission's March 16, 2020, Emergency Order. With this Order, we lift the moratorium on in-person sales and marketing activities for all jurisdictional suppliers as it pertains to a door-to-door, public event, and in-person sales and marketing activities, and modify the reporting requirements set forth in our June 4, 2020, December 3, 2020, and May 6, 2021, Orders. This Order does not otherwise impact the March 16, 2020, Emergency Order, as amended by the Orders entered June 4, 2020, December 3, 2020, and May 6, 2021. Suppliers engaging in door-to-door, public event, and in-person sales and marketing activities must comply with the applicable conditions of this Order and all relevant orders and guidance of the Governor and Secretary of Health. Suppliers are also required to report their intent to resume door-to-door marketing activities to OCMO and BCS as set forth herein.
We urge all suppliers to take great care in monitoring and supervising their agents and vendors to ensure that their activities fully comply with the expectations outlined in this Order and all appliable Commission regulations, including the supplier marketing regulations at 52 Pa. Code, Chapter 111. Suppliers, their agents, and their vendors should keep public health and safety concerns paramount when conducting door-to-door sales and marketing activities. The Commission will closely monitor these sales and marketing activities through the reporting requirements described in this order as well as informal calls and complaints to OCMO and BCS. Suppliers are reminded that failure to comply with the Commissions orders and regulations will result in enforcement action, including possible suspension from door-to-door sales and marketing activities;
Therefore,
It Is Ordered:
1. That the Commission's March 16, 2020, Emergency Order establishing a moratorium on in-person sales and marketing activities for all jurisdictional electric generation suppliers and natural gas suppliers, and as modified by the Orders entered June 4, 2020, December 3, 2020, and May 6, 2021, is hereby further modified to lift the prohibition on door-to-door, public event, and in-person sales and marketing activities, as of the entry date of this Order, consistent with and subject to the conditions of this Order.
2. That all electric generation suppliers and natural gas suppliers under the Commission's jurisdiction engaging in door-to-door, public event, and in-person sales and marketing activities must comply with all relevant orders and guidance of the Governor and the Secretary of Health and continue to adhere to all applicable Commission regulations and orders.
3. That, until September 30, 2021, or unless lifted earlier by the Commission, all electric generation suppliers and natural gas suppliers under the Commission's jurisdiction are directed to report their intent to resume door-to-door sales and marketing activities with the general time period and geographic area in which the supplier will be active, before commencing such activities, to the Office of Competitive Market Oversight and the Bureau of Consumer Services at RA-OCMO@pa.gov and RA-PCDOORTODOOR@pa.gov. Any reports containing confidential information should be made consistent with the Commission's March 20, 2020, Emergency Order, and July 27, 2020, Secretarial Letter.
4. That, until September 30, 2021, or unless lifted earlier by the Commission, all electric generation suppliers and natural gas suppliers under the Commission's jurisdiction are directed to report when they use a third-party vendor to perform door-to-door sales and marketing activities as part of their report under 52 Pa. Code § 111.14 to the Bureau of Consumer Services. Any reports containing confidential information should be made consistent with the Commission's March 20, 2020, Emergency Order, and July 27, 2020, Secretarial Letter.
5. That, upon entry of this Order, the Office of Competitive Market Oversight and the Bureau of Consumer Services shall issue a Secretarial Letter pertaining to the scheduling of training sessions on the resumption of door-to-door sales and marketing activities to be offered to all electric general suppliers and natural gas suppliers under the Commission's jurisdiction.
6. That this Order be served on all jurisdictional electric generation suppliers, natural gas suppliers, electric distribution companies, natural gas distribution companies, the Commission's Bureau of Investigation and Enforcement, the Office of Consumer Advocate, and the Office of Small Business Advocate.
7. That the Office of Competitive Market Oversight shall electronically send a copy of this Order to all persons on the contact list for the Committee Handling Activities for Retail Growth in Electricity.
8. That a copy of this Order shall be posted on the Commission's website at the Office of Competitive Market Oversight webpage.
9. The contact persons for this matter are Daniel Mumford in the Office of Competitive Market Oversight, (717) 525-2084, dmumford@pa.gov; and Christian McDewell, (717) 787-7466, cmcdewell@pa.gov, and Hayley Dunn, (717) 214-9594, haydunn@pa.gov, in the Law Bureau.
ROSEMARY CHIAVETTA,
SecretaryORDER ADOPTED: July 15, 2021
ORDER ENTERED: July 15, 2021
[Pa.B. Doc. No. 21-1221. Filed for public inspection July 30, 2021, 9:00 a.m.] _______
1 Proclamation of Disaster Emergency, Commonwealth of Pennsylvania, Office of the Governor (March 6, 2020) available at https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf.
2 Amendment to Proclamation of Disaster Emergency, Commonwealth of Pennsylvania, Office of the Governor (May 20, 2021) available at https://www.pema.pa.gov/Governor-Proclamations/Documents/Proclamation-Amending-Disaster-Emergency-COVID19-052021.pdf.
3 The OCA filed Corrected Comments on June 23, 2021. We refer to this filing as ''OCA Comments.''
4 Wolf Administration: Pennsylvania Businesses, Events, Venues Return to 100% Capacity on Memorial Day; Masking Order Remains Until 70% of Adults Fully Vaccinated or June 28, Pennsylvania Pressroom (May 30, 2021) available at https://www.governor.pa.gov/newsroom/wolf-administration-pennsylvania-businesses-events-venues-return-to-100-capacity-on-memorial-day-masking-order-remains-until-70-of-adults-fully-vaccinated-or-june-28/.
5 Department of Health: Over 11.7 Million Vaccinations to Date, 62.9% of Entire Population Received First Dose, 60.3% of Pennsylvanians Ag 18 and Older Fully Vaccinated, PA Ranks 9th Among 50 States for First Does Vaccinations Pennsylvania Pressroom (July 2, 2021) available at https://www.media.pa.gov/pages/health-details.aspx?newsid=1514.
6 See supra, n. 4.
7 Department of Health: Over 11.6 Million Vaccinations to Date, 62.3% of Entire Population Received First Dose, 59.8% of Pennsylvanians Age 18 and Older Fully Vaccinated, PA Ranks 7th Among 50 States for First Does Vaccinations, Pennsylvania Press Room (June 28, 2021) available at https://www.media.pa.gov/Pages/Health-Details.aspx?newsid=1508.
8 This reporting requirement does not alter the Commission's long-standing position that we do not have direct jurisdiction over third-party, non-licensed entities that perform sales and marketing activities. See Electric Generation Suppliers, Docket No. M-2009-2082042 (Secretarial Letter issued December 10, 2009) available at https://www.puc.pa.gov/pcdocs/1708744.pdf.
9 Section 111.3 of the Commission's regulations provides:
(a) A supplier may use an agent to conduct marketing or sales activities in accordance with applicable Commission rules, regulations and orders.
(b) In accordance with § 54.43(f) (relating to standards of conduct and disclosure for licensees) for an EGS and § 62.114(e) (relating to standards of conduct and disclosure for licensees) for an NGS, a supplier is responsible for fraudulent, deceptive or other unlawful marketing acts performed by its agent.
(c) Consistent with due process, for violations committed by the supplier's agent, the Commission may:
(1) Suspend or revoke a supplier's license.
(2) Impose fines for fraudulent acts, violations of Commission regulations and orders.
52 Pa. Code § 111.3.10 On November 6, 2019, at Docket No. L-2020-2208332, the Commission issued a Secretarial Letter convening a working group to discuss, inter alia, a rulemaking to review and update the Chapter 111 supplier marketing regulations and invited information comments from stakeholders on the same.
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