The Massachusetts DPU should, "[c]reate and maintain a DPU database of local solicitation requirements that competitive suppliers must utilize to facilitate compliance with local permitting and licensing requirements," several NRG Energy, Inc. retail affiliates ("NRG") incredibly said in comments to the Massachusetts DPU about proposed door-to-door marketing rules

Click here for background on the proposed rules

"As the Department is likely well aware, many local cities and towns have adopted their own solicitation rules and suppliers must navigate this often complicated patchwork of requirements in order to gain approval to solicit customers in those communities. Importantly, these local rules often are not readily available (digitally or otherwise) and suppliers spend an inordinate amount of time trying to figure out what the requirements are for a given locality – often via numerous phone calls to local government Clerk’s offices and to the local police. The time required to research these local rules significantly delays planned marketing activity and delays the delivery of new product and service offers to customers," NRG said.

Isn't this the job of the NRG regulatory affairs team, not the DPU?

If the local rules, "often are not readily available (digitally or otherwise)," and suppliers spend, "an inordinate amount of time," trying to figure out what the requirements are for a given locality, won't taxpayer-funded DPU staffers face the same challenges, and be doing NRG's job of researching ordinances on the taxpayer's dime? [note: we use the tem taxpayer even if the DPU is funded by utility assessments, as those assessments eventually show up as taxes-by-another-name in rates]. Does the DPU staff have some sort of magic book that contains all this info already?

"We encourage the Department to consider developing and maintaining a database of all local solicitation permitting requirements that suppliers can access as they plan their door-to-door activities. Most suppliers want to comply with all of the local requirements and work very hard to ensure they are aware of those requirements and meet them. But finding out what the rules are is a daunting task. A centralized database maintained by the Department would eliminate confusion about the rules and ensure that suppliers have no excuses for not knowing the local rules. It would also speed delivery of new products and services to customers," NRG said

Does the fact that having a DPU-created database of local solicitation rules ensures that suppliers would have "no excuses" for not knowing the rules mean that, in the absence of such a government-run database, suppliers somehow do have an excuse?

Again, NRG cites the "daunting" challenge of researching the local rules. Who is it going to be more daunting for? A Fortune 200 company with 10,000 employees and $15 billion in annual revenue that says it wants to be the next disruptor? Or a small state agency with about 150 employees?

We thought what made this country great was innovation and entrepreneurial spirit. When someone sees a problem, or a need not being fulfilled, they roll up their sleeves to take advantage of the opportunity, creating a service or product not previously available. They don't run to the government to do their work for them

NRG's request is patently unworkable in any event. So what if the DPU creates this database? Is a Fortune 200 company with its name-brand on the line really going to rely on the work of a government clock-puncher to do its legal due diligence in determining how it must comply in each town? We'd hope not.

If we were running the company, we'd be sending our employees to verify everything in the desired DPU database to ensure all our legal bases are covered, making the database superfluous.

Is the database intended to be a "safe harbor" or absolute defense against DPU sanction for actions later determined to be in violation of a local ordinance, either because the database was wrong, or was outdated? How often will the database be updated? Local ordinances are not static, and we wouldn't be surprised that as more door-to-door energy marketing occurs in towns without ordinances, such towns may soon act to put in place solicitation requirements or prohibitions

If we were a competitor, we'd vehemently oppose NRG's suggestion, and immediately start on building a better mousetrap since NRG feigns it can't cost-effectively investigate local ordinances as needed to enter the market.

Apart from transferring costs from retail suppliers to taxpayers, NRG's plea (incorrectly) screams that the retail energy industry is not ready for prime time, and that customers should not be exposed to operations running out of someone's basement on a shoestring budget (which is how the operation comes across if it can't handle its own local regulatory compliance research). To be fair, as business owners we understand the burdensome, confusing and conflicting requirements put on businesses left and right by local, state, and federal governments, and too much of our time is spent not on complying with directives, but with simply finding out what those obligations are. 

However, we suspect consumer advocates aren't going to be as sympathetic. The logical response to NRG is, if it can't manage to track down local ordinances for some 350 Massachusetts towns, how it going to effectively manage hundreds, if not thousands, of sales agent feet on the street across multiple vendors

NRG Comments to DPU
 

--- By Paul Ring