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State Issues Revised Proposed Retail Supplier Marketing Rules (Telesales Question Addressed)
December 16,2015 The Delaware PSC will issue another revised proposal to adopt changes to electric supplier marketing and certification rules under Regulation Docket 49 A signed written order with the latest proposed changes was not immediately available. However, a proposed order adopted by the PSC containing the proposed changes provides that, regarding contract authorization, "The Contract must be either signed by the Customer or the Customer’s intention to enter into a business transaction with the Electric Supplier must be verifiable by some other means. Other means of authorization shall include an Electronic Signature or verifiable verbal authorization. An Electric Supplier that contracts with a Customer by means of the internet shall confirm the identity of the Person authorizing the Contract. An Electric Supplier may use a distinct username and password to confirm the identity of the contracting Customer." Elsewhere, the latest proposed rules state, "Verifiable authorization means a written signature, Electronic Signature or an audio recording of the Customer expressly authorizing a change in Electric Suppliers or the terms of Electric Supply Service." Notably, the adopted proposed order appears to drop certain language which EnergyChoiceMatters.com had noted could prohibit real-time telephonic enrollments by requiring that the customer first receive a written disclosure statement before enrolling An older version of the proposed rules had stated, "Verbal authorization provided over the telephone as a result of telemarketing or as a result of a Door-to-Door Sale must undergo a Verification Process ... The Verification Process shall ... Confirm that the Customer has been given a copy of the Disclosure Statement ..." (emphasis added). Such language, or similar language, does not appear to be included in the revised proposed rules, although we emphasize that this conclusion (and all conclusions in this story) is based on a quick read-through of a redlined proposed order Indeed, the adopted proposed order appears to drop the contemplated disclosure statement in its entirety, with the term no longer being defined The proposed rules do contain specific requirements for contracts, including the use of plain and clear language, and the disclosure of, "[a] complete list of any other charges, including, fixed monthly charges and minimum monthly charges," including termination fees The adopted proposed order does not appear to require that verbal authorization requires the use of third party verification. Also notable is that the adopted proposed order appears to drop any earlier proposed requirements regarding variable rate history disclosure Additionally, the revised proposal appears to drop a proposed requirement that electric suppliers must provide written notice five calendar days in advance to its Residential or Small Commercial Customer(s) of any price and/or terms of service changes. Instead, the adopted proposed order would propose that suppliers must provide two separate written notices of a price or terms of service change. Though at one point the proposed order specifies two notices, the same provision states that the supplier shall send such "notice" (singular) at least thirty (30) days and no more than sixty (60) days prior to the change taking effect. The adopted proposed order would provide that electric suppliers may not add a new charge for a new service, existing service, or service option without first obtaining consent from the customer. Customers shall have at least thirty (30) days to respond to the electric supplier’s changes to the rates, terms and conditions of service provided to and received by the customer. It was unclear how such proposed written notice requirements would be implemented with respect to month-to-month or variable rates The adopted proposed order appears to eliminate the rescission period, except for customers solicited through door-to-door marketing. The adopted proposed order proposes that suppliers engaged in door-to-door marketing may not misrepresent in any manner the customer's right to rescind without penalty or fee within seven (7) calendar days from the day the EDC sends the confirmation letter Existing language regarding a 10-day rescission period applicable to all marketing methods appears to have been deleted The latest proposal provides that a Door-to-Door Sale shall be conducted by an electric supplier’s representative, or agent of an electric supplier at a residential dwelling only between the hours of 9 a.m. to 8 p.m. EST. The latest proposal provides that an electric supplier may not permit a person or agent to conduct door-to-door sales and marketing activities until it has completed a criminal background investigation. Such criminal background investigation is proposed to include: • The electric supplier obtaining and reviewing a criminal history record from the Delaware State Police and from every other state in which the Person resided for the last twelve (12) months. For a current employee or agent who conducts sales and marketing activities, an electric supplier must obtain a criminal history record not later than ninety (90) days after the effective date of this regulation; and • The electric supplier checking the sex offender registry commonly referred to as the “Megan’s Law” registry maintained by the Delaware State Police. The adopted proposed order proposes that suppliers shall file updated marketing plans or sales methods with the PSC not fewer than five (5) Business Days before utilizing the plan and/or method in Delaware The adopted proposed order proposes that electric suppliers must notify the Commission Staff not fewer than five (5) Business Days before the start of a marketing campaign and submit to the Commission Staff and the DPA a copy of the marketing materials specific to its Delaware operations. A marketing campaign means the dissemination or distribution of informational and advertising materials regarding the Electric Supplier’s services and products to the public by print, broadcast, electronic media, in person, direct mail or by telecommunication.
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