As the winter weather hits with full force in the Northeast and Mid-Atlantic states, we thought it would be helpful to give a brief overview of developments before the Pennsylvania Public Utility Commission (“PUC” or the “Commission”) since the polar vortex of 2014. While other Northeast states also took enforcement actions against retail energy supply companies in the wake of that event, Pennsylvania’s enforcement initiative against a number of those companies highlights many of the issues and trends that will affect the retail energy supply industry in other states.1 What follows are insights gleaned from Drinker Biddle’s experience in litigation and regulatory proceedings growing out of the extraordinary escalation in wholesale and retail energy prices during the winter of 2014.
Regulatory Enforcement Actions against Retail Energy Suppliers
In the wake of a massive outpouring of complaints from consumers and pressure from state legislators, the Office of Attorney General (“OAG”) and Office of Consumer Advocate (“OCA”) (collectively, “Joint Complainants”) brought enforcement proceedings against five retail energy suppliers in the summer of 2014.2 These actions largely focused on variable rate electric and gas suppliers, whose escalating rates in some cases had led to increases of 300 percent or more in monthly residential energy bills. The enforcement actions were filed before the PUC and asserted a welter of regulatory violations relating both to the marketing and disclosure of the variable rate offerings, including claims of misleading and deceptive marketing, failure to bill in accordance with marketed prices, failure to state the factors that would determine the variable rate and how high the rate could go, and lack of good faith handling of customer complaints. The complaints also asserted claims that customers had been “slammed” as well as alleged violations of the PUC’s consumer fraud and telemarketing regulations.3 In an effort to assert authority over the prices set by the retail supply industry, the regulators alleged that the variable rates charged by these companies were not based on the cost of service to residential customers, supporting that claim with an affidavit from a purported expert. For relief, the complainants all sought refunds for the alleged overcharges; injunctive relief and civil penalties for violations of PUC regulations relating to pricing, disclosure and marketing; and in some cases, revocation of the supplier license. The PUC’s enforcement arm, the Bureau of Investigation and Enforcement (“I&E”), intervened in each of the actions and in two instances brought separate actions for regulatory violations, seeking the same relief.4
1. Settled Cases Involved Substantial Refunds and Comprehensive Changes to Marketing
With one exception—the complaint against Blue Pilot Energy, LLC (“BPE”)—the joint complaints brought by OAG and OCA were all eventually settled between December 2015 and August 2016. The settlements followed a similar template, with each of the settlements containing provisions for:
a. an agreed-upon amount of refunds to variable rate customers (which, depending on the size of the affected customer base of each retail supplier, ranged from $2 million up to nearly $7 million);5
b. contributions ranging from $25,000 to $75,000 to hardship funds (which provided assistance to low income customers in each local utility territory);
c. underwriting the costs of a third-party settlement administrator up to a certain dollar limit (which varied from $25,000 to $100,000);
d. committing to a set of detailed requirements intended to improve customer service practices, training, and monitoring of company employees and any third-party marketing representatives;
e. re-writing marketing and contract documents to include (i) disclosure of anticipated costs based on historic kWh prices, (ii) required language explaining what a variable rate means, and (iii) a more easy-to-read description of the key contract terms;
f. forbidding representations that the offering is “risk free,” “competitive,” “guaranteed,” or any other terminology suggesting that the customer would save money (except in reference to an explicit, affirmative guaranteed savings program), and setting out a “script” to be used in any telephone or door-to-door marketing;
g. a forced “time-out” from any sale or marketing of variable rate products in Pennsylvania for periods ranging from 15 months to two years; and
h. a stipulated civil penalty ranging from $25,000 to $125,000.
Each of those settlements was approved initially by the Administrative Law Judges (“ALJs”) and later by the Commission.6
Case Proceedings and Resulting Penalties
Before the cases ultimately settled, many of them had proceeded through the evidentiary hearing stage. The regulators sought to prove their cases by introducing written testimony from scores of customers, generally in response to a standard questionnaire that had been mailed. The written testimony was disclosed to the retail suppliers which then were allowed to file objections and to cross-examine the customers by phone at an evidentiary hearing. The ALJs admitted most of the consumer testimony into the record. Several of the cases were settled after the production of written direct expert testimony. The Joint Complainants relied on several experts in each case: Barbara R. Alexander, a consultant and former Maine utility regulator, testified on issues of disclosure and customer confusion; Steven L. Estomin of Exeter Associates, an economist and consultant who frequently testifies on behalf of public utility regulators, testified that the variable rates were far in excess of the reasonable cost on the wholesale market;7 and regulatory officials who testified to the nature and volume of consumer complaints made to the agencies. The matters each settled before any rulings on the admissibility of the expert testimony, and the direct testimony was not disclosed on the Commission’s public record.
2. Litigated Cases Resulted in the Highest Civil Penalties Imposed by the PUC
Two cases were resolved through trials. One involved a civil penalty action brought by I&E against HIKO Energy, LLC (“HIKO”) that sought $14,780,000 for violations of 52 Pa. Code § 54.4(a), alleging that the company failed to bill Pennsylvania customers at the “1% - 7% below the Price to Compare” rate promised in HIKO’s disclosure statement.8 The I&E sought a civil penalty of $1,000 for each of 14,780 customer invoices. The ALJs’ initial decision recommended a significantly lower penalty of $1,836,125, which was computed using the total number of “overcharge” invoices9 multiplied by $125, the average amount of each overcharge. The penalty was later adopted by the Commission but it has been appealed to Pennsylvania's Commonwealth Court on grounds of excessiveness and abuse of agency discretion.10 The second trial involved the OAG and OCA’s joint complaint brought against BPE, which alleged violations of Section 54.4(a) as well as a number of other violations, including slamming and deceptive marketing. The ALJs issued an initial decision recommending a penalty of $2,554,000.11 As of the date of this article, the Commission has not yet approved that decision. Significantly, both HIKO and BPE were required to make significant refund payments to customers who had been overcharged.
The PUC had not previously sought to impose penalties of this magnitude on any regulated entity, and there were no precedents from any litigated cases. The penalties assessed in the HIKO and BPE cases far exceeded any prior penalties levied against retail energy suppliers in any settled matters, and were significantly more than the penalties the PUC has approved in settlements with large utility companies for violations of gas pipeline safety regulations that resulted in deaths, serious injuries and property damage. Although trials will continue to be rare, these recent penalty decisions will likely increase the penalties the Commission will be able to extract in settlements that affect substantial numbers of customers, even where full refunds have been made.12
Recent Enforcement Actions against Retail Energy Suppliers Show Some Limits on PUC Authority and the Need for New Regulations
As a result of these lawsuits, the PUC’s power was further clarified in several important areas:
1. The PUC Lacks Jurisdiction to Hear Claims under Pennsylvania’s Consumer Fraud and Telemarketing Statutes
The Commission confirmed that it had no jurisdiction to enforce Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) and Telemarketer Registration Act (“TRA”), but could only enforce those requirements to the extent they were embedded as standards in PUC’s own regulations.13 Thus, the attorney fee, compensatory damages and punitive damages provisions of the UTPCPL could not be recovered in a PUC proceeding. However, to the extent its regulations incorporated other applicable state law requirements, the specific requirements of the UTPCPL could be enforced by the Commission against regulated entities, including presumably some or all of the 21 separate practices that are deemed under the UTPCPL “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”14
2. The PUC Lacks Jurisdiction to Order Restitution, But May Direct Refunds
The Commission agreed that it lacked equitable power to order restitution or disgorgement. However, this may be a distinction without much of a difference because the PUC acknowledged its power to direct a refund for overcharged invoices under its broad powers to protect consumers in a competitive electricity generation supply marketplace.15
3. The PUC Lacks Jurisdiction to Hear Class Actions
The Commission also confirmed that a class action proceeding could not be brought in the PUC.16 Given the Commission’s lack of jurisdiction to enforce consumer fraud statutes or to award consequential or punitive damages and attorneys’ fees, retail energy suppliers will continue to face the prospect of simultaneous “shadow” consumer class actions, raising the potential that companies may end up paying twice to settle the same violations. Among other things, the persistence of these shadow class action lawsuits means that it will be important to negotiate carefully the language of any release in a regulatory settlement agreement and try to develop arguments that some or all of the class action claims have already been determined in the regulatory proceedings.
4. The PUC Lacks Jurisdiction to Regulate Retail Energy Supply Prices
The Commission reiterated that, because prices for retail energy supply were intended to be set by competition, it had no authority to regulate prices charged by retail energy suppliers.17 Thus, unless the legislature amended the retail energy competition statute, the regulators could not limit the factors that went into setting a variable price or set limits on pricing. The PUC rejected the regulators’ claims based on the theory that the variable prices charged were far in excess of the reasonable cost of supply based on the wholesale spot market at the time. Nevertheless, the Commission upheld its authority to police retail energy practices to ensure that disclosures matched actual customer billing, to prohibit deceptive or misleading marketing and sales practices, and generally to uphold the integrity of the competitive marketplace.18
5. The PUC Acknowledged Unprecedented Nature of the Polar Vortex and Need for Regulatory Changes
The proceedings highlighted some gaps in the regulations regarding variable rate products, which were revealed during the polar vortex and the accompanying “unprecedented price spikes in the wholesale electricity market.”19 As the Commission itself recognized, “those events were unforeseeable.”20 Although the legislature has encouraged retail energy competition, including through variable rates, the regulators are generally hostile to variable rate products, skeptical about their benefits, and douabthful the average consumer understands these products. As a result, the regulators are committed to simplifying the disclosures and highlighting the potential risks of variable rate products.21 In the settlements described above, the regulators have prescribed detailed practices for any future marketing, whether by phone or door-to-door. These are likely to be standard-setting for the retail energy supply industry and will eventually find their way into regulations in other states. Many of these requirements are also evident in recent regulatory changes, which we highlight below.
Regulatory Changes Since the Polar Vortex of 2014
The PUC has acknowledged that the polar vortex of 2014 revealed the need to improve the functioning of retail energy markets during periods of extreme stress. It has taken a number of actions that will affect the way retail suppliers operate, including providing specific language to be used in any marketing of variable rate products, requiring advance notice of any rate changes, and limiting the manner in which companies can pass along wholesale electricity price increases to their customers. For example, the Commission noted that its regulation requiring disclosure of “conditions on variability” and “limits on price variability” was subject to “potential misinterpretation” and that “more specific direction should be provided to EGSs regarding the level of detail the Commission expects regarding the variability in retail generating supply pricing.”22 The new regulation, effective on June 14, 2014, provides a comprehensive list of mandatory disclosures. For variable rate products with no ceiling, “the [disclosure statement] must clearly and conspicuously state that there is not a limit on how much the price may change from one billing cycle to the next.”23
Another significant regulatory change mandates written notice to the customer whenever a retail supplier intends to change the terms of a residential or small business customer’s contract. Retail supply companies must now provide two notices, the first (“Initial Notice,” which may be electronic, if the customer has so elected) to issue 45-60 days before the expiration or change in terms of the contract, and the second (“Options Notice,” which must be mailed) to issue no less than 30 days before expiration or change in terms of the contract and would set forth the customer’s options.24 Thus, if the customer goes from a fixed rate to a variable rate contract or vice-versa, or if the company chooses to change the terms of a customer’s variable product by inserting a “rate cap” or by adding time periods during which a “guaranteed rate” would be available to the customer, the timing and cost of these notices must be considered. Customers who fail to respond to the notices can be converted to another fixed-term contract or a month-to-month contract provided that, in either case, the customer was not subject to cancellation fees. For customers who would be changing over from fixed-rate contracts to variable rate contracts, the Options Notice must give the rate that will be charged for the first billing cycle.25
Another new regulation requires the retail supply company to provide a variable rate customer, upon request, with the last 12 months’ average monthly billed prices in the customer’s service territory (or if the EGS has not been providing service for 12 months, the same information for the months available to date).26 The Commission rejected the Consumer Advocate’s suggestion for prior notice of any variable rate increase of more than 50 percent over the prior billing cycle.27
Recognizing that consumers often did not understand or were confused by the written marketing materials, the PUC also now requires retail suppliers to give consumers a “contract summary” highlighting the most important terms of the disclosure statement in a one-page, easy-to-read document.28 The Commission has developed a template summary in the format used by the credit card industry (the so-called “Schumer Box,” named after Senator Charles Schumer of New York).29 The PUC expects that each retail supplier would have a somewhat different contract summary and disclosure statement, which conformed to their particular product offerings. For companies that did not offer any guarantees about price or savings, the Commission required a plain language statement that no savings were guaranteed.
Retail energy supply companies will need to continue to monitor their compliance with all of the specific regulatory requirements in each state in which they are licensed. The myriad detailed and often inconsistent state regulations mean that supply companies will continue to need lawyers, consultants and marketing firms who are familiar with each state law scheme. Companies that seek uniformity in their operating procedures will likely follow the regulatory mandates of the states with the largest markets, which are likely to have more rigorous requirements. Over time, these will end up being the default standards for the industry.
One of the major lessons from the polar vortex of 2014 is that variable rate suppliers cannot expect to pass along to their customers any wholesale energy cost increases without attracting scrutiny from the regulators. The New York PSC’s attempt to fundamentally restructure the retail energy market was perhaps the most extreme response to the consumer complaints and marketing abuses flowing from that event. Companies can reduce the potential for a regulatory backlash and better prepare to defend themselves in the event of regulatory scrutiny by doing the following:
- Enhance written disclosures. Disclose in clear and conspicuous language that the price can vary each month and that the past price history is no guarantee of future savings. Make sure to sync the disclosures and marketing materials and review them to make sure they are in “plain English” and not likely to be misunderstood or misread by the consumer. Include specific language in the disclosure statement and marketing materials advising that the price depends on a number of individual, discrete factors, including the cost of purchased energy, seasonal supply and market constraints, regulatory restrictions, power plant or pipeline disruptions or unavailability, and internal operating costs and margins. Include as broad a definition of force majeure as possible, adding in some of these uncontrollable factors. It is certainly possible that a more conspicuous warning will scare some customers away. On the other hand, such a disclosure will provide additional protection from both regulators and a potential defense in any class action lawsuits that may be brought in the wake of a large price spike.
- Increase customer communications. Make it a goal to communicate with customers in advance of any large price increase, at least by posting a notice to the company webpage and contact customers by telephone. Whenever possible obtain the customer’s consent to receive email notice of such events by email or text message.30 Also encourage them to visit the company’s webpage regularly to keep up with likely price variations. Unfortunately, a sizable share of the customer base will continue to need mail communications. While it is good policy to be transparent whenever possible, clear and frequent communications are no guarantee that consumers will read or understand them.
- Improve customer service functions. Develop customer service contingency plans. These might include providing additional phone lines and increased voicemail capacity, additional training for responding to customer complaints and a temporary expansion of customer service personnel. Develop a uniform script for all customer service personnel. If helpful, consider including a historical “track record” of rates versus the local utility’s rates and quantifying the cost benefits of the variable price in prior months. Encourage customer service personnel to “solve” complaints rather than just hear and record them. Apart from creating customer good will, regulators will likely be more flexible if they are convinced a company is handling its customers’ complaints in good faith.
- Increase vigilance over marketing. Remind your marketing representatives to be careful about “over promising” and departing from the prepared scripts. It may be helpful to suspend marketing temporarily in times of extreme market volatility. Increase monitoring to guard against the possibility of “slamming” and representations inconsistent with the disclosure statement. A customer who receives a very high energy bill will be more likely to think he or she has been lied to or defrauded into agreeing to a variable rate. If those kinds of complaints are made in significant numbers, regulators will respond aggressively. A company that has implemented heightened monitoring of its sales and marketing functions will be able to argue that it has “zero tolerance” for such conduct.
- Develop a positive story. Once regulators have focused on your company, it will be critical to develop a favorable narrative. The aim is to convince the regulators that any infractions are not the result of deliberate intent. Implementing all of the above recommendations will obviously be a good start. If the company has taken any actions to protect its customers from unexpected price increases—through hedging with long-term purchase contracts, for example—make sure the regulators know about them. Also, to blunt the regulator’s likely suspicion about variable rates, emphasize any savings the company has provided to its customers in the past, whether through comparison to the local utility rates, discount programs, or rebates the company offers to its customers. Highlight any refunds the company has already made to its customers, or other efforts to help mitigate a price spike, particularly to those customers who may be elderly or with limited income (deferred payment plans, budget billing, etc.). The regulators will generally be more inclined to lenient treatment of a company that has only been in business for a few years, is small relative to its competitors, and has no prior history of violations. Try to find out whether other retail energy suppliers charged higher rates during the same time period; if so, you can argue they may be more deserving of regulatory attention. Due to resource constraints, regulators will continue to seek to settle complaints rather than take them to trial. A reasonable settlement is all the more likely when the facts do not lead the regulators to view the violator as a conscious evildoer.
1 In Pennsylvania retail energy suppliers are known as electric generation suppliers (“EGSs”) or “natural gas suppliers” (“NGSs”).
2 See Commonwealth of Pa. et al. v. Blue Pilot Energy, LLC, Docket No. C-2014-2427655 (Pa. PUC) (complaint filed on June 20, 2014 by the Attorney General’s Bureau of Consumer Protection and the Office of Consumer Advocate); Commonwealth of Pa. et al. v. Energy Servs. Providers, Inc. d/b/a Pa. Gas & Elec., Docket No. C-2014-2427656 (Pa. PUC) (same); Commonwealth of Pa. et al. v. HIKO Energy, LLC, Docket No. C-2014-2427652 (Pa. PUC) (same); Commonwealth of Pa. et al. v. IDT Energy, Inc., Docket No. C-2014-2427657 (Pa. PUC) (same); and Commonwealth of Pa. et al. v. Respond Power, LLC, Docket No. C-2014-2427659 (Pa. PUC) (same).
3 In decisions on preliminary motions, the PUC clarified that it does not have authority and jurisdiction to determine whether an EGS has committed violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law or the Telemarketer Registration Act. However, to the extent the Public Utility Code incorporated certain of those statutory standards into its provisions, the Commission could enforce them. See Blue Pilot Action, Docket No. C-2014-2427655 (Order dated December 11, 2014) at 16-18.
4 See Pa. Pub. Util. Comm’n, Bureau of Investigation & Enf ’t v. HIKO Energy, LLC, Docket No. C-2014-2431410 (complaint filed on July 11, 2014); Pa. Pub. Util. Comm’n, Bureau of Investigation & Enf ’t v. Respond Power, LLC, Docket No. C-2014-2438640 (complaint filed on August 21, 2014).
5 All of the retail suppliers had made at least partial refunds to some of their customers before the settlements.
6 See IDT Action, Docket No. C-2014-2427657 (approving settlement for $6,577,000 in refunds, up to $75,000 in settlement administration costs, a $25,000 civil penalty, and a $25,000 contribution to hardship funds); HIKO Action, Docket No. C-2014-2427652 (approving settlement for $2,025,383.85 in refunds, up to $50,000 in settlement administration costs, no civil penalty, and a $25,000 contribution to hardship fund); PaG&E Action, Docket No. C-2014-2427656 (approving settlement for $6,863,563 in refunds, up to $100,000 in settlement administration costs, a $25,000 civil penalty, and $100,000 contribution to hardship funds); Respond Power Action Docket Nos. C-2014-2427659 & C-2014-2438640 (consolidating separate actions brought by Joint Complainants and I&E, the PUC approved a settlement for $4,112,224.90 in refunds, up to $55,000 in settlement administration costs, a $125,000 civil penalty, and a $50,000 contribution to hardship funds).
7 A copy of Steven L. Estomin’s initial report was attached to each of the complaints filed in the actions listed at supra note 2. Excerpts from the direct testimony of Mr. Estomin and Ms. Alexander are contained in the ALJs’ initial decision in the BPE Action. See BPE Action, Docket No. C-2014-2427655 (Initial Decision dated July 7, 2016).
8 Section 54.4(a) of the Public Utility Code provides, “EGS prices billed must reflect the marketed prices and the agreed upon prices in the disclosure statement.” 52 Pa. Code § 54.4(a).
9 In response to testimony of HIKO’s expert addressing accounts with zero usage, I&E removed 68 alleged violations from its original averment and revised that amount downward to 14,689 violations. This civil pnealty computation was later affirmed by the Commission. See id. (Final Order and Opinion dated December 3, 2015) at 22-33.
10 See HIKO Energy, LLC v. Pa. Pub. Util. Comm’n, Case No. 5 CD 2016 (Pa. Commw. Ct.).
11 The Initial Decision in the BPE Action can be found here: http://www.puc.pa.gov/pcdocs/1458822.pdf.
12 The Commission has upheld civil penalties as high as $150,000 in settlements of slamming cases that have affected or had the potential to affect hundreds of consumers. See Pa. Pub. Util. Comm’n, Bureau of Investigation & Enf 't v. Energy Serv. Providers, Inc. d/b/a Pa. Gas & Elec., Docket No. M-2013-2325122 (Order entered June 5, 2014) (approving a $150, 200 civil penalty for slamming allegations involving 319 customer accounts, characterized as among the “most egregious” conduct ever investigated by I&E); Pa. Pub. Util. Comm’n, Bureau of Investigation and Enf’t v. Pub. Power, LLC, Docket No. M-2012-2257858 (Order entered Dec. 19, 2013) (approving a civil penalty of $64,450 for a “matter involv[ing] fraudulent, deceptive acts involving a third party vendor representing Public Power” which resulted in “the initiation of the process of switching the EGS on 2,937 customer accounts without proper authorization”).
13 See BPE Action, Docket No. C-2014-2427655 (Order entered December 11, 2014) at 16-18 (reasoning that the Public Utility Code neither expressly nor implicitly gives the PUC subject matter jurisdiction to determine violations of the UTPCPL or the TRA). See also supra note 3.
14 See 73 P.S. §§ 201-2(4)(i)-(xxi).
15 See IDT Action, Docket No. C-2014-2427657 (Order entered December 18, 2014) at 16-18 (noting that “[t]he ability to order an EGS to provide a refund to a customer that has been over charged in violation of its Disclosure Statement that has been required pursuant to the Code and/or the Commission’s Regulations furthers this policy objective by ensuring that customers receive accurate bills and hence, receive service under reasonable terms and conditions.”). But cf. id. at 24-26 (“Although the Commission has approved settlements wherein a respondent has agreed to pay restitution, the Commission lacks authority to impose such a remedy on an unwilling party.”).
16 IDT Action, Docket C-2014-2427657 (Order Granting Petition to Intervene dated May 1, 2015) at 5 (“Nothing in Section 701 or any other section of the Public Utility Code, however, allows for the filing of class action complaints. In the absence of statutory authority, the Commission cannot entertain class action complaints.”).
17 See supra note 13 at p. 15-19 (“[T]he Commission does not have traditional ratemaking authority over competitive suppliers and does not regulate competitive supply rates.”). In New York, the courts have so far drawn the opposite conclusion, holding that “the [Public Service Commission] has jurisdiction over rates charged by retail energy companies.” Nat’l Energy Marketers Ass’n v. N.Y. State Pub. Serv. Comm’n, Index No. 868-16 (3d Dep’t, July 22, 2016).
18 For example, in the BPE Action, the ALJs reviewed the company’s disclosure statement to determine whether its terms clearly revealed material pricing terms and financial risks to consumers. See BPE Action, Docket No. C-2014-2427655 (Initial Decision dated July 7, 2016) at 59-60 (The ALJs noted that reference in disclosure statement to “PJM wholesale market conditions” was insufficient and did not reflect all of the factors that went into setting the variable rate. The Initial Decision in the BPE Action is available at http://www.puc.pa.gov/pcdocs/1458822.pdf.
19 Final Omitted Rulemaking Order to Amend the Provisions of 52 Pa. Code Section 54.5 Regulations Regarding Disclosure Statement for Residential and Small Business Customers and to Add Section 54.10 Regulations Regarding the Provision of Notices of Contract Expiration or Changes in Terms for Residential and Small Business Customers, Docket No. L-2014-2409385 (Order entered April 3, 2014) (hereinafter April 3, 2014 Final Omitted Order) at p. 7.
20 Id. at 22. See also MacLuckie v. Palmco Energy, PA, LLC, Docket No. C-2014-2402558 (Opinion and Order entered December 4, 2014) at 21 (noting that “no one could have predicted the extreme cold wrought by last year’s winter”).
21 For these reasons, the New York Public Service Commission (“PSC”) has attempted to restructure the retail energy industry by requiring retail suppliers to offer contracts that guarantee that the consumer will pay no more than the local utility for supply or, alternatively, provide at least 30 percent renewable electricity to the consumer. See Order Resetting Retail Energy Markets and Establishing Further Process. The PSC’s order has been struck down by a trial court on the grounds that PSC did not provide procedural due process and that its order was arbitrary and capricious. See supra note 16, Nat’l Energy Marketers Ass’n v. N. Y. State Pub. Serv. Comm’n.
22 See April 3, 2014 Final Omitted Order at 11, 12, 25.
23 Id. at 13. See also 52 Pa. Code § 54.5(c)(2)(ii)(B).
24 See April 3, 2014 Final Omitted Order at 28-30; see also 52 Pa. Code § 54.10.
25 52 Pa. Code § 54.10(2)(ii)(A)(I).
26 See April 3, 2014 Final Omitted Order at 16-20; see also 52 Pc. Code § 54.5(c)(14).
27 See April 3, 2014 Final Omitted Order at 20-21. (“While we agree with those parties that stated that EGSs should provide some indication of when customers will realize a price change...we believe this information is best included in the EGS Contract Summary provided to customers...The inclusion of this information on the EGS Contract Summary allows the Commission flexibility in amending the template to be more or less specific in its direction regarding the inclusion of such information.”)
28 Id. at 25-27; see also 52 Pa. Code § 54.5(i).
29 See April 3, 2014 Final Omitted Order at 51 (Attachment A).
30 Express consent to text communications to a customer’s mobile number must be obtained to avoid the risk of severe penalties under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. For a fuller discussion of TCPA issues, see Drinker Biddle & Reath’s TCPA blog at http://tcpablog.com.