26 Del. Admin. Code § 3013-15.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 3013-15.0 - Consumer Protection

15.1 Enforcement. In addition to the penalties described in subsection 14.5 of this regulation, any violation of the consumer protection rules set forth in this subsection shall be deemed an unlawful practice in violation of 6 Del.C. § 2513 and may be investigated and prosecuted by the Consumer Protection Unit, in accordance with 6 Del.C. §§ 1203C, 2513(b)(3), and 29 Del.C. § 2520(b). No action or inaction by the Commission under this regulation shall affect the right of the Consumer Protection Unit to enforce State consumer protection laws.

15.2 General consumer protections

15.2.1 The community energy facility is responsible for any discriminatory, false, fraudulent, deceptive or unlawful marketing, sales, billing, or collections acts performed by its agents, including lead generation firms, in the conduct of marketing, sales, billing, or collections activities on behalf of the community energy facility.

15.2.2 No community energy facility shall:

15.2.2.1 Engage in illegal, fraudulent, false, misleading, or deceptive conduct or make false, misleading, or deceptive statements or representations in any dealings with subscribers or prospective subscribers;

15.2.2.2 Discriminate against any subscriber or prospective subscriber, based wholly or partly, on race, color, creed, national origin, or gender of an applicant for service or for any arbitrary, capricious, or unfairly discriminatory reason;

15.2.2.3 Refuse to provide service to a subscriber except by the application of standards that are reasonably related to the community energy facility's economic and business purposes; or

15.2.2.4 Engage in slamming or cramming. If it is reported that the community energy facility has engaged in slamming or cramming, or both, the community energy facility may be subject to investigation and, after a hearing, the Commission may impose penalties or require the community energy facility to void or refund all of the charges in question.

15.2.3 Customer information. The community energy facility shall put into place safeguards to prevent the disclosure of subscribers' customer information and shall provide subscribers with a copy of its customer information privacy policy. A community energy facility shall keep the subscriber's customer information in a secure and protected location and shall treat information received from prospective subscribers, including those who do not subscribe, in accordance with this subsection. The community energy facility shall not disclose customer information except:

15.2.3.1 Upon authorization by the subscriber;

15.2.3.2 To a state or federal authority;

15.2.3.3 To Delmarva; or

15.2.3.4 As otherwise authorized by law.

15.3 Consumer protection relating to enrollment, marketing, and advertising

15.3.1 A community energy facility shall comply with all federal, state and local laws applicable to the advertising or marketing of its services, and it shall be a violation of this regulation to fail to comply with such laws.

15.3.2 No community energy facility shall make misrepresentations or use deceptive practices relating to its own services, the services of another community energy facility, or the services provided by Delmarva in its solicitations, advertising, or marketing materials. These materials include radio or television advertisements, mail, e-mail, website claims, social media, telephone, and person-to person contacts, including door-to-door sales. Deceptive practices include:

15.3.2.1 Saying or suggesting to a prospective subscriber that they are required to choose a community energy facility;

15.3.2.2 Saying or suggesting to a prospective subscriber that their service will suffer degradation or risk if they do not choose a community energy facility; and

15.3.2.3 Suggesting a relationship that does not exist with the subscriber's SOSS, Delmarva, any government agency, or another community energy facility.

15.3.3 Telephone Solicitations and Enrollments:

15.3.3.1 A community energy facility soliciting subscribers by telephone shall comply with all applicable Delaware and federal laws, including the Telephone Consumer Protection Act of 1991 (15 U.S.C. §§ 6151 et seq.), the Telemarketing Consumer Fraud and Abuse Prevention Act of 1994 (15 U.S.C. §§ 6101 et seq.), and the Delaware Telemarketing Fraud Act (6 Del. C. §§ 2501A et seq.).

15.3.3.2 When a residential or small commercial subscriber enrolls with a community energy facility during a telemarketing call, the community energy facility shall record the entire telephone call between the subscriber and the community energy facility or its agent.

15.3.3.3 The community energy facility shall maintain a copy of the recorded sales call and TPV, if applicable, for a period of 5 years after the expiration of the residential or small commercial subscriber's contract.

15.3.3.3.1 TPV means a a third party verification used as method to record consent from a residential or small commercial customer agreeing to each of the material listed in this regulation and contract terms that is recorded by an independent person not party to the agreement or that may be performed by an automated, computerized system. To be valid, the TPV must occur without the presence of the sales agent, and at the outset must describe how the residential or small commercial customer can cancel the TPV and the enrollment at any time prior to completion without penalty. The consent from the residential or small commercial customer must be given without unreasonable assistance from the individual conducting the TPV and must include an acknowledgement from the residential or small commercial customer:

15.3.3.3.1.1 That the customer is voluntarily choosing to enroll with a community energy facility;

15.3.3.3.1.2 Of the type of product offered (introductory, variable, fixed, or some combination);

15.3.3.3.1.3 Of the price that will be charged for the first month's service and when or if the price may change;

15.3.3.3.1.4 Of the duration of the contract;

15.3.3.3.1.5 Of the amount of an early termination fee (if applicable);

15.3.3.3.1.6 If a residential customer, that the customer is the account holder or authorized to make the switch;

15.3.3.3.1.7 If a small commercial customer, that the customer is authorized to make the switch;

15.3.3.3.1.8 That the residential or small commercial customer has been provided with information on how the contract can be renewed and, if applicable, what the community energy facility can do if the customer fails to respond to the renewal notice;

15.3.3.3.1.9 That the residential or small commercial customer has been provided information on how to access the community energy facility's historical pricing information;

15.3.3.3.1.10 That the residential or small commercial customer has been provided information on how to access future pricing information; and

15.3.3.3.1.11 That the residential or small commercial customer has received the community energy facility's customer support contact information.

15.3.3.4 The community energy facility shall immediately halt any telemarketing call upon the request of the prospective residential or small commercial subscriber.

15.3.4 Door-to-Door Solicitations and Enrollments

15.3.4.1 Door-to-door sales at a residential dwelling shall be conducted by a community energy facility's agent between the hours of 9:00 a.m. to 8:00 p.m. prevailing Delaware time. When a local ordinance has stricter limitations, the agent shall comply with the local ordinance.

15.3.4.2 For door-to-door sales, the agent shall promptly:

15.3.4.2.1 Identify the community energy facility they are representing;

15.3.4.2.2 State that the individual and the community energy facility do not represent Delmarva or any governmental agency;

15.3.4.2.3 State that the purpose of the visit is to sell a community energy facility subscription;

15.3.4.2.4 Prominently display an identification badge; and

15.3.4.2.5 Offer a business card or other material that lists:

15.3.4.2.5.1 The community energy facility's name and contact information, including telephone number; and

15.3.4.2.5.2 The agent's name and any other identification numbers provided to the sales agent by the community energy facility or agent.

15.3.4.3 Until the agent has provided the information required in subsection 15.3.4.2 of this regulation, an agent performing a door-to-door sale may not request a potential residential or small commercial subscriber's:

15.3.4.3.1 Community energy facility account number;

15.3.4.3.2 Delmarva account number; or

15.3.4.3.3 Electric bill.

15.3.4.4 In connection with any door-to-door sale, it is a violation of this regulation for any community energy facility or agent to:

15.3.4.4.1 Fail to leave the prospective subscriber's premises upon request in a prompt and courteous manner; or

15.3.4.4.2 Fail to inform each residential or small commercial subscriber orally, at the time the residential or small commercial subscriber signs the contract, of the right to rescind without penalty or fee within three business days from the date of the transaction.

15.3.5 Internet enrollments. For electronic contracting on the internet, the community energy facility's website must be configured to prompt the residential or small commercial subscribers to review and agree to the contract and contract summary before the contract is final, and to print or save the contract and contract summary.

15.3.6 The community energy facilities shall not be entitled to the customer list described in 26 DE Admin. Code 3001, subsection 3.3.

15.3.7 Agent Training:

15.3.7.1 A community energy facility shall ensure the training of its agents on the following subjects:

15.3.7.1.1 State and Federal laws and regulations that govern marketing, telemarketing, and door-to-door sales (for those agents engaging in telemarketing or door-to-door sales), including consumer protection regulations required by Delaware law and regulations;

15.3.7.1.2 The community energy facility's products and services;

15.3.7.1.3 The community energy facility's prices, price structures and payment options;

15.3.7.1.4 The subscriber's right to rescind and cancel contracts;

15.3.7.1.5 The applicability of an early termination fee for contract cancellation when the community energy facility has one;

15.3.7.1.6 The community energy facility's contract and contract summary;

15.3.7.1.7 The necessity of correctly and fully explaining the contract and contract summary, while relying on a standard sales script and knowledge of the contents of the sales script, if one is used;

15.3.7.1.8 The proper completion of transaction documents;

15.3.7.1.9 Information about how subscribers may contact the community energy facility to obtain information about billing, disputes, and complaints; and

15.3.7.1.10 The confidentiality and protection of subscribers' customer information.

15.3.7.2 A community energy facility shall document the training of an agent and maintain a record of the training for 3 years from the date the training was completed.

15.3.7.3 A community energy facility shall make training materials and training records available to the Commission, DPA, and the Consumer Protection Unit upon request.

15.3.7.4 When a community energy facility contracts with an independent contractor or vendor to perform marketing or sales activities on the community energy facility's behalf or purchases leads from an independent contractor or vendor, the community energy facility shall confirm that the contractor or vendor has provided community energy facility-approved training to its agents in accordance with this subsection.

15.3.7.5 The community energy facility shall routinely monitor telemarketing calls and door-to-door sales calls to:

15.3.7.5.1 Evaluate the community energy facility's training program; and

15.3.7.5.2 Ensure that agents are providing accurate and complete information, complying with applicable regulations and providing courteous service to subscribers.

15.3.7.6 The community energy facility shall maintain records of such monitoring activities, results, and actions taken in response to the results of the monitoring activities and make such records available to the Commission, DPA, and the Consumer Protection Unit upon request.

26 Del. Admin. Code § 3013-15.0

27 DE Reg. 987 (6/1/2024) (Final)