Section 20. Competitive service providers

A. Each competitive service provider shall comply with the following requirements with respect to its relationship with its potential or actual retail customers:

1. A competitive service provider shall, in any advertisements, solicitations, marketing materials, or customer service contracts, provide accurate, understandable information in a manner that is not misleading. Solicitations, advertising, and marketing materials shall contain a clear and conspicuous notice of a toll-free telephone number to contact for the additional information specified in subdivision 2 of this subsection. If such information is requested, it shall be provided in writing or by electronic means.

2. The following information shall be provided to the prospective customer in writing or by electronic means prior to, or contemporaneously with, the written contract: (i) for residential customers, an estimated total annual bill for a customer who uses, on a monthly basis, 1,000 kWh of electricity or 7.5 Mcf or 75 therms of natural gas, including all fees and minimum or fixed charges, exclusive of any nonrecurring financial or nonfinancial incentives, and the total average price per kWh, Mcf, or therm based on the annual bill; (ii) the value of any nonfinancial incentives or nonrecurring financial incentives; (iii) a statement regarding provisions for termination by the customer and by the competitive service provider; (iv) a statement of any minimum contract terms, minimum usage requirements, any required deposit, any applicable fees such as start-up fees or cancellation fees, and any minimum or fixed charges; and (v) following a clear and conspicuous caption: "Customer's Right to Cancel" in bold face type of a minimum size of 10 points, a statement that any customer may cancel its contract with a competitive service provider by notifying the competitive service provider or the local distribution company, without penalty, at any time prior to midnight of the 10th day following notification by the local distribution company of an enrollment request as provided in 20VAC5-311-30 B 4. If a competitive service provider's offer cannot be adequately described in accordance with the details described in clause (i) of this subdivision, or if the prospective customer is other than a residential customer, then the competitive service provider shall furnish similar information that will allow prospective customers to compare reasonably the full price of service if the competitive energy service is purchased from the competitive service provider to the full price of service charged by the local distribution company.

3. A competitive service provider, in arranging to provide service to a new customer, shall comply with the following requirements:

a. A competitive service provider shall enroll a customer only after the customer has affirmatively authorized such enrollment. A competitive service provider shall maintain adequate records allowing it to verify a customer's enrollment authorization. Examples of adequate records of enrollment authorization include: (i) a written contract signed by the customer; (ii) a written statement by an independent third party that witnessed or heard the customer's verbal commitments; (iii) a recording of the customer's verbal commitment; or (iv) electronic data exchange, provided that the competitive service provider can show that the electronic transmittal of a customer's authorization originated with the customer. Such authorization records shall contain the customer's name and address; the date the authorization was obtained; the name of the product, pricing plan, or service that is being subscribed; and acknowledgment of any switching fees, minimum contract terms or usage requirements, or cancellation fees. Such authorization records shall be retained for at least 12 months after enrollment and must be provided within five business days upon request by the customer or the staff of the State Corporation Commission. Such authorization procedures are not required where an existing customer moves to a new address and wishes to continue service with the same provider, provided that the competitive service provider is licensed to provide service to the customer's new location.

b. Upon obtaining the customer's authorization pursuant to subdivision a above, the competitive service provider shall send, contemporaneously: (i) an enrollment request to the local distribution company consistent with the terms and conditions of the local distribution company's pilot program or applicable pilot tariff as approved by the State Corporation Commission and (ii) a written contract to the customer. Such materials may be hand delivered, mailed or electronically transmitted, and shall be deemed to have been received on the date they are hand delivered or electronically transmitted or three calendar days after the date they are mailed.

c. The customer shall have 10 calendar days from the date the customer receives notification from the local distribution company pursuant to the procedures of 20VAC5-311-30 B 4 to advise the local distribution company or the competitive service provider that it wishes to cancel such enrollment or contract. In the event the competitive service provider receives a cancellation request, the competitive service provider shall, normally within one business day, notify the local distribution company of the customer's cancellation in order to terminate the enrollment process. Any customer that cancels an enrollment pursuant to the procedures of 20VAC5-311-30 B 4 shall be deemed to have withdrawn from the contract with that competitive service provider and shall incur no penalty or other obligation for doing so. Such contract shall thereupon be considered void from its inception and of no further effect.

d. The competitive service provider shall commence service to a customer on or after the date provided in the local distribution company's pilot program or applicable pilot tariff as approved by the State Corporation Commission. The competitive service provider may request, pursuant to the local distribution company's tariff or approved pilot program, a special meter reading, in which case the enrollment may become effective on the date of the special meter reading. The local distribution company shall perform the requested special meter reading as promptly as working conditions permit.

4. At a minimum, all customer service contracts shall include: (i) the price or, if the exact price cannot feasibly be specified, an explanation of how the price will be calculated; (ii) the length of the service contract; (iii) provisions for termination by the customer and by the competitive service provider; (iv) a statement of any minimum contract terms, minimum usage requirements, minimum or fixed charges, and any required deposit; (v) any applicable fees including, but not limited to, start-up fees, cancellation fees, late payment fees, and fees for checks returned for insufficient funds; (vi) a description of the dispute resolution procedures required pursuant to subsection A 8 of this section; (vii) following a clear and conspicuous caption: "Customer's Right to Cancel" appearing on the front side of the contract, or immediately above the customer's signature, in bold face type of a minimum size of 10 points, a statement that any customer may cancel its contract with a competitive service provider by notifying the competitive service provider or the local distribution company, without penalty, at any time prior to midnight of the 10th day following notification by the local distribution company of an enrollment request as provided in 20VAC5-311-30 B 4; and (viii) in a conspicuous place, confirmation of the customer's request for enrollment and the approximate date the customer's service will commence.

5. A competitive service provider claiming its offerings possess unusual or special attributes shall maintain documentation to substantiate any such claims. Such information may be made generally available through electronic means, and a written explanation shall be provided promptly upon request of any customer, prospective customer, competitive service provider, aggregator, local distribution company, or the staff of the State Corporation Commission.

6. In the event a competitive service provider collects security deposits or prepayments, such funds shall be held in escrow by a third party in Virginia, and the competitive service provider shall provide to the State Corporation Commission the name and address of the entity holding such deposits or prepayments.

7. A competitive service provider requiring a deposit or prepayment from a customer shall limit the amount of the deposit or prepayment to the equivalent of a customer's estimated liability for no more than two months' purchase of services from the competitive service provider by that customer.

8. A competitive service provider shall have in place explicit dispute resolution procedures and shall clearly identify the addresses and phone numbers of persons authorized to assist customers when they have a complaint.

9. A competitive service provider shall furnish to customers 24-hour toll-free telephone numbers to call (i) in a service emergency and (ii) for other customer inquiries regarding services provided by the competitive service provider. The 24-hour toll-free telephone numbers shall be stated on all customer billing statements.

10. A competitive service provider shall adequately safeguard customer information, including payment history, unless the customer affirmatively authorizes disclosure or unless the information to be disclosed is already in the public domain. This provision, however, shall not restrict the disclosure of credit and payment information as currently permitted by applicable federal and state statutes.

11. A competitive service provider may include provisions in its service contracts that provide for automatic contract renewal during and beyond the duration of the pilot program upon the same terms and conditions, provided that, in any event, the contract shall provide that (i) it will terminate if the competitive service provider's license expires, or is suspended or revoked, and (ii) once the pilot program ends, the contract is subject to termination by either party upon 30 days written notice to the other party.

12. In the event that a competitive service provider's services are terminated for any reason other than by a customer's decision to terminate the contract, the competitive service provider shall send written notification of such termination to the customer at least 30 days prior to the date that service to the customer is scheduled to terminate.

B. Each competitive service provider shall comply with the following provisions with respect to its relationship with the local distribution companies and transmission providers:

1. A competitive service provider shall submit to the local distribution company the full name of the competitive service provider, the type of entity (e.g., partnership or corporation), physical street and mailing addresses, and the names, telephone numbers, and e-mail addresses of appropriate contact persons, including a 24-hour emergency telephone number, and the name, title, and address of any registered agent in Virginia for service of process.

2. A competitive service provider shall furnish the local distribution company and the transmission provider proof of licensure from the State Corporation Commission to provide competitive energy services in the Commonwealth.

3. A competitive service provider shall adhere to all requirements of schedules, terms, and conditions of service under the rate schedules and tariffs approved by the State Corporation Commission or the Federal Energy Regulatory Commission, and of the local distribution company and the transmission provider, as applicable.

4. a. A competitive service provider selling electricity or natural gas, or both, at retail shall:

(1) Procure sufficient electric generation and transmission service or sufficient natural gas supply and delivery capability, or both, to serve the requirements of its firm customers;

(2) Abide by any applicable regulation or procedure of any institution charged with ensuring the reliability of the electric or natural gas systems, including the State Corporation Commission, the North American Electric Reliability Council, or the Federal Energy Regulatory Commission, or any successor agencies thereto;

(3) Comply with any obligations that the State Corporation Commission may impose to ensure access to sufficient availability of capacity; and

(4) Comply with generally accepted technical protocols applicable to particular competitive services.

b. In the event of a failure to fulfill the obligations set forth in subdivision a above, the competitive service provider shall be responsible for any applicable penalties as authorized or required by the regulator with jurisdiction over the matter.

5. An affiliated competitive service provider may use the name or logo of its affiliated local distribution company in advertising and solicitation materials. A disclaimer that clearly and conspicuously discloses that the affiliated competitive service provider is not the same company as the local distribution company shall accompany any such use. Such disclaimers shall not be required, however, on company vehicles, clothing, or trinkets, writing instruments, or similar promotional materials. Upon complaint of any interested person, the Attorney General, staff motion, or on its own motion, the State Corporation Commission may, after notice and an opportunity for hearing, make a determination whether any such usage is misleading and, if so, take appropriate corrective actions.

6. An affiliated competitive service provider shall operate independently of its affiliated local distribution company and shall abide by the following provisions with respect to any competitive energy service it offers in the certificated service territory of the affiliated local distribution company:

a. Not later than the commencement of the local distribution company's pilot program, or the date of licensure of such affiliated competitive service provider under this chapter, whichever is later, the affiliated competitive service provider shall implement internal controls to ensure that it and its employees that are engaged in the (i) merchant operations, transmission, or reliability functions of the electric generation or natural gas supply systems, or (ii) customer service, sales, marketing, accounting or billing functions, do not receive information from an affiliated local distribution company or from entities that provide similar functions for or on behalf of its affiliated local distribution company or affiliated transmission provider as would give such affiliated competitive service provider an undue advantage over nonaffiliated competitive service providers. For purposes of this subdivision, "undue advantage" means an advantage that is reasonably likely to affect adversely the development of effective competition within the Commonwealth.

b. An affiliated competitive service provider shall file with the State Corporation Commission, a revised listing and description of all internal controls required in subdivision a above within 10 days subsequent to any modification of such controls as were originally provided under 20VAC5-311-50 A 7 as part of the requirements of the affiliated competitive service provider's application for license.

c. An affiliated competitive service provider shall document each occasion that an employee of its affiliated local distribution company, or of the transmission provider that serves its affiliated local distribution company, becomes one of its employees and each occasion that one of its employees becomes an employee of its affiliated local distribution company or the transmission provider that serves its affiliated local distribution company. Upon staff's request, such information shall be filed with the State Corporation Commission that identifies each such occasion. Such information shall include a listing of each employee transferred and a brief description of each associated position and responsibility.

7. In the event that a competitive service provider's services are terminated for any reason other than a customer's decision to terminate the contract, the competitive service provider shall provide notice of the termination, by any means specified by the VAEDT, to the local distribution company at least 30 days prior to the date that the competitive service provider's service to the customer is scheduled to terminate. In the event of a customer's decision to terminate the contract, the competitive service provider shall provide such notice to the local distribution company, normally within one business day, upon receipt of the customer's decision to terminate.

C. Competitive service providers shall be subject to the following general requirements:

1. Each person seeking to engage in the activities of a competitive service provider shall obtain a license from the State Corporation Commission prior to commencing such activities.

2. A competitive service provider shall comply with all initial and continuing requirements of the State Corporation Commission's licensure process and any reasonable registration processes required by the local distribution company and the transmission provider. Should the State Corporation Commission determine, upon complaint of any interested person, the Attorney General, staff motion, or upon its own motion, that a competitive service provider has failed to comply with any of the requirements of this chapter or a commission order related thereto, the State Corporation Commission may, after providing due notice and an opportunity for a hearing, suspend or revoke the competitive service provider's license or take any other actions permitted by law or regulations as it may deem necessary to protect the public interest.

3. A competitive service provider shall, to the maximum extent feasible, adhere to standard practices for exchanging data and information in an electronic medium as may be specified by the VAEDT and as specified in the local distribution company's pilot program or applicable pilot tariff as approved by the State Corporation Commission. A competitive service provider shall cooperate with the VAEDT to comply on a continuing basis with the development and implementation of EDI requirements.

4. A competitive service provider providing electric service shall annually file a report with the State Corporation Commission stating: (i) to the extent feasible, fuel mix, and emissions data on at least an annualized basis or (ii) why it is not feasible to submit any portion of such data.

5. A competitive service provider shall retain customer billing and account records and complaint records for at least three years.

6. Each affiliated competitive service provider shall maintain separate books of accounts and records.

7. The competitive service provider shall not:

a. Suggest that the services provided by the local distribution company are of any different quality when either electricity, natural gas, or both is purchased from a particular competitive service provider; or

b. Suggest that the competitive energy services provided by a competitive service provider are being provided by a local distribution company rather than the competitive service provider.

Historical Notes

Derived from Volume 16, Issue 20, eff. May 26, 2000.

Statutory Authority

§ 12.1-13 of the Code of Virginia.