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Massachusetts Department of Public Utilities (DPU) Commissioner Cecile Fraser assigned as Delegated Commissioner issued a Notice of Probable Violation against CleanChoice Energy, Inc. proposing a $5 million civil penalty and revocation of the supplier’s license alleging “egregious misconduct and a pattern of misconduct,” in violation of various applicable statutes and rules.”

Excerpts from Delegated Commissioner’s Notice of Probable Violation Against  CleanChoice: 

consumer{***} IV. PROPOSED SANCTIONS 

“The problematic business practices identified above demonstrate that the Respondent has failed to comply with the Commonwealth’s consumer protection requirements. I consider that the Respondent engaged in business practices that nullified any manifestation of affirmative choice made by customers to select CleanChoice as their electricity supply provider. Accordingly, CleanChoice did not receive affirmative consent and, thus, unlawfully provided each customer with supply service. G.L. c. 164, § 1F(8)(a)(i); 220 CMR 11.05(4)(a). Additionally, I allege that CleanChoice disseminated inaccurate information and, thereby, failed to comply with the Department’s regulation on information disclosure. 220 CMR 11.06(7). Further, I allege that CleanChoice engaged in business acts and practices that were unfair and deceptive as defined by the Attorney General in 940 CMR 19.00. As set forth above, the Attorney General’s regulations define unfair and deceptive acts and practices. The Department requires competitive suppliers to comply with the Attorney General’s regulations. 220 CMR 11.06(3), (6). Further, the Department’s regulations allow the Department to take licensure action for egregious misconduct or a pattern of misconduct. 220 CMR 11.07(4)(c)1. The Attorney General regulations, thus provide standards by which the Department may define egregious misconduct and a pattern of misconduct, and take appropriate licensure action. Finally, CleanChoice has engaged in conduct that violates the Department’s rules and regulations under 220 CMR 11.07(4)(c)2, for which the Department may impose civil penalties. In some instances (call recording review), the Department’s review was limited to a small share of the Respondent’s actions related to marketing, sales, and service, and yet CleanChoice’s misconduct was severe. In other instances, CleanChoice’s violations of the Commonwealth’s consumer protection requirements was extensive (basic service rate comparisons, contact summary forms, contracts).” 

“The allegations set forth in Section III, above, demonstrate that CleanChoice’s business practices did not abide by the best practices set forth in D.P.U. 20-47, which are designed to ensure the veracity of the customer’s election. The failure to do so is a serious breach of a supplier’s duty and causes harm to customers, contributes to a lack of confidence in the competitive electricity supply market, and can thwart the Legislature’s plan for broad participation in this market with substantial consumer benefits. D.P.U. 20-47, at 18-20. CleanChoice’s failure to abide by the best practices set forth in D.P.U. 20-47 should be considered by the Commission in determining appropriate sanctions.”

“I propose the following sanctions for CleanChoice pursuant to 220 CMR 11.07(3)(b) and (c). 

1. Refunds. For all the customers for whom CleanChoice did not receive affirmative customer choice,19 the Department should determine and require CleanChoice to refund to (1) the customer the difference in amounts paid to prior supplier and amount paid to CleanChoice and any reasonable expenses incurred switching back to the prior supplier and (2) the prior supplier the amount it would have received from customers during the time served by CleanChoice. G.L. c. 164, § 1F(8)(c); 220 CMR 11.07(3)(b)1-3. 
2. Civil Penalty. For all the customers that CleanChoice switched for whom CleanChoice did not receive affirmative customer choice, the Department should require CleanChoice to pay a civil penalty in the amount of $1,000 per customer. G.L. c. 164, § 1F(8)(d); 220 CMR 11.07(3)(c). 
3. Licensure Action. The Department should prohibit CleanChoice from selling electricity to any customers in the Commonwealth for a period of one year given the violations set forth above. G.L. c. 164, § 1F(8)(e); 220 CMR 11.07(3)(c). 

“Further, I allege that CleanChoice’s business practices constitute unfair and deceptive acts and practices as defined by the Attorney General’s consumer protection regulations at 940 CMR 19.04, 19.05, and 19.06. Accordingly, CleanChoice’s business practices are in violation of 220 CMR 11.06(6)(a). Such conduct rises to the level of egregious misconduct and a pattern of misconduct, which warrant the Department to take licensure action and impose civil penalties pursuant to 220 CMR 11.07(4)(c)1 and 2. I consider that the Respondent engaged in business practices such that it is appropriate to warrant its removal from the residential market, and for the Respondent to incur financial sanctions.”

“As such, I propose the following sanctions for CleanChoice pursuant to 220 CMR 11.06(7) and 220 CMR 11.07(4)(c): 

1. License Revocation. The Department should revoke CleanChoice’s competitive supplier license. 220 CMR 11.06(7); 220 CMR 11.07(4)(c)1. To ensure an effective transition of CleanChoice’s customer base, CleanChoice should be provided 90 days to transfer its customers to basic service. 
2. Civil penalty. The Department should assess CleanChoice a civil penalty of $5,191,000. 220 CMR 11.07(4)(c)2. The amount is derived from: 
3. direct mail pieces at $10 per violation subject to the $5,000,000 maximum for any related series of violations (see Section III.В, above); 
4. nine violations of deceptive statements at $1,000 per violation ($9,000) (see Sections III.C and III.E):20 
5. three enrollment sales agent violations at $25,000 per violation ($75,000) (see Section III.D, above); 
6. four unauthorized enrollments at $25,000 per violation ($100,000) (see Section III.G, above); and
7. seven violations of customer service agents at $1,000 per violation ($7,000) (see Section III.H, above).” 

{***} V. RESPONSE TO THIS NOPV 

“The Respondent must respond within thirty (30) days from the date of this NOPV. The Respondent should submit one copy of its response to Secretary Mark D. Marini at dpu.efiling@mass.gov, one copy to Lauren Morris, Prosecuting Hearing Officer at lauren.morris@mass.gov, and one copy to Timothy Federico, Presiding Hearing Officer at timothy.m.federico@mass.gov. Should the Respondent fail to respond to the allegations or fail to appear at an adjudicatory hearing, which hearing may be scheduled by the Presiding Officer, the Department will issue a default judgment against the Respondent. Guidelines, Section 4(4). The Respondent must be represented by counsel in this proceeding and has the right to review documentary evidence against it in the record, on which the Nondelegated Commissioners21 will rely for their decision. Guidelines, Section 4(4). Additional parties may petition the Department to intervene in the proceeding, subject to meeting the “substantially and specifically affected by the proceeding” requirements of 220 CMR 1.03.”

Allege Violations

{***} B. Inaccurate and Deceptive Basic Service Rate Comparison in Direct Mail Marketing Materials 

“The Consumer Division received complaints from two recipients of CleanChoice’s direct mail advertising material. The complainants assert that the advertising was deceptive because the Respondent compared its price offering to expired basic service rates. In fact, the expired basic service rates were higher than the basic service rates in effect when the customer received the marketing material. Complainant #1 received the advertising material on July 31, 2023, which compared CleanChoice’s price to Eversource East’s basic service rate that expired June 30, 2023. The expired rate was 25.776 cents per kWh, which was 9.698 cents per kWh, or 160 percent, higher than the 16.078 cents per kWh basic service rate in effect when the advertising material was received (Exh. DC-Respondent’s March 26, 2024 Letter at 3).8 Complainant #1 filed his complaint and a copy of the marketing material on August 9, 2023 (Exhs. DC-Complainant #1 Complaint; DC-Complainant #1 Mail).”

“In advertising its product, CleanChoice provided prospective customers with vastly inflated, inaccurate basic service rates as points of comparison to its product offerings. Under the Attorney General’s regulations, CleanChoice engaged in unfair or deceptive acts or practices by providing consumers with marketing materials that made material misrepresentations that CleanChoice knew or reasonably should have known had the capacity or tendency to deceive or mislead, or actually did deceive or mislead reasonable consumers, in any material respect relating to the basic service price being charged by Eversource East and National Grid and the price CleanChoice was advertising. 940 CMR 19.04(g).”

“CleanChoice’s advertising materials were inaccurate and deceptive. As such, the affected customers’ election of the Respondent’s product was not transparent or informed, thus nullifying any manifestation of affirmative choice made by customers that received these advertising materials. Accordingly, CleanChoice did not receive affirmative customer consent and, thus, unlawfully provided each customer with supply service. G.L. c. 164, § 1F(8)(a)(i); 220 CMR 11.05(4)(a).” 

“Additionally, CleanChoice disseminated inaccurate information and, thereby, failed to comply with the Department’s regulation on information disclosure. 220 CMR 11.06(7). Further, CleanChoice engaged in business acts and practices that were unfair and deceptive as defined by the Attorney General in 940 CMR 19.00 (material representation any term of agreement, 940 CMR 19.04(d); material representation generation/basic service price, 940 CMR 19.04(e); material representation price comparison, 940 CMR 19.04(g); failure to disclose material information that deceives/misleads, 940 CMR 19.05(1); failure to disclose material fact that affects decision not to enter into a transaction, 940 CMR 19.05(2); making price comparison without providing relevant material facts, 940 CMR 19.06(3). The Department requires competitive suppliers to comply with the Attorney General’s regulations. 220 CMR 11.06(3), (6). In failing to do so and engaging in unfair or deceptive acts or practices, CleanChoice’s business practices constitute egregious misconduct and a pattern of misconduct under 220 CMR 11.07(4)(c)1. Finally, CleanChoice has engaged in conduct that violates the Department’s rules and regulations under 220 CMR 11.07(4)(c)2.”

{***} C. Deceptive Pricing Practices 

“The Respondent offers electricity supply products that have a three-month fixed introductory price, which then renews to a variable monthly price if the customer does not cancel service or choose a new product. CleanChoice’s contract summary form provides that “your price is subject to change monthly, based on market conditions and CleanChoice Energy’s costs to provide energy supply service” (Exh. DC-Contract Summary Form at 1). 11 Eight customers (i.e., Complainants #3, #5 (meter 1 and 2), #6, #8, #9, #10, #11, and Enrolling Customer #3) chose such a product. Seven of these eight customers filed complaints with the Consumer Division based on the high variable prices their respective contracts reached (Exhs. DC-Complainant #3 Complaint; DC-Complainant #5 Complaint; DC-Complainant #6 Complaint; DC-Complainant #8 Complaint; DC-Complainant #9 Complaint; DC-Complainant #10 Complaint; DC-Complainant #11 Complaint).”

“For these eight customers, the introductory prices ranged from approximately 12 to 19 cents per kWh. Following the expiration of the fixed-rate introductory period, these customers were placed on a monthly variable price that increased each month for five to nine months. Following these multiple months of price increases, these customers were charged prices between 34.7 and 59.4 cents per kWh or price increases between 133 percent and 214 percent (Exh. DC-Customer Rate History, tab Complainant # 3, 5(1), 5(2), 6, 8, 9, 10, 11, Enrolling Customer 3, Table 1).” 

“The highest prices charged to these customers are, in and of themselves, concerning. However, it is the number of months that these customers were charged a variable price, which only increased, that concerns me here. CleanChoice represented that its prices are subject to change monthly “based on market conditions and CleanChoice Energy’s costs.”12 Typically, market conditions, energy costs, and seasonality would cause the electricity supply price to increase and decrease over time. That did not happen for these customers. Table 1, below, shows the time periods and price increases that customers experienced before experiencing a decrease in their variable prices.”

{***} D. Deceptive Marketing and Price Increases 

“The Respondent provides disclosures regarding its variable prices in its direct mail advertising materials — “Your variable rate may be higher than your utility rate or other suppliers’ rates” — and in its contract summary form — “your future monthly prices may be higher or lower than the introductory price” (Exhs. DC-Direct Mail 1, at 2; DC-Contract Summary Form at 1). Although the disclosures provide customers with a generic warning of the product’s price volatility, the direct mail advertising material and contract summary form do not provide any information regarding the potential extreme magnitude of the Respondent’s variable price levels, as discussed in Section III.C, above (see Table 1). Before enrolling, prospective customers are not informed of the monthly variable price(s) in effect at that time, prior history of monthly variable prices, nor any warning that its monthly variable prices could be significantly higher than the price offered for the fixed introductory price period. 13 Following enrollment, the Respondent does not notify customers of the expiration of the introductory price nor what the customer’s variable price will be.”

“Additionally, for three customers14 who called the Respondent to enroll after receiving the direct mail advertising material, the sales agents did not disclose that at the end of the introductory period the Respondent’s prices could be subject to extreme increases. Quite to the contrary, each of the three sales agents made claims that the enrolling customers would benefit from the Company’s pricing after the introductory period. CleanChoice’s sales agents made these representations despite not having any way to know what the Respondent’s prices would be in the future. To illustrate, below are excerpts from conversations between CleanChoice’s sales agents and customers who enrolled in a product with a fixed introductory price.”

1. Monthly Variable Price Disclosures 

“For its variable-priced products, CleanChoice provides multiple disclosures describing the Respondent’s prices and tying them to market conditions. First, when CleanChoice enrolls a customer, the Respondent provides each customer with a contract summary form, required by D.P.U. 19-07-A. The contract summary form states: “your price is subject to change monthly, based on market conditions and CleanChoice Energy’s costs to provide energy supply service” (Exh. DC-Contract Summary Form at 1) (emphasis added)). Next, CleanChoice’s contract contains the following provision: “this Agreement will automatically renew on a month-to-month basis at a price per kWh that may vary monthly depending on market conditions” (Exh. DC-Contract at 4) (emphasis added)). And for customers that receive direct mail advertising, the advertising material contains a summary table that states: “your price is subject to change monthly, based on market conditions and CleanChoice Energy’s costs to provide energy supply” (Exh. DC-Direct Mail 1, at 2) (emphasis added)). 16”

“Complainants #3, #5, #7, #8, #9, #10, and #11 each received the contract summary form and contract with the above-quoted language (Exhs. DC-Complaint Response 3; DC-Complaint Response 5; DC-Complaint Response 7; DC-Complaint Response 8; DC-Complaint Response 9; DC-Complaint Response 10; DC-Complaint Response 11). Complainant #7 and Enrolling Customer #3 each received the direct mail advertisement with the above language (Exhs. DC-Complaint Response 7; DC-Direct Mail 3).” 

“The complainants and enrolling customer mentioned above demonstrate that a subset of CleanChoice’s customers were enrolled with the understanding that their rate would vary based on market conditions. However, once the fixed introductory prices expired for a certain number of its customers, CleanChoice increased customers’ expiring fixed price by approximately 18 percent for the first month of the contract’s variable month-to-month pricing component.”

“The term “market conditions” indicates a tie to market prices and related costs incurred by the Respondent. Yet, the Respondent increased prices by approximately 18 percent for the first month of variable month-to-month pricing for customers that had different introductory prices. One would expect the price increase for customers with different introductory prices to have different percentage increases after the introductory offer once the Respondent accounts for market conditions and its costs. Further, the 18 percent price increase did not occur due to market seasonality because the increases occurred during different months for different customers (Exh. DC-Customer Rate History, tab Table 2). Finally, as demonstrated in Table 1, above, there are several instances where a customer’s rate increases continuously from month-to-month for a period of five to nine consecutive months. If the Respondent’s rates were truly based on market conditions, one would expect to see a rate decrease for some of these customers as well. The 18 percent increase appears to be a set price increase for when CleanChoice’s variable rate terms expire, instead of being related to market conditions or the Respondent’s costs. It appears that each document misrepresented how the Company would determine future monthly prices because (1) the increases bear no relation to market conditions over the meter initiation date, and (2) there is not an explanation for how CleanChoice’s costs to provide energy supply service could support the uniform rate of price increases.” 

“CleanChoice’s practice of increasing all contract rates by 18 percent for the first variable priced month demonstrates that the Respondent’s language in its contract summary form, direct mail advertising, and contract does not accurately reflect how the Company determines its monthly variable price increases. As such, these customers’ selection of the Respondent’s product was not transparent or informed, thus nullifying any manifestation of affirmative choice made by customers that received these documents. Accordingly, CleanChoice did not receive affirmative customer consent and, thus, unlawfully provided each customer with supply service. G.L. c. 164, § 1F(8)(a)(i); 220 CMR 11,05(4)(a). D.P.U. 25-138 Page 23” 

“Additionally, CleanChoice disseminated inaccurate information and, thereby, failed to comply with the Department’s regulation on information disclosure. 220 CMR 11.06(7).” 

“Further, the use of false statements in the contract summary form likely constitutes a violation of Department regulations pursuant to D.P.U 19-07-A.” 

“Finally, CleanChoice engaged in business acts and practices that were unfair and deceptive as defined by the Attorney General in 940 CMR 19.00 (material representation any term of agreement, 940 CMR 19.04(d); failure to disclose material information that deceives/misleads, 940 CMR 19.05(1); failure to disclose material fact that affects decision not to enter into a transaction, 940 CMR 19.05(2)). The Department requires competitive suppliers to comply with the Attorney General’s regulations. 220 CMR 11.06(3), (6). In engaging in unfair or deceptive acts or practices, CleanChoice’s business practices constitute egregious misconduct and a pattern of misconduct under 220 CMR 11.07(4)(c)1. Finally, CleanChoice has engaged in conduct that violates the Department’s rules and regulations under 220 CMR 11.07(4)(c)2.”

Notice of Probable Violation  (09/15/2025) 

25-138

(Notice of Probable Violation to CleanChoice Energy LLC)