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ALJ Denies Retail Supplier's Procedural Motion Regarding Due Process Concerns

December 14, 2015

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Copyright 2010-15 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

An Illinois ALJ has denied a motion from Sperian Energy Corp. which had sought, citing due process concerns, to require Illinois Commerce Commission Staff to issue a formal complaint or "more definite statement" in a proceeding examining the company's marketing practices

As previously reported, the ICC in July issued a show cause order to Sperian Energy after a Staff report alleged "significant violations" by the company

Click here for specific allegations leading to the show cause order

Sperian argued that the Staff report which formed the basis of the ICC's show cause order was inadequate.

"This case should not proceed without a complaint or equivalent formal pleading. The Illinois Appellate Court, Third District, has expressly held that an entity subject to potential revocation of its certificate by the Commission has a vested property right that is subject to due process protection," Sperian had said

"Moreover, the appellate court in Quantum found that the Public Utilities Act ('PUA'), 220 ILCS 5/1-101 et seq., required Staff to file a written complaint against the respondent, and that the Staff Report, testimony, and hearings in that case were not sufficient to meet due process requirements," Sperian had argued.

"The Staff Report is not an adequate substitute for a complaint from the standpoint of due process. The Staff Report presents an unverified, and untested, review of certain sales scripts, a Welcome Letter and the Company’s current Terms and Conditions, together with a series of Staff narratives regarding its concerns, as well as specific and general opinions about the Company’s conduct. Most of the allegations found in the Staff Report are undefined as to time and scope. Moreover, the Staff Report neither includes specific facts to support many allegations, nor explains how those facts form the grounds for the relief requested that are within the Commission’s jurisdiction. As such, the Staff Report fails to provide Sperian Energy with full and adequate notice of the specific violations that Staff is alleging so that the Company may adequately respond and prepare its defense," Sperian had argued.

An ALJ denied Sperian's motion.

"The Motion for Staff to Issue a Complaint or a More Definite Statement filed by Sperian Energy Corp. is denied. The Company argues that the Staff Report fails to provide it with full and adequate notice of the specific violations against it so that it can adequately respond and prepare its defense. Contrary to the Company’s arguments, the Staff Report and the Initiating Order provide the Company with the required notice of the allegations against it as well as the factual and legal basis for the allegations. In particular, the Staff Report sets forth the specific allegations against the Company, references to the specific provisions of the Public Utilities Act and Commission rules allegedly violated, and the relief sought. Additionally, the Company filed a lengthy response on September 30, 2015 in which it addressed each allegation in detail and indicated for each whether the Company agreed with or denied the allegation. The Company never raised the issue of due process or indicated that the allegations were not specific enough for it to adequately respond, which shows that the Company had adequate notice to fully understand the allegations against it and to adequately respond to these allegations. It appears, as CUB asserts, that the Company’s arguments elevate form over substance. The Staff Report and the Initiating Order provide the requisite notice that a complaint would provide and the Company’s response demonstrates that the Company was able to respond to the allegations as it would in an answer," the ALJ said

"Further, as Staff and CUB correctly state, what constitutes due process varies depending on the situation. Moreover, there is no legal basis for the Company’s assertion that notice and due process can only be satisfied through a formal complaint or equivalent formal pleading. The case law cited by the Company to support its position, Quantum Pipeline, is distinguishable and inapplicable to this case for several reasons. Notably, unlike that case, the instant proceeding does not involve reopening a proceeding and it was brought pursuant to the Commission’s specific statutory authority under Section 16-115B(b). Quantum Pipeline Co. v. Illinois Commerce Comm’n, 304 Ill. App. 3d 310 (3rd Dist. 1999). Section 16-115B(b) explicitly states that the Commission has 'authority, after notice and hearing held on complaint or on the Commission’s own motion' to order a non-conforming alternative retail electric supplier to cease and desist or correct any violations, to impose financial penalties, and to alter, modify, revoke or suspend a certificate of service authority. 220 ILCS 16-115B(b)," the ALJ said

Docket 15-0438

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