State Regulator's Staff Does Not Oppose Allowing Several In-Person Marketing Channels To Resume, But Opposes Channels Where Meeting Is Not Prearranged

August 17, 2020

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Reporting by Paul Ring • ring@energychoicematters.com

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Staff of the Illinois Commerce Commission recently filed comments on several separate petitions from retail energy suppliers to resume various in-person marketing channels, with Staff not opposing much of the relief, but opposing channels in which a sale representative would appear without a prearranged invitation from the prospective customer.

Various Vistra Energy retail energy brands filed a petition seeking relief from the ICC's emergency order prohibiting in-person marketing, for several channels.

As summarized by ICC Staff, Vistra requested that its sales agents be permitted to resume in-person solicitation: (a) at static booths in retail stores allowed to be open to the public during Phase 4 of the Restore Illinois program; (b) by meeting with customers at mutually agreed locations; and (c) through "[o]ther in-person solicitations of business (non-residential) customers strictly limited to scenarios where the ARES ... utilizes a fully touchless enrollment process[] and ... not less than 48 hours prior to commencing any in[-]person solicitations, provides the ICC in writing the times, dates, duration, and locations where Vistra ... intend[s] to engage in in-person solicitations."

Staff also said that Vistra asserts that it will only conduct such, "other in-person solicitations of business (non-residential) customers," at locations open during Phase 4.

Staff said that it does not object to the Commission granting much of the relief sought by Vistra, but is concerned with, "Vistra’s desire to conduct in-person solicitations of non-residential customers in a manner that appears to be effectively door-to-door, without prearrangement[.]". Staff does not recommend that the Commission authorize such in-person marketing without prearrangement

Staff said, "First, this appears to be an attempt by Vistra to obtain authority to go 'door-to-door' to businesses. The Staff has found nothing in DCEO [Department of Commerce and Economic Opportunity] Phase 4 guidelines that allow for this. Second, Staff sees no reason why Vistra cannot prearrange such solicitations in the same manner as with solicitations of residential customers. Third, commercial premises open during Phase 4 are in most cases subject to strict occupancy limitations which permit businesses, at maximum, 50% of the normally-permitted number of customers. Unannounced and unexpected ARES representatives -- who are not in any sense invitees -- appears to count towards such limits. Businesses should not lose customers as a result of the unsolicited and possibly unwanted presence of an ARES representative."

Staff also expressed concern with even pre-scheduled solicitations at a prospective customer's home

"Moreover, so far as Staff is able to determine, DCEO has issued no guidelines, directives or any other materials suggesting that in-person solicitations at undisclosed, non-public locations are proper in Phase 4. In Staff’s view, this is a critical distinction. Staff regards even pre-scheduled solicitations at residential customers’ own homes to be a source of significant concern where, as in the current situation, Illinoisans are compelled by both circumstances and mandated limitations on their use of other spaces and venues to spend far more than usual amounts of time in their homes. Vistra’s filing lacks detail in this regard and would permit agents to schedule in-home visits with potential customers, which is a source of grave concern to Staff in light of the public health emergency," Staff said

In a reply to Staff's comments concerning pre-scheduled solicitations at a customer's home, Vistra said, "With regard to meeting customers at their homes or businesses, Vistra trains sales agents to never enter a customer’s home under any circumstances and to immediately leave the business establishment if requested. Vistra sales agents are also prohibited from physically providing customers materials. Instead, in other states that have allowed in-person solicitation (including Ohio, Texas, and Michigan), Vistra requires sales agents to stand outside of the customer’s home where the agents must then maintain a six-foot distance from the customer."

While Staff said that Vistra's enumerated safety measures appear reasonable, Staff said that the ICC should not endorse them, and that suppliers are responsible for following state health guidelines from DCEO

"[T]he Commission should decline Vistra’s invitation to 'set standards for safe, Phase-appropriate resumption of in-person marketing consistent with the standards for safety imposed for similar interactions[,]' and 'develop milestones by which certain types of in-person solicitation may resume and expectations for how such in-person solicitation may be conducted at the appropriate stages[.]'. What Vistra asks the Commission to do is, in essence, to interpret DCEO and Illinois Department of Public Health directives and guidance for ARES. In the past, Commission has sensibly declined to interpret statutes and regulations imposed by another state agency," Staff said

"Further, this appears to Staff to be an attempt by ARES to seek a 'safe harbor' from the Commission which allows them to resume in-person solicitations without taking the trouble to determine for themselves what they need to do to comply with existing requirements governing such solicitations during the public health emergency. Accordingly, the Commission should not conduct 'further proceedings in these dockets for implementation of further health and safety expectations related to in-person solicitation from any interested party," Staff said

"The State of Illinois’ Department of Public Health and DCEO have promulgated requirements, guidelines and best practices with which entities wishing to conduct meetings during Phase 4 must comply. These requirements and guidelines were propounded by state agencies in consultation with public health experts. In addition, units of local government have in some cases promulgated their own requirements and guidelines, again reflecting the expertise of public health experts. To the extent that Vistra seeks to conduct in-person solicitation in Illinois, it is required to comply with all state and local requirements and guidelines. It can and should implement such additional best practices as it deems necessary to insure the health and safety of customers and sales agents. However, the Commission should decline to endorse or approve any such practices. Vistra should not be held harmless by a Commission order for any adverse consequences that might result from resuming in-person solicitations," Staff said

In a concern applicable to petitions from other suppliers as well, Staff said that, to the extent Vista prearranges for in-person customer solicitations over the telephone (scheduling, etc.), "the Commission should make clear that all statutory requirements and administrative rules governing telephone solicitations by ARES, and indeed solicitations generally by ARES, apply to any scheduling calls and must be observed and complied with, particularly 83 Ill. Adm. Code 412.130."

Staff said that suppliers must engage in strict oversight of any agents with respect to health and public safety

"Phase 4 guidelines for meeting appear to Staff to require close monitoring by meeting organizers of the health status, and social distancing and sanitizing / disinfecting practices of attendees. Accordingly, if any ARES intends to begin in-person solicitations, it should be expected and prepared to exercise careful, responsible and active oversight of employees and agents regarding compliance with all applicable federal, state and local requirements and guidelines governing the health status, and social distancing and sanitizing / disinfecting practices. The ARES practice of distancing themselves from the activities of agents acting on their behalf by ascribing agents’ unlawful, unfair, deceptive or otherwise improper conduct to lax oversight by third party vendors is simply unacceptable under the current public health conditions. If Vistra wants to conduct in-person solicitations in Illinois during Phase 4, it is entirely responsible for ensuring its agents’ compliance with public health requirements and guidelines. The Commission’s Order should make this clear and should also make clear that any failure of oversight or compliance that comes to the Commission’s attention will cause the Commission to revisit any Order it issues modifying the Emergency Order," Staff said

Staff said that to the extent any relief is granted, such relief should apply only in those areas of the State that remain in Phase 4 status. "Should the State as a whole or any area revert to Phase 3 or lower, or should any municipality determine that Phase 4 or similar retail guidelines cannot be maintained consistent with public safety, Vistra should immediately cease in-person solicitations in any such area or municipality in which a reversion to Phase 3 takes place, or in which local authorities determine that Phase 4 or similar retail guidelines cannot be maintained consistent with public safety," Staff said

Staff also said that any relief granted should be specifically limited to the specific petitioners and their specific requests (such as Vistra). "To the extent that a significant number of other ARES are similarly situated, they may seek similar relief, either individually or collectively. Should any do so, the Commission may wish to consider whether granting more general relief from the Emergency Order is warranted," Staff said

IGS Petition

Interstate Gas Supply, Inc. d/b/a IGS Energy filed a separate petition seeking authority to resume in-person solicitations, conducted by IGS's Home Energy Consultants (HECs), with prospective or existing customers through prearranged meetings at mutually-agreed locations

Staff generally does not object to the Commission granting IGS's motion, subject to some of the general provisions that Staff recommended also be applicable to Vistra, such as the ICC not endorsing specific health safety practices for suppliers; that telephone calls to schedule a prearranged meeting shall be subject to 83 Ill. Adm. Code 412.130; and strict oversight of sales agents with respect to meeting health and safety regulations

Staff did again raise concern with respect to even prearranged solicitations at a customer's home

"Staff can determine, DCEO has issued no guidelines, directives or other any other materials suggesting that in-person solicitations at undisclosed, non-public locations are proper in Phase 4. In Staff’s view, this is a critical distinction. Staff regards even pre-scheduled solicitations at residential customers’ own homes to be a source of significant concern where, as in the current situation, Illinoisans are compelled by both circumstances and mandated limitations on their use of other spaces and venues to spend far more than usual amounts of time in their homes. IGS’s filing lacks detail in this regard and would permit HECs to schedule in-home visits with potential customers; as such it is a source of grave concern to Staff in light of the public health emergency," Staff said

In a reply to Staff's comments, IGS addressed Staff's concerns by stating that, "As a matter of policy, IGS’ HECs are strictly prohibited from entering a customer’s home under any circumstances through the Governor’s State of Emergency. IGS considers entering a customer’s house under current conditions -- even if the HEC is invited in -- to itself be grounds for immediate termination of employment of the HEC."

NRG Petition

The NRG retail suppliers filed a separate motion seeking authorization to resume in-person sales conducted within retail establishments

Staff does not object to the Commission granting the NRG suppliers' motion, for those areas of the State that remain in Phase 4 status.

Docket No. 20-0310

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