Another Retail Supplier Seeks Authority To Conduct In-Person Sales At Retail Stores

AG Says Commission Can't Rule On Prior Motions For In-Person Marketing Resumption, As AG Says Such Motions Were Already Disposed Of When ICC Declined To Rescind Its Emergency Prohibition Order

December 15, 2020

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Reporting by Paul Ring • ring@energychoicematters.com

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Just Energy Solutions Inc. (the Movant) has petitioned the Illinois Commerce Commission for a modification of the ICC's prior order prohibiting in-person marketing by retail energy suppliers to allow Just Energy to engage in limited in-person solicitation for in-store marketing and enrollments in retail establishments that have been authorized to re-open by the Governor and the Director of the Illinois Department of Public Health

Previously, in a response filed in support of an ICC Staff motion to rescind the emergency prohibition order in its entirety, Just Energy had sought authority to conduct in-store marketing to the extent the ICC did not grant Staff's motion. As previously reported, the ICC declined Staff's motion to rescind the emergency prohibition order. Just Energy has now filed a formal motion for modification of the emergency prohibition order

Just Energy said that it shall comply with all applicable rules and guidelines including compliance with "Restore Illinois" (that maintains certain social distancing requirements and face coverings) as well as implementing certain best practices.

"[T]he Movant has implemented significant safety measures in response to the pandemic. As an example, the Movant has developed training information for the safety of employees, partners, and customers to ensure that sales are conducted safely in retail stores," Just Energy said

"Importantly, in order to offer in-store marketing at retail establishments, Just Energy will comply with all State and local requirements and guidelines. Additionally, Just Energy will implement additional best practices as deemed necessary to continue to ensure the health and safety of sales agents and customers," Just Energy said

Just Energy did not further list specific practices it will undertake due to Staff's prior recommendation that, in granting any request for a resumption of certain in-person marketing, the ICC not endorse any specific health or safety measures proposed by suppliers, given that this is an area of expertise for other state agencies. Staff had noted that the state's Department of Public Health and Department of Commerce and Economic Opportunity have developed various protocols and guidelines (and in some cases local governments as well) and that suppliers are responsible for following such guidelines

Just Energy said that granting its request, "is in the public interest as allowing the Movant to conduct certain limited in-person solicitation as described herein will help the Illinois economy by putting people to work and in a position to support themselves and their families. As the Movant understands, Restore Illinois was intended to re-open the State’s economy and get Illinois residents back to work subject to a safe and reasonable time frame. The Movant believes that the subject relief requested here is consistent and Compliant with Restore Illinois and would in fact further its objectives."

Just Energy also noted that the Illinois Power Agency has eased similar restrictions on vendors of solar equipment and community solar subscriptions. Specifically, on June 4, 2020, after noting that the entire State of Illinois had entered into Phase 3 of the Restore Illinois program on May 29, 2020, the IPA issued guidance that in light of the progress made to date, passive forms of in-person marketing, including tabling at retail stores or events, would no longer be prohibited.

Just Energy said that in-person solicitation enjoys protections under the First and Fourteenth Amendments to the U.S. Constitution, and prohibiting the practice entirely is unconstitutional, citing Edenfield v. Fane, 507 U.S. 761; 113 S. Ct. 1792 (1993) (blanket direct ban imposed by state on in-person commercial solicitation by certified public accountants improperly prohibited commercial speech in violation of the First and Fourteenth Amendments to the U.S. Constitution)

AG Exceptions To Dec. 7 Proposed Interim Order

The Attorney General of the State of Illinois, the Citizens Utility Board (CUB), and Community Organizing for Family Issues (collectively, the "AG") filed exceptions to a December 7 proposed interim order that would allow the NRG Energy retail suppliers to resume in-person marketing at storefront establishments, subject to various conditions

The proposed interim order had been exclusively first reported by EnergyChoiceMatters.com (see details here).

Of note, the December 7 proposed interim order specifically addresses NRG's original motion from July 2020, which had been filed prior to a Staff recommendation to rescind the ICC's emergency order prohibiting in-person marketing, and prior to a November 2020 order from the Commission declining to rescind the order.

Citing the ICC's November decision which declined Staff's motion to rescind in its entirety the ICC's prior emergency order prohibiting in-person marketing, the AG argued that, "The Commission has already decided not to lift the in-person solicitation ban, and the Administrative Law Judge lacks authority to propose a contradictory order on the same issue, concerning the same parties, in the same docket. 220 ILCS 5/10-113(a), 83 Il Adm Code 200.820 (a)(1), 200.860, 200.870. The December 7, 2020 Proposed Interim Order must be rejected by the Commission."

The AG argued that, "The November 5, 2020 Notice of Commission Action was a final – not interim – resolution of the pending motions. The Proposed Interim Order should be rejected as not authorized by Commission rules or Illinois law."

"The Record supports a finding that all pending motions, including the Motion for Modification filed by Reliant and Green Mountain, were considered and disposed of by the Commission’s November 5, 2020, action in which it DENIED the ICC Staff Motion to Conditionally Dissolve the Emergency Order," the AG said

"[T]he record supports a finding that all pending motions, all arguments in support of and in opposition to the motions, and the Proposed Interim Order were before the Commission when the Commission DENIED the Motion to Conditionally Dissolve with the Emergency Order, and did so without qualification ... The second Proposed Interim Order issued in this Docket came after the Commission decided the same issue, that of modification of the Commission’s March 18, 2020, Emergency Order prohibiting in-person solicitation. The Motion for Modification filed by Reliant and Green Mountain was pending and discussed in the original proposed order. There is no authority for this second Proposed Interim Order, and thus the December 7, 2020 Proposed Interim Order must be rejected and stricken," the AG said

The AG further argued that, "In addition to being devoid of legal authority, the Proposed Interim Order should be rejected because this is not the time to allow in person marketing to recommence in any form."

"The IDPH has reported a steady and disturbing surge in confirmed COVID-19 cases in the last few weeks," the AG said

"[T]he State has adjusted COVID-related responses due to COVID-19 case upticks using actions -- 'mitigation measures' -- that were not contemplated in the original Restore Illinois Plan. Likewise, the State’s Restore Illinois plan now divides Illinois into 11 regions rather than the five established in the original Restore Illinois plan and referenced in the Large and Small Utility stipulations approved by the Commission for purposes of establishing the end of the moratorium period," the AG said

The AG proposed that the ICC issue a Notice of Action concerning the Dec. 7 proposed interim order stating that, "Notice is hereby given that the Commission in conference REJECTED the December 7, 2020, Proposed Interim Order and DECLINED to enter the same. The Commissions finds that all pending motions were DENIED on November 5, 2020 when the Commission issued its Notice of Commission Action that DENIED the Illinois Commerce Commission’s Motion to Conditionally Dissolve the Commission’s, March 18, 2020 Emergency Order."

In contrast, Staff of the ICC, while filing limited exceptions concerning discrete statements in the Dec. 7 proposed interim order, did not object to the general relief that would be provided to NRG under the proposed interim order

Docket 20-0310 et al.

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