Illinois Adopts First Notice Order to Set Government Aggregation Rules, Including Minimum Opt-Out Period

The Illinois Commerce Commission has approved a first notice order to adopt rules concerning procedures governing opt-in and opt-out municipal aggregations. The rules will now be sent to the Secretary of State.

Due to the ICC's limited authority over governmental aggregators, much of the rules are only triggered if the governmental aggregation's supplier takes on certain responsibilities, such as sending the opt-out notice, rather than the governmental aggregator performing these actions itself.

Notably, the rules provide that for opt-out aggregations, if the aggregation supplier is responsible for sending the opt-out notice, the customer shall have 21 calendar days after the date of the postmark for the opt-out notice to opt-out. The opt-out notice sent by an aggregation supplier must also list the specific date for the opt-out deadline.

Aggregation suppliers sending the opt-out notice must provide two methods for customers to exercise an opt-out -- by returning a postage paid postcard or similar notice, and by one of the following: a) telephone; b) e-mail; or c) aggregation supplier or governmental aggregator website.

The ICC declined to require government aggregations to require an additional, no-fee opt-out period after a set period of time (such as 2 years), because such proposals, "overreach[] into those areas left to the discretion of the Governmental Aggregator."

Customers already shopping with a retail electric supplier will receive a notice about the governmental aggregation; however, if it is sent by the aggregation supplier rather than the governmental aggregator, it shall be distinct from the opt-out notice. Such notice to shopping customers must disclose any early termination fee for the aggregation, and may not contain a comparison of the proposed aggregation rate to the customer's current retail electric supplier's rate.

If an aggregation supplier receives a request from a shopping customer to join the aggregation program, the aggregation supplier shall inform the customer that they may be subject to fees for early termination pursuant to their current retail supply contract.

To enroll a currently shopping customer who wishes to join an opt-out aggregation, the aggregation supplier must verify the selection in the manner provided by Sections 505/2EE(a)-(c) of the Consumer Fraud and Deceptive Business Practices Act (the same process for non-aggregation enrollments).

Additionally, for any customer wishing to join the aggregation after the opt-out period, the aggregation supplier must comply with 505/2EE of the Consumer Fraud and Deceptive Business Practices Act.

The rules provide that governmental aggregators may only receive customer-specific information after an ordinance has been adopted authorizing an opt-in aggregation program, or an ordinance has been adopted and a referendum passed authorizing an opt-out aggregation program.

As intimated above, governmental aggregators will receive a customer list containing both default service customers (including those on hourly pricing), and customers who are on competitive retail supply.

Aggregation suppliers shall be required to report to the Commission, for public posting, the rate for the aggregation and any early termination fee, and "payments, inducements or donations, including civic contributions and consulting fees made by the Aggregation Supplier, either directly or indirectly, to the Governmental Aggregator."

Docket 12-0456