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NRG Retail Suppliers: Prohibition On In-Store Marketing Harming Small Businesses, Individual Agents

NRG Reports No COVID Spread Over Tens Of Thousands Of Shift Hours For Areas Allowing In-Store Sales

December 21, 2020

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Copyright 2010-20
Reporting by Paul Ring •

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Various retail suppliers have responded to the opposition from the Attorney General of the State of Illinois and Citizens Utility Board to various proposed resumptions of in-person marketing, such as the resumption of in-store marketing as sought by Reliant Energy Northeast and Green Mountain Energy Company (NRG suppliers)

As first reported by, the AG and CUB said that the ICC cannot grant various motions for the resumption of various forms of in-person marketing, because a November Commission ruling on a Staff motion also served to deny pending motions from retail suppliers

However, retail suppliers argued that the AG and CUB are in error in this respect

"The Commission did not act on Reliant/Green Mountain’s Motion on November 5, 2020, nor did the Commission issue an appealable Order," the NRG suppliers said

"In an apparent attempt to circumvent the Retail Electric Competition Act of 2006 [220 ILCS 5/16-101 et seq.] as well as to distract the Commission from the merits of the Joint Movants’ Motion for Modification, AG/CUB/COFU make the preposterous claim that the Commission does not have the authority to grant the Motion because it has already ruled on that Motion. However, that argument is based on a string of misrepresentations of the record in this proceeding, misinterpretations of the Public Utilities Act and the Commission’s rules, and a misstatement of an appellate court case," the NRG suppliers alleged

The NRG suppliers noted that the AB/CUB "quote the entire sum and substance of the Commission document denying Staff’s Motion to conditionally dissolve the moratorium, which contradicts their claim." The NRG suppliers noted that the entire sum and substance of the Commission's issuance stated that, "Notice is hereby given that the Commission in conference on November 5, 2020, DENIED staff of the Illinois Commerce Commission’s Motion to Conditionally Dissolve the Commission’s March 18, 2020 Emergency Order filed on September 29, 2020."

"It is not possible to argue with a straight face that the Commission denied Joint Movants’ Motion for Modification. Clearly, the only Motion that was denied by the Commission on November 5, 2020 was its Staff’s motion which, again, would have permitted in-person solicitation of any form, in contrast to Joint Movants’ motion which requested the ability to conduct limited in-person solicitation in retail establishments. Reliant/Green Mountain’s Motion is a separate pleading filed with the Commission and distinct in substance from Staff’s Motion to conditionally dissolve the moratorium on in-person solicitation. As such, Reliant/Green Mountain, as a matter of due process, are entitled to having the Commission act on its Motion," the NRG suppliers said

In separately filed comments, the Vistra retail suppliers Interstate Gas Supply quoted the transcript of the November 5 ICC meeting in which Chair Zalewski stated, because the Staff motion to dissolve the ICC's prior emergency order on in-person marketing, "we will thus not be voting on the interim order."

"The transcript clearly demonstrates three items: (1) the Commission denied Staff’s Motion to Conditionally Dissolve, (2) no other motions were before the Commission or decided, and (3) the Proposed Interim Order dated October 16, 2020 that would have granted Staff’s Motion to Conditionally Dissolve and dispose of all other motions as moot was not adopted," Vistra and IGS said

The NRG suppliers further said that AG/CUB, "offer no measurable evidence that allowing Reliant/Green Mountain to resume in-store marketing with its retail partners poses a unique public health risk."

"Moreover, other vendors are allowed to operate in the retail establishments in which Joint Movants’ retail partners have requested the Joint Movants to resume solicitation. It simply makes no sense that the public can buy cell phones, perfume, coffee, cookies and any other product or service except for retail electric service," the NRG suppliers said

"Further, data collected by Reliant/Green Mountain support the effectiveness of the companies’ strict compliance with Center for Disease Control, state and local public health requirements and guidelines, in addition to the companies’ contactless sales process (described in detail in the Joint Movants’ Motion), in states with significant COVID-19 rates of infection. Reliant/Green Mountain have hundreds of personnel working in the field, including retail locations, and the companies have had no COVID-19 spread over the course of many tens of thousands of shift hours. Reliant/Green Mountain’s pro-active screening measures prevented two people from going on shift by giving them an early indication of illness which prevented further spread in their communities," the NRG suppliers said

"The continuing moratorium on in-store marketing, while other businesses are being allowed to conduct similar sales activity in retail establishments, harms small independent businesses who make up the Joint Movants sales partners, as well as sales agents trying to make a living. Approximately 75 percent of the sales agents employed by Reliant/Green Mountain’s Illinois sales partners are minorities," the NRG suppliers said

Reliant/Green Mountain stressed that they seek to be allowed to participate in the re-opening of commerce in Illinois only within the phases and guidelines of the Governor’s Restore Illinois.

In a reply brief, the AG and CUB reiterated their prior arguments and opposition to the resumption of any in-person marketing

In a separate brief, AG and CUB opposed a motion from the Vistra retail suppliers to resume in-person marketing to non-residential customers, in those area of the state in Phase 4

The AG and CUB again said that the ICC already disposes of Vistra's motion

"The Vistra Retailers’ Motion to Allow Limited In-Person Solicitation was evaluated and rejected by the Commission on November 5, 2020 when it neither dissolved nor modified the Emergency Orders," AG and CUB said

The AG and CUB further said, "In-person solicitation, regardless of whether limited to business or non-business customers, would present an unnecessary and potentially dangerous risk of transmission of COVID-19. The Commission should continue to reject attempts to diminish the March 18, 2020 Emergency Orders and deny the Vistra Retailers’ Joint Verified Motion to File First Amended Draft Proposed Interim Orders Instanter filed on December 4, 2020, and deny, again, the Vista Retailers Verified Motion to Allow Limited In-Person Solicitation that was filed July 29, 2020. The Vistra Retailers may engage in other forms of outreach and solicitation so long as it does not involve in-person contact."

ICC Docket No. 20-0310 et al.

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