State Moves To Allow By-Appointment, Non-residential In-Person Marketing To Resume

At the direction of the Illinois Commerce Commission, ICC Staff have filed a motion to allow all retail electric and natural gas suppliers to conduct both in-store solicitations and appointment-based non-residential customer solicitations

Several suppliers have already received individual authority to resume such marketing activities, and the ICC, in granting the most recent requests, directed Staff to bring a motion to apply such relief generally to all suppliers

Staff recommended that any ARES (or AGS) wishing to conduct by-appointment in-person solicitations of non-residential customers should be subject to the following conditions [quoting the electric/ARES proposal, same provisions proposed for gas/AGSs]:

(a) Any ARES conducting by-appointment in-person solicitations of nonresidential customers shall comply with not only the requirements of the Illinois Department of Public Health and the Illinois Department of Commerce and Economic Opportunity, as well as those of any municipality or county in which it conducts in-person solicitations. ARES will be required to keep themselves fully advised of such governmental and other requirements and best practices. No ARES will be held harmless for failure to comply with all such requirements by the Commission’s granting of this Motion;

(b) Any ARES conducting by-appointment in-person solicitations of non-residential customers shall monitor the actions of its sales agents and any third-party vendors to make certain that agents are healthy and that all requirements, including the Commission’s requirements in 83 Ill. Adm. Code 412, are being met; and

(c) the relief granted by the Commission should only apply to those areas of the State that remain in Phase 4 status, and if the State as a whole or any area reverts to Phase 3 or lower, or any municipality determines that Phase 4 or similar retail guidelines cannot be maintained consistent with public safety, the ARES must immediately cease in-store solicitations [sic, presumably meant to be by-appointment solicitations].

Consistent with prior orders granting relief to individual suppliers, Staff proposed that in-store marketing be subject to the following (again, similar proposed provisions for AGSs):

• Any ARES conducting in-store solicitations shall comply with not only the requirements of the Illinois Department of Public Health and the Illinois Department of Commerce and Economic Opportunity, and also with the requirements of their retail partners and their own safety requirements, as well as those of any municipality or county in which it conducts in-person solicitations. ARES will be required to keep themselves fully advised of such governmental and other requirements and best practices. No ARES will be held harmless for failure to comply with all such requirements by the Commission’s granting of this Motion;

• Any ARES conducting in-store solicitations shall monitor the actions of its sales agents and any third-party vendors to make certain that agents are healthy and that all requirements, including the Commission’s requirements in 83 Ill. Adm. Code 412, are being met; and

• the relief granted by the Commission should only apply to those areas of the State that remain in Phase 4 status, and if the State as a whole or any area reverts to Phase 3 or lower, or any municipality determines that Phase 4 or similar retail guidelines cannot be maintained consistent with public safety, the ARES must immediately cease in-store solicitations

Staff also recommended that the Commission make clear that the relief granted is strictly limited to permitting suppliers to conduct (1) in-person solicitations in retail establishments with which they have partnerships or arrangements; and (2) non-residential appointment based in-person solicitation, and that all other forms of in-person solicitation remain prohibited.

"Relief should be strictly limited to that which the Commission has requested that Staff seek, and the Order should specifically state that door-to-door solicitations, in particular, remain prohibited until further Order of the Commission," Staff said

Staff said, "In making this Motion, Staff notes -- as it has in the past, as[sic] should come as no surprise to any ARES [or AGS] -- that ARES management and oversight of the conduct of marketing agents, and especially of non-employee agents, is often in Staff’s view markedly deficient. Phase 4 guidelines for any significant interpersonal contact appear to Staff to require close monitoring by employers of the health status, and social distancing and sanitizing / disinfecting practices of employees and agents. Accordingly, if any ARES intends to begin conducting either in-store solicitations in any open retail establishment with which it has an agreement to do so, or non-residential in-person solicitations by appointment, it should be expected and prepared to exercise careful, responsible and active oversight of all 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 ARES want to conduct in-person solicitations of any sort in Illinois during Phase 4, the ARES, not third-party vendors or retail partners - 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."

Docket No. 20-0310, 20-0311