Section 454.10  Purpose

 

The purpose of this Part is to adopt licensing and code of conduct requirements pursuant to Section 16-115C of the Public Utilities Act.

 

Section 454.20  Definitions

 

"ABC" means agents, brokers, and consultants engaged in the procurement or sale of retail electricity supply for third parties and has the same meaning as defined in Section 16-115C(b) of the Public Utilities Act [220 ILCS 5/16-115C(b)].

 

"Act" means the Public Utilities Act [220 ILCS 5].

 

"Aggregate billing demand" means the total of the highest monthly billed demand of each of the retail customer's affiliated electric accounts during the past calendar year.

 

"Alternative retail electric supplier" or "ARES" has the same meaning as in Section 16-102 of the Act [220 ILCS 5/16-102].

 

"Applicant" means a person or entity that seeks a license from the Illinois Commerce Commission pursuant to the Section 16-115C of the Act.

 

"Attempts to procure" means a third-party individual or entity that takes a substantial step to Procure electric power and energy, such as but not limited to preparing solicitations, notifying potential bidders of the solicitation, or determining the results of a solicitation; except, it shall not include an individual or entity providing professional services incidental to the procurement of retail service, such as but not limited to legal, accounting or engineering services.

 

"Attempts to sell" means a third-party individual or entity that takes a substantial step to sell electric power and energy to end user customers, such as but not limited to soliciting customers, making offers or preparing contracts; except, it shall not include an individual or entity providing professional services incidental to the sale of retail service, such as but not limited to legal, accounting or engineering services.

 

"Commission" means the Illinois Commerce Commission.

 

"Licensee" means an applicant that has applied for and received a license under this Part.

 

"License bond" or "permit bond" means an obligation of a surety to pay the monies that the licensee owes the State of Illinois for violations of the duties and obligations imposed on it as an ABC.

 

"Procure" means purchasing or entering into a contract to purchase the services of a RES on behalf of a retail electric customer.

 

"Qualifying surety" means a surety or insurer that is authorized by the U.S. Department of the Treasury pursuant to 31 USC 9305. A qualifying surety or insurer may not underwrite more than the amount specified by the U.S. Department of Treasury on a single bond. (Department of the Treasury's Listing of Approved Sureties (Department Circular 570; http://www.fms.treas.gov/c570/c570.html))

 

"Retail customer", as used in this Part, has the same definition as in Section 16-102 of the Act.

 

"Retail Electric Supplier" or "RES" means an ARES or an electric utility providing electric power and energy to retail customers outside the utility's service area pursuant to Section 16-116 of the Act.

 

Section 454.30  Applicability

 

a)         The requirements of this Section shall apply to each ABC that:

 

1)         sells or attempts to sell electric power and energy on behalf of a RES; and/or

 

2)         procures or attempts to procure electric power and energy on behalf of a retail customer.

 

b)         The requirements of this Section shall not apply to the following:

 

1)         The Illinois Power Agency or any of its employees;

 

2)         Any RES offering retail electric service on its own behalf;

 

3)         Any person or entity acting exclusively on behalf of a single RES on condition that exclusivity is disclosed to the customer;

 

4)         Any person or entity representing a municipal power agency, as defined in Section 11-119.1-3 of the Illinois Municipal Code [65 ILCS 5/11-119.1-3];

 

5)         Any person or entity that attempts to procure retail electric service on behalf of, or sell retail electric service to, a third party that has an aggregate billing demand of all of its affiliated electric service accounts in Illinois of greater than 1,500 kW;

 

6)         A retail customer that operates or manages, either directly or indirectly, any facilities, equipment or property used or contemplated to be used to distribute electric power or energy if that retail customer is a political subdivision or public institution of higher education of this State; or

 

7)         Any corporation, company, limited liability company, association, joint-stock company or association, firm, partnership or individual, or their lessees, trusts or receivers appointed by any court whatsoever that are owned or controlled by the political subdivision, or public institution of higher education, or are operated by any of its lessees or operating agents.

 

(Source:  Amended at 35 Ill. Reg. 17602, effective November 1, 2011)

 

Section 454.40  Required Application Filings and Procedures

 

a)         The Commission shall issue an order granting or denying an application filed under this Section within 90 days (or 180 days if extended by the assigned Administrative Law Judge) after the date on which a complete application has been filed. The assigned Administrative Law Judge may extend the time for considering an application filed under this Section by up to 90 days and can schedule a hearing on the application if:

 

1)         A party to the application proceeding has formally requested that the commission hold hearings in a pleading that contains a verified prima  facie showing that one or more of the allegations or certifications in the application is false or misleading; or

 

2)         Other facts or circumstances exist that will necessitate additional time or evidence in order to determine whether a license should be issued.

 

b)         All applications for licensing under this Part shall be verified as required by Section 200.130 of the Commission's "Rules of Practice" (83 Ill. Adm. Code 200.130).

 

c)         The applicant shall provide the following:

 

1)         Description of the applicant's business;

 

2)         A certification that the applicant is licensed to do business in the State of Illinois and is in compliance with all other applicable laws, regulations and Commission rules and orders; and

 

3)         The name, address, telephone number, any facsimile number and any e-mail address of the agent registered with the Illinois Secretary of State. This information shall be kept current and any change regarding the licensee shall be reported within 15 days after the change occurs. The required information shall be filed with the Chief Clerk of the Commission at its Springfield office.

 

d)         Itemized Filing Requirements; the application for licensing under this Part shall include:

 

1)         a statement in support of application, supporting documents, and schedules containing information showing that the applicant meets the requirements of Section 16-115C of the Act;

 

2)         a certification that the applicant will comply with all terms and conditions required by Section 16-115C of the Act; and

 

3)         a certification that any person who acts on behalf of the entity will comply with all Sections of this Part applicable to the function or functions to be performed.

 

e)         Contents of documents shall be consistent with Subpart B of the Commission's Rules of Practice (83 Ill. Adm. Code 200)

 

Section 454.50  General Licensing Requirements

 

An ABC shall remain in compliance with the provisions of the Act and this Part.

 

Section 454.60  Managerial Licensing Requirements

 

a)         An applicant shall be deemed to possess sufficient managerial capabilities to provide agency, brokering or consulting services if the applicant can demonstrate that it has had at least one year of management experience with a business enterprise.

 

b)         The applicant shall include in its application an exhibit containing occupational background information on the persons who are being used to satisfy the requirements of this Section.

 

c)         The applicant shall include in its application an exhibit containing a corporate organizational chart and indicating the position of persons indicated in subsection (a) of this Section.

 

Section 454.70  Technical Licensing Requirements

 

a)         An applicant shall be deemed to possess sufficient technical capabilities to provide agency, brokering or consulting services if the applicant can demonstrate that it has had experience in the electric industry of at least one year.

 

b)         The applicant shall include in its application an exhibit containing occupational background information on the persons who are being used to satisfy the requirements of this Section.

 

Section 454.80  Financial Licensing Requirements

 

a)         The applicant shall execute and maintain a license or permit bond issued by a qualifying surety or insurance company authorized to transact business in the State of Illinois in favor of the People of the State of Illinois. The amount of the bond shall equal $5,000. The bond shall be conditioned upon the full and faithful performance of all duties and obligations of the applicant as an ABC and shall be valid for a period of not less than one year. The cost of the bond shall be paid by the applicant. The applicant shall file this bond as part of its application for certification.

 

b)         In the event that a license or permit bond is cancelled, expires or is drawn upon, the ABC shall execute and maintain an additional or replacement bond such that the cumulative value of all outstanding bonds never falls below the amount required in subsection (a) of this Section. The ABC shall file a copy of the additional or replacement bond with the Chief Clerk of the Commission and provide a copy to the Manager of the Financial Analysis Division or his or her successor at least 15 days in advance of the effective date of the bond. The filing shall include a cover letter that explains the purpose of the filing and shall be identified by the name of the ABC as it appears in the most recent Commission order granting the ABC certification.

 

c)         In the event that a license or permit bond is modified, the ABC shall file a copy of the modified bond with the Chief Clerk of the Commission and provide a copy of that bond to the Manager of the Financial Analysis Division or his or her successor at least 15 days in advance of the effective date of the modification. The filing shall include a cover letter that explains the purpose of the filing and shall be identified by the name of the ABC as it appears in the most recent Commission order granting the ABC certification.

 

Section 454.90  Code of Conduct

 

Any person or entity required to be licensed pursuant to this Part shall:

 

a)         Disclose in plain language in writing the nature of the services offered by the ABC;

 

b)         Prior to the customer signing a contract, disclose that they are not employed by the electric utility operating in the applicable service territory;

 

c)         Disclose in plain language in writing to all persons it solicits:

 

1)         before July 1, 2011, the total anticipated remuneration to be paid to it by any third party over the period of the proposed underlying customer contract and

 

2)         on or after July 1, 2011, the total price per kilowatt-hour, and the total anticipated cost, inclusive of all fees or commissions received by the licensee, to be paid by the customer over the period of the proposed underlying customer contract.  In the event a person or entity required to be licensed pursuant to this Part uses an electric supply usage estimate for a particular customer, the person or entity required to be licensed pursuant to this Part must use the same electric supply usage estimate for all service offers it presents to that particular customer;

 

d)        Any disclosure required by subsection (c) must be made prior to entering into the contract and signed by the customer;

 

e)         Disclose if applicable, to all customers, prior to the customer signing a contract the fact that they will be receiving compensation from the supplier;

 

f)         Not hold itself out as independent or unaffiliated with any RES, or both, or use words calculated to give that impression, unless the person or entity offering service under Section 16-115C of the Act has no contractual relationship with any RES or its affiliates regarding retail electric service in Illinois;

 

g)         Not utilize false, misleading, materially inaccurate, defamatory or otherwise deceptive language or materials in the soliciting or providing of its services;

 

h)         Maintain copies of all marketing materials disseminated to third parties for a period of not less than three years;

 

i)          Maintain copies of all disclosure statements required in subsections (a) and (b) for a period of not less than three years;

 

j)          Not present electricity pricing information in a manner that favors one supplier over another, unless a valid pricing comparison is made utilizing all relevant costs and terms; and

 

k)         Comply with the requirements of Sections 2EE, 2FF, 2GG and 2HH of the Consumer Fraud and Deceptive Business Practices Act [815 ILCS 505/2EE, 2FF, 2GG and 2HH].

 

(Source:  Amended at 35 Ill. Reg. 17602, effective November 1, 2011)

 

Section 454.100  Customer Records and Information

 

a)         The licensee shall ensure that authorizations received from customers, and all other applicable records, are retained for a period of not less than three calendar years after the calendar year in which they were created.

 

b)         The licensee shall preserve the confidentiality of its customers' data.

 

Section 454.110  Reporting Requirements

 

a)         By March 31 of each year, each licensee shall submit a report identified with the name of the ABC as it appears in the most recent Commission order granting the ABC a license and shall be titled "ABC Annual (year) Recertification Report under 83 Ill. Adm. Code 454". All reports required under this Section shall be under oath and shall be filed with the Chief Clerk of the Commission with copies to the Director of the Commission's Energy Division, the Director of the Financial Analysis Division, and the Director of the Consumer Services Division.

 

b)         The annual report required by subsection (a) of this Section shall list each RES the licensee had any contractual relationship with during the prior calendar year, and shall contain the following information:

 

1)         The type of contractual relationship (such as subcontractor, affiliate, commission compensated);

 

2)         The number of non-residential customers to which the licensee sold retail electric supply on behalf of each RES;

 

3)         The number of residential customers to whom the licensee sold retail electric supply on behalf of each RES;

 

4)         The number of non-residential customers for which the licensee procured retail electric service on behalf of the customer; and

 

5)         The number of residential customers on whose behalf the licensee procured retail electric service.

 

c)         The verified report under this Section shall not contain customer identifying information.

 

d)         A public redacted version of the verified report may be submitted to the Commission along with a proprietary version. The public redacted version may redact from the verified report the name or names of every certified electricity supplier contained in the report to protect against disclosure of competitively sensitive market share information. The information shall be afforded proprietary treatment for two years after the date of the filing of the verified report.

 

e)         The licensee shall file with its annual verified report a verified statement of any changes to the original licensure qualifications and notice of continuing compliance with all requirements.

 

(Source:  Amended at 35 Ill. Reg. 17602, effective November 1, 2011)

 

Section 454.120  Erroneous or Defective Reports

 

When any report is erroneous or defective or appears to the Commission to be erroneous or defective, the Commission shall notify the ABC to amend the report within 30 days and correct deficiencies or errors.

 

Section 454.130  Complaint Procedures

 

Complaints shall be filed in conformance with 83 Ill. Adm. Code 200.160, 200.170 and 280.170.  The complaint shall comply with the Commission's Rules of Practice (83 Ill. Adm. Code 200).

 

Section 454.140  Commission Oversight

 

a)         Upon complaint or on the Commission's own motion, the Commission may conduct an investigation of a licensee's actions under any Section of this Part. The Commission's findings of a violation of this Section after notice and hearing shall result in a progressive disciplinary scale as specified in Section 16-115C(g) of the Act.

 

b)         For a first violation, the Commission may, in its discretion, suspend the license of the licensee so disciplined for a period of no less than one month. In determining whether to suspend the license of the licensee and the length of any suspension to be imposed the Commission shall consider whether the violation was deliberate or inadvertent, the harm or potential for harm to customers, and the effect or potential effect on competition. For a second violation within a 5-year period, the Commission shall suspend the license of the disciplined licensee for a period of not less than 6 months. For a third or subsequent violation within a 5-year period, the Commission shall suspend the license of the disciplined licensee for a period of not less than 2 years. [220 ILCS 5/16-115C(g)]

 

(Source:  Amended at 35 Ill. Reg. 17602, effective November 1, 2011)