Illinois Official Reports

Appellate Court

Securus Technologies, Inc. v. Illinois Commerce Comm’n,

2014 IL App (1st) 131716

Appellate Court 

Caption

SECURUS TECHNOLOGIES, INC., Petitioner, v. ILLINOIS 

COMMERCE COMMISSION and CONSOLIDATED COMMUNICATIONS ENTERPRISE SERVICES, INC., d/b/a Consolidated 

Communications Public Services, Respondents.

District & No. First District, Sixth Division

Docket No. 1-13-1716

Filed May 16, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

The orders entered by the Illinois Commerce Commission granting 

respondent communication company’s petition for a declaratory 

ruling concerning the special telephone calling services provided for 

inmates of corrections facilities operated by the Department of 

Corrections were vacated due to the Commission’s lack of 

jurisdiction, since respondent’s petition was related to its loss of a bid 

for the contract to provide the services, but respondent was not an 

“affected person” for purposes of being entitled to a declaratory 

ruling, respondent failed to state that an actual controversy or 

uncertainty existed, especially when the award of the contract was 

moot, and the orders were outside the Commission’s authority under 

the Administrative Procedure Act and its implementing regulations.

Decision Under 

Review

Petition for review of orders of Illinois Commerce Commission, 

No. 12-0413.

Judgment Vacated.
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Counsel on

Appeal

Michael J. Hayes and Dawn L. Johnson, both of K&L Gates LLP, of 

Chicago, for petitioner.

John E. Stevenson, of Freeborn & Peters LLP, of Springfield, for 

respondent Illinois Commerce Commission.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Presiding Justice Rochford and Justice Lampkin concurred in the 

judgment and opinion.

OPINION

¶ 1 Petitioner Securus Technologies, Inc. (Securus), directly appeals to this court from orders 

of the respondent Illinois Commerce Commission (Commission) entered upon a verified 

petition for a declaratory ruling filed with the Commission by respondent Consolidated 

Communications Enterprise Services, Inc. (Consolidated),1as well as an order denying 

rehearing on the matter. Securus argues: (1) the Commission lacked jurisdiction to enter the 

orders; (2) the Commission’s orders violate Illinois law; (3) the Commission’s procedures 

prior to entry of the orders violated Sercurus’s right to due process of law; and (4) the 

Commission’s findings were against the manifest weight of the evidence. The Commission 

not only takes the contrary position to all of the arguments raised by Securus, but also argues 

this court lacks jurisdiction to hear this appeal. For the following reasons, we conclude this 

court has jurisdiction to hear the appeal, the Commission lacked jurisdiction to enter the 

orders at issue, and the Commission’s orders must be vacated.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses the following facts. On July 3, 2012, Consolidated filed a 

verified petition for declaratory ruling from the Commission, pursuant to section 5-150 of the 

Illinois Administrative Procedure Act (5 ILCS 100/5-150 (West 2012)) and section 

200.220(a)(1) of the Commission’s Rules of Practice (83 Ill. Adm. Code 200.220(a)(1)

(1996)). In the petition, Consolidated identified itself as a corporation engaged in the 

provision of telecommunications services and other telecommunications-related businesses in 

Illinois. The petition alleged Consolidated “provide[d] telephone calling services accessible 

by inmates of corrections facilities operated by the Illinois Department of Corrections 

(‘IDOC’), so that inmates may communicate with members of the general public.” 

Consolidated provided these services through equipment placed in the restricted areas of the 

IDOC facilities allowing inmates to place operator-assisted collect calls. The charges for the 

 

1Consolidated is not a party to this appeal.
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telephone calls are billed to the members of the public who have accepted responsibility to 

pay for the calls. IDOC allows only one such service provider at each corrections facility.

¶ 4 Consolidated sought a declaratory ruling from the Commission “as to whether a person or 

entity, such as Consolidated,” is providing “operator services” and thus is an “operator 

services provider[ ]” under section 13-901 of the Public Utilities Act (220 ILCS 5/13-901 

(West 2012)) and section 770.10 of the Commission’s regulations (83 Ill. Adm. Code 770.10 

(1994)). Consolidated also sought a declaratory ruling that such operator services providers 

were thus subject to the requirements of not only section 13-901 of the Public Utilities Act, 

but also sections 770.20(a) and 770.40(c) and (e) of the Commission’s regulations (83 Ill. 

Adm. Code 770.20(a), 770.40(c), (e) (1994)), which set standards of service and maximum 

rates for telephone calls.

¶ 5 Consolidated asserted in its petition that the request for a declaratory ruling was 

prompted by an actual controversy. In support of the petition’s assertion that an actual 

controversy existed, Consolidated alleged it had recently submitted a bid to the Illinois 

Department of Central Management Services (CMS) on a contract to provide services 

described in the petition to certain IDOC corrections facilities. The contract solicitation 

required bidders to submit the rates they would charge and the percent of revenues they 

would pay to IDOC as a commission. Consolidated, believing itself to be an operator services 

provider, specified it would charge no more than the maximum rates established by sections 

770.40(c) and (e) of the Commission’s regulations. CMS awarded the contract to a bidder 

(the record establishes this bidder was Securus) that represented it would charge rates above 

those maximum rates. On May 31, 2012, Consolidated protested the contract award. The 

chief procurement officer of CMS (CPO) denied the protest, based on his review of prior 

orders issued by the Commission and a review of the Commission’s regulations.

¶ 6 Consolidated further asserted in the petition that Consolidated needed to know “whether, 

in the future, it would be acting in violation of a Commission regulation if it were to charge 

higher rates than those established pursuant to sections 770.40(c) and (e) to members of the 

public in connection with the provision of the inmate telephone calling services described” in 

the petition.

¶ 7 Consolidated attached to its petition a copy of the CPO’s June 25, 2012, decision 

rejecting Consolidated’s protest as to the contract awarded to Securus. The CPO determined 

the key inquiry is whether the services at issue were within the Commission’s regulatory 

jurisdiction and subject to the restrictions of section 770.40, as the award would be required 

to be rescinded if the services were not exempt. The CPO relied on two prior orders issued by 

the Commission, Inmate Communications Corp., Ill. Com. Comm’n No. 96-0131 (June 5, 

1996) (Inmate Communications), and Infinity Networks, Inc., Ill. Com. Comm’n No. 05-0429 

(Oct. 19, 2005) (Infinity Networks), in which the Commission ruled: (1) telecommunications 

providers that do not locate pay telephones in public areas are not public utilities and are not 

subject to the Commission’s regulation with respect to such services; (2) prisoners are not 

members of the public and thus pay telephones for inmate-only use are not a public utility or 

telecommunications carrier under section 13-202 of the Public Utilities Act; and (3) operator 

services associated with the provision on nonpublic telephones in correctional institutions 

were exempt from the operator services requirements of Part 770 of Title 83 of the Illinois 

Administrative Code.
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¶ 8 The CPO noted the only opposing material Consolidated presented was an email from 

Kathy Stewart, who was employed by the Commission as an “Engineering Analyst IV.” The 

CPO observed he was not provided the question Consolidated presented to Stewart or any 

explanation for why Stewart was requested to provide a legal opinion. This “conundrum”

prompted the CPO to contact the Commission’s general counsel’s office, which replied the 

opinion of any single employee was not the opinion of the Commission, and explained there 

is a formal mechanism called a declaratory ruling which allows the Commission to issue 

opinions regarding the applicability of its rules. Thus, the CPO concluded the Commission’s 

prior orders were determinative and the services at issue were not subject to regulation.

¶ 9 On July 30, 2012, Securus transmitted a letter regarding Consolidated’s petition for a 

declaratory ruling to an administrative law judge (ALJ) at the Commission. The letter 

requested the summary dismissal of Consolidated’s petition, arguing: (1) after the CPO 

rejected Consolidated’s protest of the contract award, Consolidated filed a lawsuit in the 

circuit court of Sangamon County regarding the contract bid dispute, which Consolidated 

failed to disclose in its verified petition; (2) the Commission had already ruled upon the issue 

raised in Consolidated’s petition; and (3) Consolidated was not an “affected person” with 

standing to request a declaratory ruling from the Commission. Securus attached a copy of 

Consolidated’s July 3, 2012, complaint filed in the circuit court against CMS, the CPO, 

Securus and other parties, challenging the award of the contract to Securus. The ALJ 

recorded the letter as an ex parte communication from an interested party.

¶ 10 On July 31, 2012, during a prehearing conference on Consolidated’s petition, the ALJ 

informed counsel for Securus they would be required to file a petition to intervene if they 

wished to participate in the proceedings on Consolidated’s petition.

¶ 11 On August 30, 2012, Securus filed a verified petition to intervene and be treated as a 

party in the proceedings on Consolidated’s petition for a declaratory ruling. Securus asserted 

its interest was based on its then-ongoing negotiation of the terms of the contract Securus 

was awarded to provide inmate pay telephone services at IDOC facilities. Securus proffered 

appearances of counsel and attached a copy of its July 30, 2012, letter to the ALJ. On 

September 14, 2012, the ALJ granted Securus’s petition to intervene.

¶ 12 On August 31, 2012, the Commission’s staff filed a response in support of 

Consolidated’s verified petition for a declaratory ruling. The response, prepared by Stewart, 

stated it would not respond directly to the points raised by Securus, because Securus had yet 

to file a petition to intervene when the response was drafted. The response, however, asserted 

Consolidated’s litigation of the contract bid in the circuit court was immaterial to the issues 

raised by the petition. The Commission’s staff also argued the Commission should revisit its 

prior decision in Inmate Communications, noting: (1) the Commission’s orders are not 

res judicata on the Commission; (2) the relevant portion of the order was dicta; and (3) the 

Commission staff’s opinion was that the services at issue should be subject to regulation to 

protect members of the general public who pay for telephone calls from inmates. The 

Commission’s staff further asserted Consolidated was an “affected person” insofar as the rate 

regulation affected not only Consolidated’s past contract bid, but also future bids.

¶ 13 On September 7, 2012, Consolidated filed a verified reply in support of its verified 

petition for a declaratory ruling. Responding to Securus, Consolidated observed it had filed 

an amended complaint in the circuit court alleging numerous flaws in the bid proposal 

submitted by Securus. Consolidated asserted the controversy prompting its petition was the 
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award of the contract to Securus, which Consolidated disclosed in its verified petition.

Consolidated also asserted its litigation was not relevant to the Commission’s resolution of 

the question in the petition for a declaratory ruling. Consolidated further argued the 

Commission should revisit its prior decisions in Inmate Communications and Infinity 

Networks. Consolidated additionally argued it was an “affected person” for the purpose of 

seeking a declaratory ruling because the contract award was in litigation and not final, and as 

the CPO indicated in his decision, the award must be rescinded if the rate regulations applied 

to the services at issue in the contract. Consolidated reiterated it required further guidance 

regarding whether it would be violating a Commission regulation in the future if it charged 

rates higher than those established by sections 770.40(c) and (e) of the Commission’s 

regulations. In addition, Consolidated asserted Securus had failed to challenge any of the 

underlying facts or policy considerations asserted by Consolidated and the Commission’s 

staff in the proceedings.

¶ 14 On October 23, 2012, the ALJ issued a proposed order recommending Consolidated’s 

petition for a declaratory ruling be granted. Securus filed a motion requesting briefing of 

exceptions to the proposed order be deferred, due to outstanding discovery requests. On 

November 13, 2012, the ALJ denied Securus’s motion to defer briefing. Securus sought 

interlocutory review of the ALJ’s decision. On December 19, 2012, the Commission denied 

interlocutory review.

¶ 15 On November 16, 2012, Securus filed its brief of exceptions to the ALJ’s proposed order.

Securus again argued Consolidated is not an “affected person” entitled to request a 

declaratory ruling. Securus observed Consolidated’s lawsuit was dismissed by the circuit 

court on the basis Consolidated lacked standing to sue.2 Moreover, Securus and IDOC 

entered into their contract and the transition from Consolidated to Securus had already begun.

Thus, Securus concluded, granting the petition would have no bearing on the litigation or 

IDOC’s contract with Securus. In addition, Securus argued Consolidated could not seek an 

advisory opinion from the Commission regarding unspecified future activities.

¶ 16 Securus also argued the proposed order was contrary to the Commission’s prior orders on 

the subject. Securus disputed the Commission staff’s assertion that a lack of regulation 

resulted in excessive and exorbitant prices for inmate telephone services, arguing the 

additional technological requirements for providing inmate-only telephone service, which are 

not required for ordinary collect telephone calls, accounted for the differences in pricing the 

telephone calls. Securus additionally sought a hearing and oral argument on the matters 

raised in the proposed order.

¶ 17 On November 20, 2012, the Commission’s staff moved to strike the portions of the brief 

of exceptions filed by Securus referring to facts outside the record of the proceedings on 

Consolidated’s petition. On December 18, 2012, the ALJ granted the Commission staff’s 

motion, ruling Securus had not timely filed or sought other relief regarding the Commission 

staff’s response. The ALJ also observed that in contested cases, parties must be notified and 

given the opportunity to contest materials which may be the subject of administrative notice 

 

2A copy of the October 24, 2012, circuit court order dismissing Consolidated’s complaint included 

in the record indicates the complaint was dismissed based not only on Consolidated’s lack of standing 

to sue, but also on the ground of sovereign immunity.
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(see 5 ILCS 110/10-40 (West 2012)). The ALJ did not specifically state this matter was a 

contested case.

¶ 18 On December 21, 2012, Consolidated filed its reply to the exceptions to the proposed 

order. Consolidated argued it was an “affected person” entitled to request a declaratory 

ruling. Consolidated noted it had previously provided the services at issue in its petition.

Consolidated also noted it had appealed the dismissal of its lawsuit by the circuit court and 

filed a complaint with the Illinois Procurement Policy Board. Consolidated distinguished 

case law cited by Securus on the issue of whether an order from the Commission would 

affect the litigation or the contract between IDOC and Securus.

¶ 19 Consolidated’s reply also argued services offered to members of the general public are 

operator services subject to the Commission’s rate regulation. Consolidated maintained 

Securus’s reliance on Part 771 of the Commission’s regulations was inapposite. Consolidated 

further argued that the Commission’s prior orders generally addressed whether inmate pay 

telephone services providers were “telecommunications carriers” under the Public Utilities 

Act, not whether such providers were “operator services providers.” In Consolidated’s view, 

the Commission’s decision in Inmate Communications was the only order addressing the 

precise issue presented in Consolidated’s petition and should not be followed.

¶ 20 On January 9, 2013, the Commission denied Securus’s request for oral argument on the 

proposed order. On January 18, 2013, Securus sought interlocutory review of the ALJ’s 

ruling striking portions of its brief of exceptions. On January 29, 2013, the Commission 

denied interlocutory review of the ruling. On January 31, 2013, Securus renewed its request 

for a hearing on the proposed order.

¶ 21 On February 14, 2013, Consolidated’s petition was placed on the Commission’s regular 

meeting agenda. During the public comment portion of the meeting, Securus’s counsel 

argued there would be detrimental effects if the Commission declared inmate pay telephone 

services subject to Part 770 of the Commission’s regulations. At the request of a 

commissioner, the Commission held the matter over, as there was no deadline for taking 

action on the petition.

¶ 22 On March 6, 2013, the petition was placed on the Commission’s bench session agenda.

During the public comment portion of the meeting, IDOC’s deputy chief of operations spoke 

regarding the need to restrict inmate telephone service to a single provider to facilitate the 

monitoring and regulation of such telephone calls to protect the safety and security of IDOC 

facilities and personnel. When Consolidated’s petition was called for discussion during the 

public utility portion of the meeting, a commissioner requested the ALJ to discuss her 

conclusions in the matter. The ALJ explained the issues raised by Consolidated’s petition and 

observed the Commission’s prior orders contained no factual basis or discussion of its 

findings regarding inmate telephone service. A commissioner inquired of the ALJ whether 

the proposed order would be limited to this case and would have no precedential value 

moving forward should someone attempt to cite it as authority in the future. The ALJ 

responded the proposed order would apply to inmate calling services unless someone filed 

another petition establishing the underlying facts were different. The Commission’s chairman 

indicated the matter would be held for later disposition.

¶ 23 On April 8, 2013, Securus, pursuant to section 200.190 of the Commission’s Rules of 

Practice (83 Ill. Adm. Code 200.190 (1996)), filed a verified motion to dismiss 

Consolidated’s petition as moot. Securus asserted that as of March 28, 2013, all telephone 
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services for inmates at IDOC facilities were transitioned to Securus. Accordingly, 

Consolidated was no longer providing the services which were the subject of Consolidated’s 

petition. Securus relied upon prior Commission orders which declined to issue declaratory 

rulings where the Commission’s regulations did not apply to the requester and where the 

petitioner failed to establish business activities which would be affected by a declaratory 

ruling.

¶ 24 On April 9, 2013, without ruling on Securus’s motion to dismiss, the Commission entered 

a 26-page order granting Consolidated’s petition for a declaratory ruling. The order is not 

identical to the ALJ’s proposed order, but similar in substance. The Commission found 

Consolidated was an “affected person” entitled to seek a declaratory ruling, based on the 

rejection of its contract bid and subsequent litigation as to the denial of the bid protest and 

the award of the contract to Securus, as well as its request for future guidance regarding the 

applicability of the rate regulation. The Commission also found it had sufficient information 

to determine Consolidated’s request was within the parameters of the Commission’s 

authority for issuance of a declaratory ruling and that an actual controversy existed.

¶ 25 The Commission’s order adopted the Commission staff’s argument that, as a matter of 

public policy, the operator services within inmate calling services should be regulated to 

protect members of the public who engage in telephone calls with inmates. The 

Commission’s order did not discuss its prior decisions, other than to note the prior orders are 

not res judicata and the record here disclosed the nature of the operator services included in 

inmate calling services. Accordingly, the Commission ordered “that an entity providing 

telephone calling services accessible to inmates of correctional facilities that include operator 

services as described herein is subject to [s]ection 13-901 of the [Public Utilities] Act and 

[s]ections 770.20(a) and 770.40 of Part 770.”

¶ 26 On April 24, 2013, Securus filed a verified petition for rehearing. On April 25, 2013, the 

ALJ issued a memorandum recommending the Commission deny rehearing. On May 1, 

2013, the Commission denied the petition for rehearing and served the parties electronically 

the following day. On June 4, 2013, Securus filed a notice of appeal to this court.

¶ 27 ANALYSIS

¶ 28 On appeal, Securus argues: (1) the Commission lacked jurisdiction to enter the orders; (2) 

the Commission’s orders violate Illinois law; (3) the Commission’s procedures prior to entry 

of the orders violated Sercurus’s right to due process of law; and (4) the Commission’s 

findings were against the manifest weight of the evidence. The Commission not only takes 

the contrary position to all of Securus’s arguments, but also argues this court lacks 

jurisdiction to hear this appeal, because section 5-150(a) of the Administrative Procedure Act 

(5 ILCS 100/5-150(a) (West 2012)) and section 200.220(i) of the Commission’s Rules of 

Practice (83 Ill. Adm. Code 200.220(i) (1996)) provide that declaratory rulings are not 

appealable. A reviewing court has a duty to ascertain whether it has jurisdiction before 

addressing any issues on appeal. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 

Ill. 2d 209, 213 (2009).

¶ 29 The Commission’s authority to issue declaratory rulings is derived from section 5-150(a) 

of the Administrative Procedure Act and section 200.220(i) of the Commission’s Rules of 

Practice. Section 5-150(a) of the Administrative Procedure Act provides:
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“Each agency may in its discretion provide by rule for the filing and prompt 

disposition of petitions or requests for declaratory rulings as to the applicability to the 

person presenting the petition or request of any statutory provision enforced by the 

agency or of any rule of the agency. Declaratory rulings shall not be appealable.” 5 

ILCS 100/5-150(a) (West 2012).

Pursuant to section 5-150(a), the Commission promulgated section 200.220 of the Rules of 

Practice for the Commission, which provides:

“a) When requested by the affected person, the Commission may in its sole 

discretion issue a declaratory ruling with respect to:

1) the applicability of any statutory provision enforced by the Commission or of 

any Commission rule to the person(s) requesting a declaratory ruling[.]

***

b) A request for a declaratory ruling:

1) shall be captioned as such and shall contain a complete statement of the facts 

and grounds prompting the request, including a full disclosure of the requester’s 

interest; a clear, concise statement of the controversy or uncertainty that is the 

subject of the request; the requester’s proposed resolution of that controversy or 

uncertainty; and citations to any statutes, rules, orders or other authorities 

involved[.]

* * *

i) Declaratory rulings shall not be appealable.” 83 Ill. Adm. Code 200.220(a)(1), 

(b)(1), (i) (1996).

“It is our duty as officers of the court to respect this expression of legislative intent.” 

MidAmerican Energy Corp. v. Illinois Commerce Comm’n, 367 Ill. App. 3d 163, 167 (2006).

In this case, the Commission found it had sufficient information to determine Consolidated’s 

request was within the parameters of the Commission’s authority for issuance of a 

declaratory ruling, an actual controversy existed, and Consolidated was an “affected person”

entitled to seek a declaratory ruling. The jurisdictional issue here thus turns on whether the 

Commission’s order was a declaratory ruling under section 200.220.

¶ 30 Section 200.220 provides that a declaratory ruling regarding a “controversy or 

uncertainty” be requested by an “affected person.” 83 Ill. Adm. Code 200.220 (1996). These 

self-imposed limitations by the Commission do not appear in the text of section 5-150(a) of 

the Administrative Procedure Act, and thus the Commission’s determination of what is a 

“controversy or uncertainty” and who is an “affected person” arguably could be characterized 

as the Commission’s interpretations of its own regulation. This court has stated that “[a]

court may overturn the Commission’s interpretation of its own rules if its construction is 

clearly erroneous, arbitrary, or unreasonable.” Ameren Illinois Co. v. Illinois Commerce 

Comm’n, 2012 IL App (4th) 100962, ¶ 61. Yet we stated this rule in the context of the 

Commission’s interpretation of a statute it is charged with administering and enforcing. See 

id. Section 200.220 is a Commission regulation promulgated pursuant to the Administrative 

Procedure Act, rather than the Public Utilities Act. The Commission’s interpretation of a 

statute it is not charged with administering and enforcing generally is not entitled to any 

deference and is reviewed de novo. Ameren Illinois Co., 2012 IL App (4th) 100962, ¶ 62 

(citing Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 

136 Ill. 2d 192, 204 (1989)). Furthermore, even in cases where some deference is to be 
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afforded to an administrative agency’s statutory interpretations, “our supreme court has 

consistently indicated that ‘[a]n agency’s interpretation is not binding, however, and will be 

rejected when it is erroneous.’ ” AT&T Teleholdings, Inc. v. Department of Revenue, 2012 IL 

App (1st) 113053, ¶ 32 (quoting Shields v. Judges’ Retirement System of Illinois, 204 Ill. 2d 

488, 492 (2003)); see also Business & Professional People for the Public Interest, 136 Ill. 2d 

at 228 (less deference will be afforded the Commission when its decision is a departure from 

the Commission’s past practice). Lastly, we are not bound to accept the Commission’s 

conclusions regarding its jurisdiction. Peoples Gas Light & Coke Co. v. Illinois Commerce 

Comm’n, 222 Ill. App. 3d 738, 743 (1991). Accordingly, while we will consider the 

Commission’s interpretation of section 200.220 in this case, we remain free to reject that 

interpretation if it is unreasonable or otherwise erroneous. AT&T Teleholdings, Inc., 2012 IL 

App (1st) 113053, ¶ 32. We now turn to address whether the Commission’s April 9, 2013, 

order was a nonappealable “declaratory ruling” requested by an “affected person” under 

section 200.220(a)(1).

¶ 31 Securus argues the broad language of the Commission’s order, as well as the March 6, 

2013, public colloquy between a commissioner and the ALJ, establishes the order was 

intended to establish a generally applicable Commission policy. Securus contends section 

200.220 does not authorize the Commission to issue industry-wide conclusions regarding 

policy or practices in the context of a declaratory ruling. Instead, Securus argues section 

10-101 of the Public Utilities Act governs and provides in part:

“Any proceeding intended to lead to the establishment of policies, practices, rules or 

programs applicable to more than one utility may, in the Commission’s discretion, be 

conducted pursuant to either rulemaking or contested case provisions, provided such 

choice is clearly indicated at the beginning of such proceeding and subsequently 

adhered to.” 220 ILCS 5/10-101 (West 2012).

See also 5 ILCS 100/1-70(ii) (West 2012) (a “rule” does not include “informal advisory 

rulings issued under Section 5-150” of the Administrative Procedure Act). Thus, Securus 

argues, the Commission cannot establish a generally applicable policy regarding inmate pay 

telephone services in an order styled as a declaratory ruling. In response, the Commission 

asserts its ruling is a declaratory ruling because it applies only to Consolidated and any 

references to “an entity” in the order are limited to Consolidated offering the services set 

forth in Consolidated’s verified petition for a declaratory ruling.

¶ 32 Securus also maintains Consolidated is not an “affected person” entitled to a declaratory 

ruling. Securus argues that Consolidated’s interest in the existing contract for inmate 

telephone services is moot, as Consolidated no longer provided the services at issue and 

Consolidated’s lawsuit regarding the contract was dismissed by the circuit court of 

Sangamon County. Securus further argues that Consolidated’s assertion that it would like to 

know whether “in the future” charging rates higher than those provided in Part 770 would be 

a violation of the Commission’s regulations does not establish Consolidated is an affected 

person. In response to these arguments, the Commission contends Consolidated is an affected 

person, based on the rejection of Consolidated’s contract bid, the ongoing litigation in 

Sangamon County, and Consolidated’s request for guidance regarding future contract bids.

¶ 33 Neither section 5-150(a) of the Administrative Procedure Act nor section 200.220 of the 

Rules of Practice for the Commission defines the term “declaratory ruling,” and section

200.220 does not define who is an “affected person.” Accordingly, we resort to basic 
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principles of judicial interpretation. Administrative regulations are construed according to the 

same standards that govern the construction of statutes; accordingly, the best indicator of the 

agency’s intent is found in the plain, ordinary and popularly understood meaning of the 

language of the regulation. See People v. Hanna, 207 Ill. 2d 486, 497-98 (2003). In this 

regard, we note section 2-701(a) of the Illinois Code of Civil Procedure (Code) (735 ILCS 

5/2-701(a) (West 2010)) provides that a court “may, in cases of actual controversy, make 

binding declarations of rights *** of the rights of the parties interested.” “By the very terms 

of the statute, a declaratory judgment action may not be maintained unless and until an actual 

controversy exists ***.” Great West Casualty Co. v. Cote, 365 Ill. App. 3d 100, 105 (2006).

An actual controversy is one of the essential elements of an action for declaratory relief. See 

Beahringer v. Page, 204 Ill. 2d 363, 372 (2003). “As used in this phrase, ‘actual’ does not 

mean that a wrong must have been committed and an injury inflicted; rather, the term 

requires a showing that the underlying facts and issues of the case are not moot or premature 

with the result that a court passes judgment upon mere abstract propositions of law, renders 

an advisory opinion, or gives legal advice concerning future events.” Messenger v. Edgar,

157 Ill. 2d 162, 170 (1993). It is also generally understood that a party seeking declaratory 

relief be “interested” in the controversy. Pekin Insurance Co. v. Cincinnati Insurance Co., 

157 Ill. App. 3d 404, 406 (1987). “ ‘[I]nterested’ does not mean merely having a curiosity 

about or a concern for the outcome of the controversy [citation]; rather, the party requesting 

the declaration must possess a personal claim, status, or right that is capable of being affected 

by the grant of such relief [citation].” Messenger v. Edgar, 157 Ill. 2d at 171.

¶ 34 The Commission has relied on these basic principles regarding declaratory relief in its 

interpretation of section 200.220(a). Section 200.220 requires a requester of a declaratory 

ruling provide a clear and concise statement of the “controversy or uncertainty” prompting 

the request. 83 Ill. Adm. Code 200.220 (1996). Moreover, in Illinois Industrial Energy 

Consumers’ Request for Declaratory Ruling Pursuant to 200.220 re: Section 16-102 of an Act 

Entitled “Electric Service Customer Choice and Rate Relief Law of 1997,” Ill. Com. Comm’n

No. 98-0607 (Mar. 10, 1999) (Consumers’ Request), the Commission was asked to clarify the 

meaning of a provision of the Public Utilities Act, but the Commission concluded it had “no 

authority to declare what a particular statute means in some abstract sense.” The Commission 

concluded that the “ ‘controversy or uncertainty’ ” embodied in section 200.220 “must be 

sufficiently immediate or ripe to enable [the Commission] to evaluate and resolve the matter 

with a declaratory ruling.” Id. (citing Weber v. St. Paul Fire & Marine Insurance Co., 251 Ill. 

App. 3d 371 (1993)). The Commission also determined the requesters’ allegations failed to 

establish the requesters were “affected” persons or constituted “a full disclosure of the 

requester’s interest.” (Emphasis added.) Id.; see 83 Ill. Adm. Code 200.220(b)(1) (1996).

Given the requirement that an “affected person” set forth an actual “controversy or 

uncertainty,” petitions for declaratory relief must establish the issues of the case are not moot 

or premature. See Consumers’ Request, Ill. Commerce Comm’n, No. 98-0607; Continental 

Casualty Co. v. Howard Hoffman & Associates, 2011 IL App (1st) 100957, ¶ 19. It is central 

to the purpose of a proceeding for declaratory relief that it allow the decision-making body to 

take hold of a controversy one step sooner than normally, i.e., after the dispute has arisen, but 

before steps are taken which give rise to claims for damages or other relief. See Kaske v. City 

of Rockford, 96 Ill. 2d 298, 306 (1983); see also Beahringer, 204 Ill. 2d at 372-73.
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¶ 35 Moreover, in Resource Technology Corp. v. Commonwealth Edison Co., 343 Ill. App. 3d 

36 (2003), this court addressed the issue of whether a Commission order was a declaratory 

ruling, as well as whether the order was sought by an affected person. This court first 

observed Illinois case law and Commission actions did not offer much guidance on the types 

of issues that are appropriate subjects for a declaratory ruling, as section 200.220 of the 

Commission’s Rules of Practice was not promulgated by the Commission until 1996. Id. at 

43. We noted the Commission declined to issue a declaratory ruling in Consumers’ Request

because the Commission concluded it had “ ‘no authority to declare what a particular statute 

means in some abstract sense.’ ” Id. at 44.

¶ 36 The Resource Technology Corp. court rejected a broad interpretation of section 200.220

urged by the Commission and petitioner Commonwealth Edison (ComEd), reasoning one 

could argue for a declaratory ruling each time the Commission makes a decision concerning 

the Public Utilities Act, as almost everything the Commission does involves the applicability 

of the statute. Id. Accordingly, this court determined that whether the order was a declaratory 

ruling must be determined by examining the substance of ComEd’s petition. Id.

¶ 37 Turning to the substance of ComEd’s petition, the Resource Technology Corp. court 

observed that while ComEd’s petition was “dressed up in language that sought the 

Commission’s view of statutory application,” the petition actually sought to have the 

Commission interpret a 1997 order governing the relationship between ComEd and 

Resources Technology Corp. (RTC). Id. The court also observed “[t]he ‘affected person’ was 

not ComEd, but RTC.” Id. RTC was an intervenor in the proceedings on ComEd’s petition 

for a declaratory ruling. Id. at 41. Accordingly, the court concluded the Commission’s order 

was not a declaratory ruling within the meaning of section 200.220 and denied the 

Commission’s motion to dismiss the appeal. Id. at 44.

¶ 38 In this case, as in Resource Technology Corp., we must determine whether the 

Commission’s order at issue is a declaratory ruling by examining the substance of 

Consolidated’s petition. See id. In its petition for a declaratory ruling, Consolidated alleged 

an actual controversy existed, based on the fact that Consolidated submitted a bid to CMS for 

an inmate services calling contract, which was not accepted. Consolidated also relied upon 

the CPO’s rejection of Consolidated’s bid protest regarding the contract award.

Consolidated’s petition did not refer to the lawsuit it subsequently filed in the circuit court of 

Sangamon County.

¶ 39 Consolidated’s petition for a declaratory ruling is contrary to the central purpose of 

seeking declaratory relief. At the time of its filing, steps had already been taken which 

allegedly gave rise to claims for damages or other relief. See Kaske, 96 Ill. 2d at 306.

Consolidated’s petition sought a declaratory ruling regarding the application of a regulation 

to a contract bidding process which had already terminated. Indeed, after losing its bid 

protest, Consolidated filed a claim for damages or other relief. In this most basic sense, 

Consolidated’s petition for a declaratory ruling is obviously untimely, as it sought a ruling 

regarding a course of action Consolidated had already undertaken. Thus, regarding the 

submission of the bid to CMS, any actual controversy or uncertainty is moot. See Continental 

Casualty Co., 2011 IL App (1st) 100957, ¶ 19.

¶ 40 Consolidated also alleged in its petition that an actual controversy existed because it 

needed to know “whether, in the future, it would be acting in violation of a Commission 

regulation if it were to charge higher rates than those established pursuant to § 770.40(c) and 
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(e) to members of the public in connection with the provision of the inmate telephone calling 

services described” in the petition. The record establishes Consolidated is no longer 

providing the services described in its petition. Moreover, Consolidated’s petition fails to 

identify any immediate or concrete set of facts regarding the future provision of these 

services. Furthermore, the specific nature, terms, and conditions of the telephone services 

IDOC may seek to provide to inmates pursuant to future contracts is also unknown.

Consequently, it is unknown whether Consolidated would be successful in any future bid 

process. Accordingly, Consolidated’s petition can only be construed as seeking an abstract 

opinion on the applicability of the existing regulations under some set of unknown future 

circumstances. Consolidated’s claim to be an affected person thus presents precisely the type 

of abstract and conjectural interest the Commission rejected in Consumers’ Request.

¶ 41 The Commission concluded Consolidated was an affected person in part because of 

pending litigation brought by Consolidated as to the contract award. Although not alleged in 

the petition for a declaratory ruling, Consolidated’s reply to Securus further relied upon the 

fact that the award of the contract is the subject of ongoing litigation. On this point, we note 

Consolidated and the Commission staff initially took the position in these proceedings that 

the litigation in the circuit court of Sangamon County was immaterial or irrelevant to 

Consolidated’s statement of its interest in the petition for a declaratory ruling. Securus argued 

it was improper for Consolidated to file its verified petition for the purpose of advancing 

Consolidated’s position in the litigation. Thus, in this case, only the Commission concluded 

the litigation was material and a basis to conclude Consolidated was an “affected person”

under section 200.220. The Commission’s order, however, contains no explanation for this 

conclusion.

¶ 42 More significantly, the Commission’s conclusion in this respect is inexplicable, given our 

decision in Resource Technology Corp. The Commission attempts to distinguish Resource 

Technology Corp. as a case where the Commission was interpreting a prior order governing 

the relationship between ComEd and RTC, rather than issuing a declaratory ruling. See 

Resource Technology Corp., 343 Ill. App. 3d at 44. Similar to Resource Technology Corp., 

however, Consolidated has requested a declaratory ruling after litigation has commenced in 

another forum, contrary to the basic point of seeking a declaratory ruling. See Kaske, 96 Ill. 

2d at 306. In addition, as in Resource Technology Corp., the actual “affected person” in this 

case would be the intervenor and successful bidder, Securus. See Resource Technology 

Corp., 343 Ill. App. 3d at 44. Accordingly, we conclude Resource Technology Corp. is 

applicable to this case.

¶ 43 In addition, Consolidated’s lawsuit was dismissed by the circuit court of Sangamon 

County based on Consolidated’s lack of standing to sue and the doctrine of sovereign 

immunity. These issues are issues unrelated to the subject of Consolidated’s petition and the 

Commission’s order. Thus, even assuming for the sake of argument that the dismissal was 

reversed on appeal, the effect of a declaratory ruling upon the litigation–if any–is unknown, 

as the record on appeal does not describe all of the issues which may be involved in the 

litigation. It is also unclear whether a declaratory ruling issued after the contract was already 

awarded to Securus would affect the outcome of the litigation. There is no indication in this 

record that the Commission’s order would have any effect on the ongoing litigation. Thus, 

Consolidated’s supposed interest in obtaining a declaratory ruling based on pending litigation 

ultimately is hypothetical or conjectural.
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¶ 44 In short, Consolidated’s allegations regarding the submission of its contract bid do not 

establish an actual controversy because that controversy is moot. Consolidated’s allegations 

regarding its possible future activities are too abstract and hypothetical to constitute a full 

statement of the requester’s interest. Neither Consolidated nor the Commission established 

the ongoing litigation in Sangamon County would be affected by the Commission’s order.

Accordingly, for all of the aforementioned reasons, we conclude the Commission’s order in 

this case was not a declaratory ruling, as the party requesting the order was not an affected 

person and there was no controversy or uncertainty within the meaning of section 200.220 of 

the Commission’s regulations. Accordingly, the Commission’s order is not a nonreviewable 

declaratory ruling under section 200.220(i). See Resource Technology Corp., 343 Ill. App. 3d 

at 44.

¶ 45 Our resolution of the jurisdictional question, however, is decisive on the merits of the 

propriety of the Commission’s order. In evaluating the propriety of an order issued by the 

Commission, our scope of review is governed by section 10-201 of the Public Utilities Act 

(see 220 ILCS 5/10-201 (West 2012)). Section 10-201 provides in relevant part that a 

reviewing court shall reverse a Commission’s order or decision, in whole or in part, if it finds 

that: (a) the findings of the Commission were not supported by substantial evidence based on 

the entire record of evidence presented to or before the Commission for and against such 

order or decision; (b) the order or decision was without the jurisdiction of the Commission; 

(c) the order or decision was in violation of the state or federal constitution or laws; or (d) the 

proceedings or manner by which the Commission considered and entered its order or 

decision were in violation of the state or federal constitution or laws, to the prejudice of the 

appellant. 220 ILCS 5/10-201(e)(iv) (West 2012).

¶ 46 In this case, based on our foregoing analysis, the decisive issue is whether the 

Commission’s ruling was made outside the jurisdiction of the Commission. “ ‘The term 

“jurisdiction,” while not strictly applicable to an administrative body, may be employed to 

designate the authority of the administrative body to act ***.’ ” Business & Professional 

People for the Public Interest, 136 Ill. 2d at 243 (quoting Newkirk v. Bigard, 109 Ill. 2d 28, 36

(1985)). As our supreme court has stated:

“[I]n administrative law, the term ‘jurisdiction’ has three aspects: (1) personal 

jurisdiction–the agency’s authority over the parties and intervenors involved in the 

proceedings, (2) subject matter jurisdiction–the agency’s power ‘to hear and 

determine causes of the general class of cases to which the particular case belongs’

[citation], and (3) an agency’s scope of authority under the statutes.” Id.

“Consequently, to the extent an agency acts outside its statutory authority, it acts without 

jurisdiction.” Id. Thus, for example, this court vacated portions of a Commission order which 

constituted a declaratory ruling prior to the promulgation of section 200.220. See 

Harrisonville Telephone Co. v. Illinois Commerce Comm’n, 176 Ill. App. 3d 389, 393 (1988).

¶ 47 The Commission purported to act pursuant to section 5-150(a) of the Administrative 

Procedure Act and section 200.220 of the Commission’s Rules of Practice, which empower 

the Commission to issue declaratory rulings. As previously noted, when requested by an

affected person, the Commission may issue a declaratory ruling where there is a clearly 

stated controversy or uncertainty. For the reasons already stated, Consolidated was not an 

“affected person” entitled to request a declaratory ruling from the Commission and 

Consolidated failed to clearly state an actual controversy or uncertainty. Thus, we conclude 
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the Commission’s order was outside the Commission’s authority under the Administrative 

Procedure Act and the Commission’s own implementing regulation. See Harrisonville 

Telephone Co., 176 Ill. App. 3d at 393. Accordingly, the Commission’s order must be 

vacated. Moreover, as the Commission lacked jurisdiction to enter the order at issue in this 

case, we need not address the merits of the Commission’s ruling as this court was required to 

do in Resource Technology Corp.

¶ 48 CONCLUSION

¶ 49 For all of the aforementioned reasons, the Commission’s April 9, 2013, order is vacated.

The Commission’s May 1, 2013, order denying rehearing is similarly vacated.

¶ 50 Vacated.