Nos. 1-13-0302 & 1-13-0493

THIRD DIVISION JUNE 30, 2014

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

COMMONWEALTH EDISON COMPANY, ) ) Petitioner, ) Petition for Review of Orders ) of the Illinois Commerce v. ) Commission in ) ICC Docket No. 12-0321 ILLINOIS COMMERCE COMMISSION; ) THE PEOPLE OF THE STATE OF ILLINOIS ) ex rel. THE ATTORNEY GENERAL OF ) THE STATE OF ILLINOIS; AARP; ) BUILDING OWNERS AND MANAGERS ) ASSOCIATION OF CHICAGO; ) CITIZENS UTILITY BOARD; ) CITY OF CHICAGO, ) ) Respondents. )

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Hyman and Mason concurred in the judgment and opinion.

OPINION

&1 This is a consolidated case for review of the rulings of the Illinois Commerce Commission

in Commonwealth Edison's (ComEd) 2012 statutory rate update and reconciliation case (2012

Rate Case), applying section 16-108.5 of the Public Utilities Act, commonly known as the Energy

Infrastructure Modernization Act (220 ILCS 5/16-108.5 (West 2012)), which amended the Public Nos. 1-13-0302 & 1-13-0493

Utilities Act (220 ILCS 5/1-101 et seq. (West 2012)). ComEd seeks review of three issues in the

2012 rate update order: (1) the billing determinants; (2) the allocation of certain common costs

that ComEd incurs in connection with its interstate transmission service and its local delivery

service; and (3) the denial of most of ComEd's 2011 Rate Case attorney fees and expenses as costs.

ComEd argues that the Commission's errors on these issues, taken together, prevent ComEd from

recovering millions of dollars in its actual costs to provide electric service to its customers. We

hold ComEd has failed to sustain its burden on appeal of establishing error by the Commission.

¶2 BACKGROUND

¶3 The Public Utilities Act, as amended, permits electric utilities to use a "performance-based

formula" (220 ILCS 5/16-108.5(b) (West 2012)) to set rates for delivery of the electricity they sell.

Under section 16-108 of the Electric Service Customer Choice and Rate Relief Law of 1997, a

utility is required to file a delivery services tariff (DST) with the Commission at least 210 days

prior to the date on which the utility is to begin supplying such services. 220 ILCS 5/16-108(a)

(West 2012). The Commission is then required to enter an order approving or approving as

modified the utility's DST no later than 30 days prior to the date on which the utility is to begin

supplying such services. 220 ILCS 5/16-108(b) (West 2012).

¶4 In 2011, the legislature enacted the Energy Infrastructure Modernization Act, which is

section 16-108.5 of the Public Utilities Act (220 ILCS 5/16-108.5 (West 2012)), to stimulate new

investments by utilities in the State's energy infrastructure. The Act provides for guaranteed

payment of utilities' costs and a rate of return for its investments in infrastructure. "A public

utility is entitled both to recover in its rates certain operating costs and to earn a return on its rate

base (i.e., the amount of its invested capital)." Commonwealth Edison Co. v. Illinois Commerce

2 Nos. 1-13-0302 & 1-13-0493

Comm'n,

(2001) (citing Citizens Utilities Company of Illinois v. Illinois

Commerce Comm'n,

(1988)).

¶5 In exchange for this legislative guarantee of payment, the utility must commit to making

very substantial investments in updating and improving its facilities, and in hiring new employees.

220 ILCS 5/16-108.5(b) (West 2012). A public utility's participation in the Act is voluntary.

220 ILCS 5/16-108.5(b) (West 2012). ComEd is a participating utility and committed to invest

an estimated $2.6 billion in infrastructure on top of its normal annual capital investment program

over the next ten years. 220 ILCS 5/16-108.5(b)(2) (West 2012). Under the Act the formula to

establish rates enables ComEd to make planned substantial investment increases in its capital

commitment by providing it with greater certainty of timely cost recovery than it would have

received under previous rates.

¶6 To understand the issues in this case, it is necessary to first explain the Act's formula and

define certain terms used under the Act and in rate-setting generally. We therefore explain these

terms and then we summarize the procedural history and rulings in the 2011 Rate Case, which is

the first rate case under the Act, as well as the issues now presented in this case, before providing

our analysis and holding. We explain the revenue requirement formula and explain the terms

common cost "allocation," "billing determinants," and "rate case expenses." The issues presented

in this case regarding the Commission's 2012 Rate update order concern billing determinants,

allocation, and rate case expenses.

¶7 Revenue Requirement Formula

¶8 The Act sets forth a performance-based formula to set a rate for electricity delivery

services. See 220 ILCS 5/16-108.5(b) (West 2012). "The components of the revenue

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requirement have frequently been expressed in the formula 'R (revenue requirement) = C

(operating costs) + Ir (invested capital or rate base times rate of return on capital).' " Business &

Professional People for the Public Interest v. Illinois Commerce Comm'n,

(1991) (quoting Citizens Utilities Company of Illinois v. Illinois Commerce Comm'n,

(1988)).

¶9 In establishing the rates that a public utility can charge its customers, the Commission

considers the company's operating costs, rate base, and allowed rate of return. Commonwealth

Edison Co. v. Illinois Commerce Comm'n,

(2001) (citing Citizens

Utilities Company of Illinois,

).

¶ 10 In this formula the cost of capital equals the rate base times the rate of return on capital.

Commonwealth Edison Co. v. Illinois Commerce Comm'n,

, & 3 (citing

Business & Professional People for the Public Interest v. Illinois Commerce Comm'n,

(1991)). The rate base is defined as the total value of all invested capital.

Invested

capital includes investments in projected plant additions. The Commission practice in rate

proceedings is to make adjustments to account for the effects of pro forma projected plant

additions to the rate base.

¶ 11 "The rate of return is typically established with reference to what would be a reasonable

return on the present value of a utility's property." Commonwealth Edison Co. v. Illinois

Commerce Comm'n,

(2009) (citing Villages of Milford v. Illinois

Commerce Comm'n,

(1960)). "The return is the product of the allowed rate of

return and the rate base." Commonwealth Edison Co.,

(citing Citizens

Utilities Co.,

). The company's revenue requirement comprises the sum of

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operating costs and the return on the rate base.

¶ 12 Costs

¶ 13 The Act provides that participating utilities recover their prudent and reasonable "actual

costs of delivery services." 220 ILCS 5/16-108.5(c)(1) (West 2012). These are the "operating

costs" part of the revenue requirement formula.

¶ 14 The Act specifies many of the "cost components" that form the basis of the rate, including

the "costs of delivery services that are prudently incurred and reasonable in amount consistent with

Commission practice and law," year-end capital structure, cost of equity, incentive compensation

expense,1 and pension and other post-employment benefits expense and severance costs. 220

ILCS 5/16-108.5(c) (West 2012). Generally, a utility's costs are recoverable if they are

reasonable and prudent. Commonwealth Edison Co. v. Illinois Commerce Comm'n,

(2009) (citing Business & Professional People for the Public Interest,

). "[T]o be recoverable, in addition to being reasonable and prudent, a cost must also pertain

to operations or service delivery ***." Commonwealth Edison Co. v. Illinois Commerce Comm'n,

(2009).

¶ 15 The Act provides that a utility's costs shall include the "final data based on [the utility's]

most recently filed [Federal Energy Regulatory Commission] FERC Form 1." 220 ILCS

5/16-108.5(c) (West 2012). The FERC regulates and has exclusive jurisdiction of interstate

1 We do not discuss the "recovery of incentive compensation expense that is based on the

achievement of operational metrics" (220 ILCS 5/16-108.5(c)(4)(A) (West 2012)), as ComEd

withdrew its appeal of the Commission's ruling concerning this component of cost.

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transmission of electricity, and it sets rates for the interstate transmission. See

(b)(1) (2012). The FERC Form 1 is an annual report filed by major private utilities with the

FERC. Thus, the Commission bases a utility's costs, in part, on the "final historical data" of "the

actual costs for the prior rate year" on the FERC Form 1. 220 ILCS 5/16-108.5(d)(1) (West

2012).

¶ 16 The Act requires that the rate formula "shall specify the cost components that form the

basis of the rate charged to customers with sufficient specificity to operate in a standardized

manner and be updated annually with transparent information that reflects the utility's actual costs

to be recovered during the applicable rate year." 220 ILCS 5/16-108.5(c) (West 2012). The

charges are to be "just and reasonable and shall take into account customer impacts." 220 ILCS

5/16-108(d) (West 2012).

¶ 17 Allocation

¶ 18 ComEd uses its power lines to both distribute power to customers within Illinois and also

to transmit electricity across state lines. Thus, its operating costs include costs that are common

to both intrastate and interstate delivery of electricity. Common costs are costs that ComEd

incurs for things that serve both interstate transmission and intrastate distribution, such as

expenses for what are called "general plant" costs (e.g., land, buildings, equipment and tools) and

"intangible plant" costs (e.g., incorporation and franchise fees), and real estate taxes. The

interstate component is referred to as interstate "transmission" and the intrastate component is

referred to as intrastate "distribution." The FERC regulates and has exclusive jurisdiction of

interstate transmission of electricity (16 U.S.C. ' 824(b)(1) (2012)), while the Commission

regulates and has exclusive jurisdiction of intrastate distribution.

6 Nos. 1-13-0302 & 1-13-0493

¶ 19 When ComEd incurs costs that relate to both its interstate transmission and intrastate

distribution services, those costs must be "allocated" or "functionalized,"2 meaning apportioned,

between interstate transmission and intrastate distribution. These common costs must be

allocated between federal and state costs so that an appropriate portion of each common cost is

assigned to each jurisdiction to allow the regulator to set rates. Section 16-108.5(c)(4) directs the

Commission to set protocols "for the allocation of common costs" using its traditional article IX

general ratemaking authority. 220 ILCS 5/16-108.5(c)(4)(I) (West 2012). The Commission

historically has exercised broad discretion in allocating common costs.

¶ 20 ComEd argues on appeal in this case that unless the federal and state costs are allocated

using the same methodologies, some of the costs it incurs will not be allocated to either the federal

jurisdiction (FERC) or the state jurisdiction (Commission), and therefore these costs will be

unrecoverable from either the federal rate or the state rate. ComEd refers to such allegedly

unrecoverable costs as "trapped" costs. There is, however, no requirement under either the Act or

federal statute or regulations that the FERC and the Commission use the same methodologies in

allocating costs.

¶ 21 Billing Determinants

¶ 22 Billing determinants are not "costs" that ComEd has incurred; rather, they are measures of

the quantity of customer demand for service used to set rates that will allow a utility to recover its

revenue requirement. Once a utility establishes its revenue requirement, the utility must then

2 ComEd uses the terms "allocation" and "functionalization" and "allocating" and

"functionalizing" interchangeably.

7 Nos. 1-13-0302 & 1-13-0493

spread the revenue requirement to several established classes of ratepayers, and set rates, based on

historical data, that the utility expects to generate its required revenue. Commonwealth Edison

Co.,

, & 3. To set the rates that would allow ComEd to recover its

revenue requirement, the Commission must calculate the quantity of ComEd's services that

customers will demand. A utility's revenues are a function of both unit rates, which is the price

per kilowatt hour (kWh) of electricity delivered, and the quantity of services used (both the

number of customers and the volume of kWh delivered to them). The greater the demand for and

use of electricity, the lower the unit prices need to be in order for ComEd to realize its revenue

requirement.

¶ 23 The Act specifically requires that as part of providing for the recovery of a utility's actual

costs of delivery services, the Commission shall "[p]ermit and set forth protocols, subject to a

determination of prudence and reasonableness consistent with Commission practice and law" for

"historical weather normalized billing determinants." 220 ILCS 5/16-108.5(c)(4)(H) (West

2012). Weather normalization is the process of accounting for any deviation between the historic

year's temperature and normal temperatures.

¶ 24 Other billing determinants may be used to measure the quantity of customer demand,

including new customer growth as the result of plant additions. The Commission is not limited to

considering only "historical weather normalized billing determinants." Rather, the Act provides

that the performance-based formula rate approved by the Commission shall "[p]rovide for the

recovery of the utility's actual costs of delivery services that are prudently incurred and reasonable

in amount consistent with Commission practice and law." 220 ILCS 5/16-108.5(c)(1) (West

2012). The Act is permissive in providing that the Commission shall "[p]ermit and set forth

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protocols" (emphasis added) for the historical weather normalized billing determinants. 220

ILCS 5/16-108.5(c)(4)(H) (West 2012). The Act does not limit billing determinants to only

historical weather normalization.

¶ 25 Rate Case Expenses

¶ 26 Under the Act, the formula also includes as one of the cost components the "recovery of the

expenses related to the Commission proceeding *** to approve th[e] performance-based formula

rate" (220 ILCS 5/16-108.5(c)(4)(E) (West 2012)). The Act was amended, effective July 10,

2009, to add a provision specifically governing consideration of attorney's fees and expert

expenses as part of a utility's cost. See Pub. Act 96-33, ' 10 (eff. July 10, 2009). Section 9-229

of the Act now requires that the Commission "specifically assess the justness and reasonableness

of any amount expended by a public utility to compensate attorneys or technical experts to prepare

and litigate a general rate case filing." 220 ILCS 5/9-229 (West 2012).

¶ 27 2011 Rate Case

¶ 28 "A rate case is started when a utility *** 'files tariffs providing for a rate increase and the

Commission suspends those tariffs to conduct an investigation and hearing.' " People ex rel.

Madigan v. Illinois Commerce Comm'n,

, & 11 (quoting Commonwealth

Edison Co. v. Illinois Commerce Comm'n,

(2010)). "The Commission

may approve, reject, or modify the proposed tariffs. Section 9-201(c) of the Act provides that, if

the Commission initiates a proceeding concerning the appropriateness of a utility's proposed rates,

the utility has the burden of proving that the proposed rates are just and reasonable."

Commonwealth Edison,

; see also 220 ILCS 5/9-201(c) (West 2010).

¶ 29 In 2011, ComEd chose to file a new rate tariff under the performance-based formula in the

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Act. The Illinois Attorney General, the American Association of Retired Persons (AARP) and

the Citizens Utility Board (CUB) opposed parts of the proposed rate tariff and were allowed to

intervene. The disputed issues centered on the reconciliation process, in particular about when to

include new capital additions in the rate base and how much interest ratepayers should pay on the

reconciliation amount. The Attorney General, AARP and CUB proposed an upward adjustment

to ComEd's year-end 2010 billing determinants to account for the effect on billing determinants of

customer growth from ComEd's inclusion of the new business component of its 2011 projected

plant additions in rate base.

¶ 30 The Commission established the formula in the 2011 Rate Case. Commonwealth Edison

Co., Ill. Comm. Comm'n, Docket No. 11-0721 (Order May 29, 2012). The Commission adopted

ComEd's proposed protocols for weather normalized billing determinants. These protocols are

the variables, models, and methodologies ComEd uses to modify certain billing determinants to

reduce the impact of abnormal weather. The Commission has generally accepted ComEd's

weather normalization protocols and did so in the 2011 Rate Case order. Commonwealth Edison

Co., Ill. Comm. Comm'n, Docket No. 11-0721 (Order May 29, 2012).

¶ 31 The Commission, however, concluded that ComEd's proposed rate failed to adjust the

billing determinants to account for the effect of ComEd's 2011 projected new business plant

additions on customer growth, which would allow for the recovery of more than the actual costs of

delivery services, in contravention of section 16-108.5(c)(4)(1). The Commission found the

Attorney General, AARP, CUB and its staff's proposal reasonable to ensure accurate billing

determinants and permit ComEd to recover no more in revenue than that to which it is entitled

under its revenue requirement. The Commission agreed that without an appropriate adjustment to

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the billing determinants to include new customer growth, ComEd would consistently earn more in

revenue than its revenue requirement.

¶ 32 The Commission considered evidence and argument regarding a decline in kWh sales but

rejected ComEd's argument to take into account this change in usage. The Commission

concluded in its 2011 Rate Case order that:

"[A] decline in [kWh] sales, in and of itself, does not establish that there are less customers.

It simply means that less electricity was sold. Other factors, such as energy efficiency, a

bad economy, etc. may very well contribute to a decline in [kWh] sales. Without

information as to what causes a decline in [kWh] sales, it does not appear that this decline

should offset the increase in billing determinants that reflects ComEd's new business."

Commonwealth Edison Co., Ill. Comm. Comm'n, Docket No. 11-0721 (Order May 29,

2012).

¶ 33 The Commission directed ComEd to take its 2010 year-end billing determinants and adjust

them to reflect the estimated increase in customer bill count or new customer growth produced by

the 2011 projected new business plant additions.

¶ 34 Regarding allocation, ComEd proposed to change its allocation method for general and

intangible plant costs which would produce a net increase of approximately $18.2 million in net

plant costs allocated to distribution, and result in a $2.171 million increase in its revenue

requirement. ComEd also changed its allocation of real estate taxes, shifting $3.345 million in

real estate taxes to intrastate distribution, instead of allocating this cost to interstate transmission.

According to ComEd, its methodologies were consistent with the methodologies FERC had used

in setting ComEd's interstate transmission rates. The methodologies the FERC used, however,

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were the ones urged by ComEd. The FERC did not determine these different methodologies.

¶ 35 The Commission, however, rejected these changes in allocation and reaffirmed ComEd's

prior existing cost allocation methods which it had used in its most recent rate case prior to the

2011 Rate Case. In weighing ComEd's evidence, the Commission found that ComEd failed to

demonstrate that a change from the existing, long-standing, Commission-approved just and

reasonable cost allocation methodologies was warranted. The Commission found that ComEd

failed to establish that its proposal was more accurate or just and reasonable than the existing

allocation, or necessary to align federal and state tariffs, or that there were any trapped costs. The

Commission specifically found that ComEd presented no factual evidence to establish that costs

were in fact being trapped between the FERC and the Commission's jurisdictions or to establish

that it was necessary to align ComEd's FERC-filed tariff and its Commission-filed tariff in the

manner ComEd proposed. ComEd claimed that, as a result of the Commission's ruling some of

ComEd's costs were "trapped" and unable to be recovered.

¶ 36 ComEd appealed, challenging the following rulings by the Commission: (1) requiring an

adjustment to rates charged to ComEd customers to reflect the expected increase in the number of

customers served; (2) allocating certain general costs between distribution to ratepayers and

transmission to out-of-state purchasers; (3) restricting ComEd's recovery from ratepayers for

certain performance bonuses paid to ComEd employees; (4) denying ComEd recovery from

ratepayers for part of the amount ComEd paid to an affiliate, which was used by the affiliate to

give its employees bonuses based on net income; and (5) denying ComEd recovery from

ratepayers for compensation paid to ComEd managers in the form of stock in ComEd's parent

corporation. We recently issued an opinion rejecting ComEd's arguments and affirming the

12 Nos. 1-13-0302 & 1-13-0493

Commission's order. See Commonwealth Edison Co. v. Illinois Commerce Comm'n,

.

¶ 37 In the 2011 Rate Case, ComEd had also challenged two other Commission rulings: (1)

using an average rate base instead of a year-end rate base when calculating the reconciliation

balance; and (2) applying an interest rate equal to ComEd's short-term debt rate rather than

ComEd's weighted average cost of capital to the reconciliation balance. But these issues were

resolved by legislative amendment in Public Act 98-15, which preempted and superseded those

Commission orders. See Pub. Act 98-15, ' 1 (eff. May 22, 2013). We noted this amendatory

Act in our opinion in the 2011 Rate Case. See Commonwealth Edison Co.,

, & 49. These previous alleged errors are not at issue in this appeal.

¶ 38 2012 Rate Case

¶ 39 The Act requires that the formula "be updated annually with transparent information that

reflects the utility's actual costs to be recovered during the applicable rate year." 220 ILCS

5/16-108.5(c) (West 2012). While the appeal of the 2011 Rate Case was pending, the

Commission was required to continue to apply the formula in annual update proceedings. This

case arises from the Commission's first update under that formula.

¶ 40 The final order by the Commission under review in this case (2012 Rate Case) was issued

on December 19, 2012. In the 2012 Rate Case, ComEd was required to submit a rate filing that

conformed with the Commission's order and rulings in the 2011 Rate Case. Accordingly,

ComEd's filed rate reflected the "functionalization of plant between the transmission and

distribution functions *** in conformance with the May 11-0721 Order," but ComEd stated in its

brief before the Commission that by doing so it "did not change its position on the issues, nor did it

13 Nos. 1-13-0302 & 1-13-0493

waive any rights to pursue them currently or in the future." Commonwealth Edison Co., Ill.

Comm. Comm'n, Docket No. 12-0321 (Order Dec. 19, 2012).

¶ 41 ComEd did not, however, adjust its 2011 year-end billing determinants to reflect the

estimated increase in customers attributable to the 2012 projected new business plant additions.

ComEd's position is that the 2011 Rate Case order was limited to that year, and that ComEd did not

need to adjust its billing determinants for 2012 to reflect the estimated increase in customer bill

count due to projected new plant additions. The Attorney General, AARP, CUB and the

Commission staff disagreed and recommended that the Commission adopt an upward adjustment

to ComEd's 2011 billing determinants to reflect the 2012 projected new business plant additions,

consistent with the approach in the 2011 Rate Case order. The Commission agreed and so

ordered.

¶ 42 ComEd's tariff filing for 2012 measured its rate base as of December 31, 2011, and then

increased that end-of-year figure by the amount of 2012 projected plant additions. One of the

components of ComEd's total 2012 projected plant additions is for "New Business," which was

estimated to be about $130 million and represents facilities to accommodate customer growth and

includes equipment and line extensions to serve new residential and commercial development.

¶ 43 In ComEd's application for rehearing, ComEd requested that the Commission correct the

2012 order's revenue requirement and rates to allocate ComEd's assets and costs consistently with

federal law and with the allocation approved by the FERC. The application for rehearing was

denied. ComEd then filed a timely notice of appeal and petition for review with this court. On

February 14, 2013, the Commission issued an amendatory order, and ComEd filed a notice of

appeal and petition for review of that amendatory order. We granted a motion to consolidate the

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appeals.

¶ 44 ANALYSIS

¶ 45 In this 2012 rate update case, ComEd seeks review of three issues: (1) the billing

determinants; (2) the allocation of certain common costs that ComEd incurs in connection with its

interstate transmission service and its intrastate distribution or local delivery service (which is

regulated by the Commission); and (3) the denial of ComEd's 2011 Rate Case expenses, such as

the legal fees incurred in making its rate case filings, as not reasonable. The first two issues

involve the same alleged formula errors as alleged in the 2011 Rate Case. ComEd argues those

"errors" recurred in this case, as the Commission again applied those same aspects of the formula

rate. The third issue is raised for the first time. ComEd also initially sought review of the

Commission's treatment of incentive compensation, arguing that the Commission used a legally

erroneous standard, but in its reply brief ComEd withdraws its request for review of this issue

because ComEd concedes that the Commission allowed ComEd's requested compensation

expense and thus ComEd was not harmed.

¶ 46 "When reviewing the Commission's orders, we are limited to considering whether (1) the

Commission acted within its authority; (2) adequate findings were made to support the decision;

(3) the decision was supported by substantial evidence; and (4) state or federal constitutional rights

were infringed." Commonwealth Edison Co. v. Illinois Commerce Comm'n,

(2001) (citing Citizens United For Responsible Energy Development, Inc. v. Illinois

Commerce Comm'n,

(1996)). " 'Substantial evidence' means more than a

mere scintilla; however, it does not have to rise to the level of a preponderance of the evidence."

Commonwealth Edison Co. v. Illinois Commerce Comm'n,

(2009) (citing

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Citizens Utility Board v. Illinois Commerce Comm'n,

(1997)). "It is

evidence that a 'reasoning mind would accept as sufficient to support a particular conclusion.' "

Commonwealth Edison Co. v. Illinois Commerce Comm'n,

(quoting

Citizens Utility Board,

).

¶ 47 The Act sets forth our standard of review: "The findings and conclusions of the

Commission on questions of fact shall be held prima facie to be true and as found by the

Commission; rules, regulations, orders or decisions of the Commission shall be held to be prima

facie reasonable, and the burden of proof upon all issues raised by the appeal shall be upon the

person or corporation appealing from such rules, regulations, orders or decisions." 220 ILCS

5/10B201(d) (West 2012). See also People ex rel. Madigan v. Illinois Commerce Comm'n,

, & 6 ("The Commission's factual findings are to be 'considered prima facie

true; its orders are considered prima facie reasonable; and the burden of proof on all issues raised

in an appeal is on the appellant.' " (quoting Commonwealth Edison Co. v. Illinois Commerce

Comm'n,

(2009))).

¶ 48 "Our courts give great deference to the Commission's decisions as they are ' "judgment[s]

of a tribunal appointed by law and informed by experience." ' " Commonwealth Edison Co. v.

Illinois Commerce Comm'n,

(2001) (quoting United Cities Gas Co. v.

Illinois Commerce Comm'n,

(1994), quoting Village of Apple River v. Illinois

Commerce Comm'n,

(1960)). The Commission is entitled to great deference

from a reviewing court because it is an administrative body possessing expertise in the field of

public utilities. Archer-Daniels-Midland Co. v. Illinois Commerce Comm'n,

(1998). "Our supreme court has held that deference to the Commission is 'especially appropriate

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in the area of fixing rates.' " Commonwealth Edison Co.,

(quoting

Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Comm'n,

(1960)).

When reviewing an order from the Commission, we therefore give deference to the Commission's

decision, in light of its expertise and experience in this area. Commonwealth Edison Co.,

.

¶ 49 Billing Determinants

¶ 50 The Commission argues that our previous decision in Commonwealth Edison Co.,

, regarding the 2011 Rate Case is dispositive of the first two issues on appeal,

including the first issue concerning billing determinants. ComEd, however, argues that our

decision in Commonwealth Edison Company was "based upon a different evidentiary record, a

different Commission Order, and different arguments by the Commission in defense of that

Order."

¶ 51 Commonwealth Edison Co.,

, involved Commission order No.

11-0721 for ComEd's 2011 Rate Case, which presented issues as to ComEd's formula rate for

2011. The present appeal involves Commission order No. 12-0321 for ComEd's 2012 Rate Case,

which presents issues as to ComEd's formula rate reconciliation for 2012. ComEd's position was

that the Commission's order in the 2011 Rate Case to adjust ComEd's billing determinants to

reflect the estimated increase in customers attributable to the 2011 projected new business plant

additions should not operate beyond the 2011 Rate Case order. The Attorney General, AARP,

CUB, and the Commission's staff disagreed and recommended that the Commission adopt an

upward adjustment or reconciliation to ComEd's 2011 weather-normalized billing determinants to

reflect the 2012 projected new business plant additions. The Commission agreed and held that

17 Nos. 1-13-0302 & 1-13-0493

the same billing determinants approach used in the 2011 Rate Case should be used in this case.

The Act specifies that the Commission may not, in a rate update proceeding, "consider or order any

changes to the structure or protocols of the performance-based formula rate approved" in an order

by the Commission. 220 ILCS 5/16-108.5(d) (West 2012). Thus, in the 2012 update

proceeding, the Commission could not consider any changes to the structure or protocols it had

already approved in the 2011 Rate Case order.

¶ 52 ComEd does not argue there was an error in the update aspect of this 2012 Rate Case.

Instead, ComEd argues, as it did in the 2011 Rate Case, that the Commission erred in its approved

formula rate and violated section 16-108.5(c)(4)(H) because the Act only allows "historical

weather normalized billing determinants," and "removes from the Commission any discretion" to

apply any other billing determinants, including customer growth due to plant additions. ComEd

also argues the Commission's adjustment to reflect projected new business plant additions, as it

also approved in the 2011 Rate Case, is arbitrary and capricious because the Commission did not

also consider other variables that would affect consumer demand. The Commission replies that

our decision in the 2011 Rate Case controls determination of these issues.

¶ 53 We agree with the Commission. These legal issues have already been determined by this

court and relitigation is barred by collateral estoppel. "Collateral estoppel is a branch of res

judicata that prohibits the relitigation of an issue actually decided in an earlier proceeding between

the same parties." Richter v. Village of Oak Brook,

, & 17 (citing Mabie

v. Village of Schaumburg,

(2006)). Collateral estoppel, or issue

preclusion, is "much narrower" than res judicata, however, "in that it prevents relitigation of issues

of law or fact that have previously been litigated and decided in an action that resulted in a final

18 Nos. 1-13-0302 & 1-13-0493

judgment on the merits involving the same parties or their privies." Gallaher v. Hasbrouk,

, & 21 (citing Du Page Forklift Service, Inc. v. Material Handling Services,

Inc.,

(2001), Schratzmeier v. Mahoney,

(1993), and

Dowrick v. Village of Downers Grove,

(2005)). "While res judicata

bars subsequent actions involving identical causes of action, the related doctrine of collateral

estoppel prevents relitigation of issues decided in earlier proceedings." (Emphasis added.)

Diotallevi v. Diotallevi,

, & 21 (citing Dowrick v. Village of Downers

Grove,

(2005)).

¶ 54 "The doctrine applies when a party participates in two separate and consecutive cases

arising on different causes of action and some controlling fact or question material to the

determination of both causes has been adjudicated against that party in the former case by a court

of competent jurisdiction." (Emphasis added.) People v. Hopkins,

(2009)

(citing People v. Tenner,

(2002), and People v. Moore,

(1990)). "[F]or collateral estoppel to apply: (1) the issue decided in the prior proceeding must

be identical to the one in the current suit; (2) the prior adjudication must have been a final

judgment on the merits; and (3) the party against whom the estoppel is asserted must have been a

party to, or must be in privity with a party to, the prior adjudication." Hope Clinic for Women,

Ltd. v. Flores,

, & 77 (citing In re A.W.,

(2008)).

¶ 55 Here, collateral estoppel applies to the first two issues raised by ComEd on appeal to the

extent ComEd makes the same arguments raised in the 2011 Rate Case. We note that this 2012

Rate Case is not an identical cause of action as the 2011 Rate Case. Rather, this 2012 Rate Case is

a rate update case. The Act requires that the formula "be updated annually with transparent

19 Nos. 1-13-0302 & 1-13-0493

information that reflects the utility's actual costs to be recovered during the applicable rate year."

220 ILCS 5/16-108.5(c) (West 2012). This 2012 Rate Case thus applies the same approved

formula from the 2011 Rate Case but, because it is an annual update, the actual costs and the

resulting rate is different. ComEd again raises the same legal issue concerning billing

determinants addressed by this court in our opinion in the 2011 Rate Case, where we determined

that the Act does not limit the Commission in rate-setting to only weather normalized billing

determinants. In our opinion in the 2011 Rate Case, we acknowledged that while "[t]he Act does

not specifically mention adjustments to performance-based rates for expected changes in the

number of customers, usage, or any other determinant of total sales, apart from weather

normalization" (Commonwealth Edison Co.,

, & 56), as the

Commission's staff pointed out, the Act directs the Commission to determine rates " 'subject to a

determination of prudence and reasonableness consistent with Commission practice and law.' "

Commonwealth Edison Co.,

, & 57 (quoting 220 ILCS 5/16-108.5(c)(4)

(West 2012)). We explicitly held that the Commission could use projected new business plant

additions, in addition to normalized weather billing determinants, and that ComEd failed to show

that the Commission violated the Act when it required an adjustment to ComEd's rates to take into

account expected growth in the number of customers it served. Commonwealth Edison Co.,

, & 57. We reiterate our prior holding. We underscore the fact that the Act

is permissive in providing that the Commission shall "[p]ermit and set forth protocols" (emphasis

added) for the historical weather normalized billing determinants. 220 ILCS 5/16-108.5(c)(4)(H)

(West 2012). The Act does not limit billing determinants to only historical weather normalized

billing determinants. This precise issue was already decided and ComEd is barred from

20 Nos. 1-13-0302 & 1-13-0493

relitigating it.

¶ 56 Our decision in the 2011 Rate Case also controls the related billing determinant legal issue

of whether the Commission is also required to take into account other customer usage factors in

establishing the appropriate rate and, in turn, ComEd's revenue requirement. In our opinion in the

2011 Rate Case, we also held that the Commission was not required to take into account any other

factors as billing determinants, such as an alleged decline in kWh usage, and that ComEd failed to

establish what the cause was for the decline in kWh usage. We held that ComEd did not meet its

burden of showing that the Commission's finding was contrary to the manifest weight of the

evidence, or that the Commission acted unreasonably when it ordered an adjustment to rates to

account for the expected increase in the number of customers. Commonwealth Edison Co.,

, & 58.

¶ 57 Thus, our opinion deciding the 2011 Rate Case settled the legal issues that the Commission

can use projected new business plant additions in establishing ComEd's rate, and the Commission

is not required to also account for usage without any proof of what the cause is for the change in

usage.

¶ 58 As to the factual findings specific to the 2012 Rate Case, as we have set forth above in our

standard of review, the Commission's findings are prima facie true and correct and it is ComEd's

burden on appeal to rebut that presumption. The Act provides: "The performance-based formula

rate approved by the Commission shall" "[p]ermit and set forth protocols, subject to a

determination of prudence and reasonableness consistent with Commission practice and law, for

* * * historical weather normalized billing determinants." 220 ILCS 5/16B108.5(c)(4)(H) (West

2012). The Act also directs the Commission to determine rates "subject to a determination of

21 Nos. 1-13-0302 & 1-13-0493

prudence and reasonableness consistent with Commission practice and law." 220 ILCS

5/16-108.5(c)(4) (West 2012).

¶ 59 In the 2011 Rate Case, we found, based on the evidentiary record before the Commission in

that case, that the Commission's "factual finding that ComEd did not show a cause for the

decrease, and the Commission could not project on the basis of ComEd's data whether ComEd

would likely experience further declines in sales per customer" was not against the manifest

weight of the evidence. Commonwealth Edison Co.,

, & 58.

¶ 60 Similarly here, although we acknowledge that this is a separate case and separate

proceeding with a different record, the evidentiary record similarly lacks support for ComEd's

contention that the Commission erred in not considering the future decline in kWh usage. The

Commission did not "refuse" to consider ComEd's alleged future changes in kWh sales. The

Commission again considered ComEd's evidence and argument regarding a decline in kWh sales.

And ComEd again could not show what the cause was or would be for any decline in usage and the

Commission again could not project on the basis of ComEd's data whether ComEd would likely

experience future declines in kWh usage per customer. The Commission found: "In this

proceeding, ComEd provides no evidence indicating why there is a decline in usage." The

Commission reasoned that, "[a]s the customer base of the billing determinants equation is a 'fixed

charge,' it is appropriate to insure that the customer base component is accurate and accounts for

expected customer growth so that customers are not charged an inflated rate." Commonwealth

Edison Co., Ill. Comm. Comm'n, Docket No. 12-0321 (Order Dec. 19, 2012) at p. 28.

¶ 61 ComEd's argument ignores the fact that the Commission had previously set rates by

recognizing both growth in the number of customers and an increase in kWh sales. In this case,

22 Nos. 1-13-0302 & 1-13-0493

the Commission did not also find any projected increase in kWh sales but, rather, only an increase

in the number of customers due to the plant growth projection. But, because there was

insufficient evidence regarding the decline in kWh sales, the Commission could not definitively

find a decline in kWh sales such that the formula rate should be impacted. The Commission

concluded as follows:

"Mr. Effron did not recommend increasing the total amount of kWh sales billing

determinants in light of the overall decline in ComEd's total kWh sales. *** While the

Commission has previously recognized growth in both the number of customers and kWh

sales, such a determination is inappropriate in this proceeding based on record evidence.

There is insufficient evidence in this proceeding to find that a decline in kWh sales affects

the number of customers amongst whom the revenue requirement should be spread, and as

such there is insufficient evidence to determine that this decline should offset the increase

in billing determinants that reflects New Business." Commonwealth Edison Co., Ill.

Comm. Comm'n, Docket No. 12-0321 (Order Dec. 19, 2012) at pp. 29-30.

¶ 62 On this point, the Commission appropriately considered only the increase in the number of

customers, as ComEd failed to provide enough information on a decrease in kWh usage to change

the rate formula. We affirm the Commission's order regarding billing determinants in setting

ComEd's rate.

¶ 63 Cost Allocation

¶ 64 ComEd next argues that the Commission erred in its order in this rate case because it

continues to refuse ComEd's proposed new allocation methodologies from the 2011 Rate Case.

In the 2011 Rate Case, ComEd proposed new methodologies for allocating two categories of

23 Nos. 1-13-0302 & 1-13-0493

shared costs: general and intangible plant costs; and real estate taxes. According to ComEd, its

methodologies were consistent with the methodologies the FERC had used in setting ComEd's

interstate transmission rates and would have resulted in the appropriate recovery of the full amount

of its reasonable and prudent intrastate distribution costs. But, according to ComEd, the

Commission rejected ComEd's methodologies and adopted methodologies inconsistent with the

FERC's which resulted in some of its costs being "trapped" and unrecoverable because the FERC

ruled that certain costs could not be allocated to interstate transmission, and the Commission ruled

that those costs could not be allocated to intrastate distribution either. In this 2012 Rate Case,

ComEd was required to submit a rate filing that conformed with the Commission's allocation

rulings in the 2011 Rate Case. ComEd again argues that the Commission's methodology for

allocating certain costs to intrastate distribution violated federal and state law.

¶ 65 As in the 2011 Rate Case, ComEd again reiterates the same arguments regarding

allocation: (1) that the Commission is required to follow the FERC's allocation methodologies

under Illinois law, specifically that section 16-108(c) of the Act (220 ILCS 5/16-108(c) (West

2012)) requires the Commission to set rates that will allow ComEd to fully recover all costs related

to both interstate transmission and intrastate distribution; and (2) that the federal constitution's

supremacy clause and the filed rate doctrine bar the Commission from allocating common costs in

a manner inconsistent with the FERC's allocation.

¶ 66 We note at the outset that in our decision in the 2011 Rate Case, in addressing these same

allocation arguments, we held generally that ComEd "has not met its burden of proving that the

Commission violated either federal or state law or acted unreasonably in its allocation of general

wages and plant costs [and] real estate taxes." Commonwealth Edison Co., 2014 IL App (1st)

24 Nos. 1-13-0302 & 1-13-0493

122860, & 61. Thus, to this extent, relitigation of the general issue of allocation is barred by

collateral estoppel.

¶ 67 To the extent that the specific arguments under state and federal law may not have been

actually addressed in our previous opinion in Commonwealth Edison Co.,

, because ComEd is raising them again, we address them here. These specific arguments

concern: (1) section 16-108(c) of the Act; and (2) federal preemption and the filed rate doctrine.

¶ 68 First, ComEd's reliance on section 16-108(c) not only is not on point for the formula rate,

but ComEd also does not include the full text of that provision, misleadingly suggesting that

section 16-108(c) requires the Commission to allow a utility to recover all the costs of providing

delivery services in whatever manner suggested by the utility. This is not the case. The full text

of section 16-108(c) provides as follows:

"(c) The electric utility's tariffs shall define the classes of its customers for purposes

of delivery services charges. Delivery services shall be priced and made available to all

retail customers electing delivery services in each such class on a nondiscriminatory basis

regardless of whether the retail customer chooses the electric utility, an affiliate of the

electric utility, or another entity as its supplier of electric power and energy. Charges for

delivery services shall be cost based, and shall allow the electric utility to recover the costs

of providing delivery services through its charges to its delivery service customers that use

the facilities and services associated with such costs. Such costs shall include the costs of

owning, operating and maintaining transmission and distribution facilities. The

Commission shall also be authorized to consider whether, and if so to what extent, the

following costs are appropriately included in the electric utility's delivery services rates:

25 Nos. 1-13-0302 & 1-13-0493

(i) the costs of that portion of generation facilities used for the production and absorption of

reactive power in order that retail customers located in the electric utility's service area can

receive electric power and energy from suppliers other than the electric utility, and (ii) the

costs associated with the use and redispatch of generation facilities to mitigate constraints

on the transmission or distribution system in order that retail customers located in the

electric utility's service area can receive electric power and energy from suppliers other

than the electric utility. Nothing in this subsection shall be construed as directing the

Commission to allocate any of the costs described in (i) or (ii) that are found to be

appropriately included in the electric utility's delivery services rates to any particular

customer group or geographic area in setting delivery services rates." (Emphases

added.) 220 ILCS 5/16-108(c) (West 2012).

¶ 69 The Act specifies that the formula rate shall be computed based on a utility's actual cost, as

reported to the FERC on FERC Form 1 for the prior year:

"The utility shall file, together with its tariff, final data based on its most recently

filed FERC Form 1, plus projected plant additions and correspondingly updated

depreciation reserve and expense for the calendar year in which the tariff and data are filed,

that shall populate the performance-based formula rate and set the initial delivery services

rates under the formula." 220 ILCS 5/16-108.5(c) (West 2012).

¶ 70 Thus, the actual costs reported to the FERC the prior year are used by the Commission to

set the revenue requirement for participating utilities under the Act. See 220 ILCS

5/16-108.5(d)(1) (West 2012). ComEd does not explain how or why this actual cost reporting

mechanism to set rates is inadequate, and why the Commission would have to take the additional

26 Nos. 1-13-0302 & 1-13-0493

step of ensuring its allocation methodologies are exactly the same as the ones used by the FERC.

¶ 71 Section 16-108.5(c) further provides: "Nothing in this Section is intended to allow costs

that are not otherwise recoverable to be recoverable by virtue of inclusion in FERC Form 1." 220

ILCS 5/16-108.5(c) (West 2012). Thus, the Commission is not required to allow costs solely

because the costs are included at the FERC.

¶ 72 ComEd's assertion that "the Commission has little discretion with respect to

functionalizing common costs" is squarely refuted by the Act. Rather, the Act directs the

Commission to determine rates "subject to a determination of prudence and reasonableness

consistent with Commission practice and law." 220 ILCS 5/16B108.5(c)(4) (West 2012).

Section 108.5(c)(4)(I) unequivocally directs the Commission to set forth protocols, consistent with

its own practice and law, regarding the allocation of common costs:

"(c) *** The performance-based formula rate approved by the Commission shall do

the following:

***

(4) Permit and set forth protocols, subject to a determination of prudence

and reasonableness consistent with Commission practice and law, for the

following:

***

(I) allocation methods for common costs." 220 ILCS

5/16-108.5(c)(4)(I) (West 2012).

¶ 73 This is what the Commission did; it set the allocation method consistent with Commission

practice from the prior year's order. ComEd does not dispute that the Commission's allocation

27 Nos. 1-13-0302 & 1-13-0493

was consistent with its previous allocation.

¶ 74 ComEd also reiterates its second allocation argument in this case that under the United

States Constitution's supremacy clause and the filed rate doctrine, the Commission may not

allocate costs or set rates in a manner that is inconsistent with the FERC's cost allocations and

rates, citing to Nantahala Power & Light Co. v. Thornburg,

(1986),

Mississippi Power & Light Co. v. Moore,

(1988); Entergy Louisiana, Inc. v.

Louisiana Public Service Comm'n,

(2003); and General Motors Corp. v. Illinois

Commerce Comm'n,

(1991). According to ComEd's brief on appeal before

this court, "when [the] FERC has issued a Transmission Formula Rate ('TFR') that allocates a

certain portion of common costs to transmission, then the Commission must allocate the remaining

portion of those costs to distribution," so no costs could possibly be trapped. (Emphasis in

original.)

¶ 75 We clarify that the filed rate doctrine does not stand for the broad proposition stated by

ComEd and is not applicable in this case. The filed rate doctrine is a doctrine that merely holds

that a state agency cannot disallow recovery of FERC-approved federal costs from ratepayers.

The FERC has exclusive jurisdiction over rates to be charged electric utility's interstate wholesale

customers. 16 U.S.C. ' 824(b) (2012). Pursuant to the filed rate doctrine, the Commission is

preempted from disallowing FERC-approved costs from ratepayers. "[A] state utility

commission setting retail prices must allow, as reasonable operating expenses, costs incurred as a

result of paying a FERC-determined wholesale price." Nantahala,

. Once the

FERC files a rate, that rate must be passed through to ratepayers and state agencies cannot disallow

this cost. The filed rate doctrine concerns only the passing through of federal costs to retail rates.

28 Nos. 1-13-0302 & 1-13-0493

It operates as a bar against state agencies "trapping" only federal wholesale costs by disallowing

recovery of FERC-approved costs from ratepayers. As the United States Supreme Court

explained, "a State may not exercise its undoubted jurisdiction over retail sales to prevent the

wholesaler-as-seller from recovering the costs of paying the FERC-approved rate." Nantahala,

. See also General Motors Corp.,

(explaining that the filed rate

doctrine "protects distributors from the trapping of wholesale costs"). The Court pointed out

however, as many filed rate doctrine cases have observed, that "an increase in FERC-approved

wholesale rates need not lead to an increase in retail rates" because the company may experience

savings in other areas which offset this FERC rate increase. Nantahala,

.

¶ 76 The filed rate doctrine does not stand for the proposition that a state agency must approve

all remaining costs beyond FERC interstate transmission costs and allocate these costs to intrastate

distribution, as argued by ComEd. As explained by the Commission, the FERC-approved

transmission costs are set forth in FERC-approved rates and FERC-filed tariffs, which are in fact

already "passed through" to ComEd's customers through a separate line-item charge on their

monthly bills. ComEd makes no reply to this fact. The filed rate doctrine was not violated by the

Commission and simply is not implicated here.

¶ 77 As the Commission argues, the cases cited by ComEd are distinguishable because they

involve passing the cost of wholesale power through to retail rates to allow a distributor to recover

its federal wholesale costs, and not the allocation of costs between transmission and distribution.

None of ComEd's citations involve allocation of interstate and intrastate delivery costs within the

same utility company.

¶ 78 We further determine and highlight the fact that the different allocation methodologies

29 Nos. 1-13-0302 & 1-13-0493

were a result of ComEd's own choice. ComEd argues we must give deference to the FERC's

allocation methodologies pursuant to the Supremacy Clause of the United States Constitution, but

in fact ComEd urged those methodologies at the FERC. In our decision in the 2011 Rate Case,

where ComEd first urged the change in allocation methodology, we noted evidence by ComEd that

it filed documents with the FERC in which ComEd allocated a greater percentage of its costs of

general wages and plant, including real estate taxes, to distribution, thereby reducing the price for

the electricity ComEd sold to out-of-state purchasers. Commonwealth Edison Co.,

, & 61. Thus, ComEd sought the different methodology with the FERC for allocating

interstate transmission costs. As the Commission points out, ComEd was well aware of the

existing allocation methodology for rate-setting with the Commission. As the Commission aptly

argues:

"That ComEd elected to urge an allegedly different cost allocation method at the FERC to

allocate transmission costs attributable to the interstate jurisdiction does not control or

otherwise limit the Commission's authority to independently establish the portion of

common costs attributable to the Illinois jurisdiction. If ComEd had concerns that

allegedly incompatible cost allocation methods would not allow it to fully recover costs

allocated between the two regulatory jurisdictions, then it should have applied its

long-standing Commission-approved cost allocation methodologies to allocate interstate

transmission costs in proceedings at the FERC."

¶ 79 ComEd itself could have ensured consistent methodologies by urging methodologies with

the FERC that were consistent with the Commission's methodologies instead of urging the

adoption of different methodologies. We thus clarify that we reject ComEd's claim of error by the

30 Nos. 1-13-0302 & 1-13-0493

Commission as a result of Com Ed's own selection of methodologies it urged with the FERC for

allocation of common costs.

¶ 80 To the extent that ComEd argues that error in allocation methodologies is shown based on

a different record in this case, litigation of the allocation issue is not barred; however, we hold that

ComEd has again failed to sustain its burden of proving the Commission's findings and

determination were in error. Though ComEd repeatedly reiterates that some of its general and

intangible plant costs and real estate tax costs are "trapped," ComEd still does not shed light on the

amount of those trapped costs. The Commission rejected ComEd's proposal to use the "wages

and salaries" allocator for general and intangible plant costs, as ComEd had urged the FERC to

adopt in its operative transmission formula rate. Under the wages and salaries allocator, the

percentage of total wages going to personnel providing and supporting interstate transmission

services versus intrastate distribution services is analyzed. Instead, according to ComEd, the

Commission "used several different methodologies for allocating different aspects of G&I Plant."

In its briefing on appeal in this case ComEd does not explain the various methodologies used by

the Commission for general and intangible plant costs and instead cites to the Commission's order

in the 2011 Rate Case. The Commission's 2011 Rate Case order explained that the current

allocation approach was a combination of general functional allocators and direct assignment, but

ComEd proposed to use a single generic functional allocator based on wages and salaries,

allegedly to be consistent with the FERC. The Commission noted however, as argued by the

CUB and the City of Chicago, that ComEd relied on two FERC decisions from 1978 and 1988 and

that "there is no change with respect to the FERC that might have arisen since the Commission's

decision in Docket 10-0467 that would justify a substantial increase in the distribution revenue

31 Nos. 1-13-0302 & 1-13-0493

requirement under the Formula Rate Plan." The Commission found that "ComEd points to no

fact in its argument indicating that there actually is such a 'trapping' between the two jurisdictions."

ComEd again provides no information regarding what the amount of allegedly trapped costs is or,

indeed, if there is any difference in general and intangible plant costs under the differing allocation

analyses.

¶ 81 Regarding real estate taxes, the Commission rejected ComEd's proposal to use a "net plant

allocator," as the FERC had done, adopting the proposed method of ComEd. The net plant

allocator, according to ComEd, reflects the relative levels of investment in interstate transmission

versus intrastate distribution. Instead, the Commission used the prior method of allocating real

estate taxes based on an analysis of ComEd's expenditures on general communication equipment.

This was the method previously endorsed by ComEd. ComEd does not provide any dollar

amount "trapped" figure or even a purported percentage of allegedly "trapped" costs. Regarding

support in the record, ComEd again merely cites to the Commission's order in the 2011 Rate Case.

But the Commission's order recites that, based on ComEd's own review of the prior allocation

methodology for real estate taxes in the 2010 rate case (Docket No. 10-0467), it "proposed a

refinement in the methodology that better syncs with FERC and provides a more reasonable

portrayal of the overall relationship between the investment made in transmission and

distribution." There is no indication of any actual calculation or proof of any alleged trapped

costs. At best, we merely have ComEd's assertion that it now believes differing methodologies

for the allocators are better.

¶ 82 We cannot discern if any amount of costs is "trapped" as ComEd argues. We will not

scour the record to attempt to find what those costs are. The appellant "has the burden of showing

32 Nos. 1-13-0302 & 1-13-0493

error; any doubt arising from incompleteness of the record will be resolved against the appellant."

People v. Kirkpatrick,

(1992). ComEd has utterly failed to sustain its

burden on appeal. We therefore affirm the Commission's order.

¶ 83 2011 Rate Case Expenses

¶ 84 Finally, ComEd argues that the Commission erred in not granting its attorney fees and

expenses for the 2011 Rate Case as one of its costs in the rate formula under the Act in this rate

case. Except for $200,000 paid as a statutory filing fee, the entirety of ComEd's 2011 Rate Case

expenses, $1,544,161, was disallowed. As this issue concerns the fees and expenses for the 2011

Rate Case, we are addressing this issue for the first time.

¶ 85 "Illinois courts have allowed utilities to recover rate case expense because '[t]he costs

incurred by a utility to prepare and present a rate case are properly recoverable as an ordinary and

reasonable cost of doing business.' " People ex rel. Madigan v. Illinois Commerce Comm'n,

, & 13 (quoting Central Illinois Public Service Co. v. Illinois Commerce

Comm'n,

(1993) (citing Du Page Utility Co. v. Illinois Commerce

Comm'n,

(1971)). Section 16-108.5(c)(4)(E) provides that rate case expenses are

properly recoverable through the EIMA performance-based formula rate and that the Commission

is empowered to:

"(4) Permit and set forth protocols, subject to a determination of prudence and

reasonableness consistent with Commission practice and law, for the following:

***

(E) recovery of the expenses related to the Commission proceeding under

this subsection (c) to approve this performance-based formula rate and initial rates

33 Nos. 1-13-0302 & 1-13-0493

or to subsequent proceedings related to the formula, provided that the recovery

shall be amortized over a 3-year period; recovery of expenses related to the annual

Commission proceedings under subsection (d) of this Section to review the inputs

to the performance-based formula rate shall be expensed and recovered through the

performance-based formula rate[.]" 220 ILCS 5/16-108.5(c)(4)(E) (West 2012).

¶ 86 Pursuant to section 16-108.5(c)(4)(E), ComEd requested that it be allowed to recover

$1,544,161 for expenses in the 2011 Rate Case. Section 9-229 of the Act now requires that the

Commission "specifically assess the justness and reasonableness of any amount expended by a

public utility to compensate attorneys or technical experts to prepare and litigate a general rate case

filing." 220 ILCS 5/9-229 (West 2012). In interpreting this relatively new section of the Act, in

People ex rel. Madigan v. Illinois Commerce Comm'n, 2011 Ill App (1st) 101776, we held that,

while the Commission previously only needed to make sufficient findings to allow for informed

judicial administrative review under section 10-201(e)(iii) (220 ILCS 5/10-201(e)(iii) (West

2008)), section 9-229 created a requirement for more specific findings. We held that by requiring

the Commission to "specifically assess the justness and reasonableness" of "any amount" paid by a

utility for legal and expert fees and to "expressly address" this issue in its order, the Act mandated

a more detailed finding than what was previously generally required of the Commission.

(Internal quotation marks omitted.) People ex rel. Madigan, 2011 Ill App (1st) 101776, & 47.

¶ 87 ComEd argues, however, that in Madigan this court "did not identify what evidence would

be sufficient to satisfy the evidentiary standard." This argument is not well-grounded. The

Commission's order in this 2012 Rate Case also did not adopt a "new" or "erroneous" evidentiary

standard as ComEd contends. Both a prior order by the Commission in another rate case in which

34 Nos. 1-13-0302 & 1-13-0493

ComEd was a party and the decision by this court in People ex rel. Madigan provided the

applicable standard. To this point, we quote at length the Commission's detailed explanation of

the evidentiary standard regarding approval of rate case legal fees and expenses as follows:

"In Docket 10-0467, a ComEd rate case, the Commission addressed the issue of

what evidence satisfies the requirements in Section 9-229 of the Public Utilities Act. This

Commission concluded that the parties should adhere to the well-established body of case

law on the subject, which, very generally, requires proof of what services were performed,

the necessity for those services, and proof that the rates at issue for the services are

reasonable for the services performed. The Commission also concluded that a rulemaking

should commence, which should have placed all concerned parties, including ComEd, 'on

the same page' regarding that body of law. In that rulemaking proceeding, an extensive

amount of information as to the documentation that is required by the body of law that was

cited in the Docket 10-0467 Order was provided to all of the parties, including ComEd.

Docket 10-0467, Final Order of May 24, 2011 at 81-86; Docket 11-0711, generally,

regarding the rulemaking and regarding what that body of law requires.

With regard to attorney's fees, in that Order the Commission noted that accountants

do not necessarily know what lawyers do or should be doing on behalf of their clients.

Docket 10-0467, final Order of May 24, 2011, at 81. This determination on the part of the

Commission should have made it obvious to all of the parties, including ComEd, that

merely tendering information in discovery, but not placing it in the evidentiary record, does

not satisfy the legal requisites in the applicable body of law regarding attorney's fees. Tr.

129. This is true because when there is no evidence of record, the Commission has no

35 Nos. 1-13-0302 & 1-13-0493

evidence upon which it can determine that the rate case expenditures were just and

reasonable, as required by Section 9-229 of the Public Utilities Act.

Subsequent to the final Order in Docket 10-0467, on December 9, 2011 the Illinois

Appellate Court ruled in a matter involving another utility that, in order to satisfy Section

9-229 of the Act, the party seeking attorney's fees and expert witness fees must provide

evidence that specifies: (1) the services performed; (2) by whom they were performed;

(3) the time expended; and (4) the hourly rate charged. In that decision, the Illinois

Appellate Court cited the very same body of case law that the Commission Order in Docket

10-0467 referred to above. The Appellate Court then remanded the matter to the

Commission for a determination based upon these criteria. People ex. rel. Madigan v.

Illinois Commerce Comm., 2011 Ill. App. (1st) 101776, at 24-26 *** (Ill. App. 1st Dist.

2011) [sic]. At that point in time, this Commission became required to follow the body of

law cited in the Appellate opinion and in the final Order in Docket 10-0467 [footnote 9]

Notably, even a cursory examination of the body of case law cited in the final Order in

Docket 10-0467 and in People ex. rel. Madigan, cited above, would reveal that what is

necessary to satisfy that body of law is evidence as to what the lawyers and expert

witnesses did, in the case file, for the trier of fact to view, in order to make a decision based

on that evidence. See, e.g., City of Chicago v. Ill. Commerce Comm.,

,

469-472 *** (1st Dist. 1989); Johnson v. Thomas, 342 [I]ll. App. 3d 382, 400-404 *** (1st

Dist. 2003); Guerrant v. Roth,

, 267-73 *** (1st Dist. 2002); Watson v.

South Shore Nursing and Rehabilitation Center,

, 12-14 ***."

Commonwealth Edison Co., Ill. Comm. Comm'n, Docket No. 12-0321 (Order Dec. 19,

36 Nos. 1-13-0302 & 1-13-0493

2012) at pp. 53-54.

¶ 88 The Commission also noted in its order, in footnote 9, that "[o]f course, even before the

Appellate Court decision, the attorneys were required to follow the very specific requirements in

the code of ethics for attorneys. See S. Ct. Rule 1.5. Rule 1.5 of the Illinois Rules of

Professional Conduct of 2010 provides, in relevant part, the following:

"(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable

fee or an unreasonable amount for expenses. The factors to be considered in determining

the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved,

and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the

services; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for

which the client will be responsible shall be communicated to the client, preferably in

writing, before or within a reasonable time after commencing the representation, except

37 Nos. 1-13-0302 & 1-13-0493

when the lawyer will charge a regularly represented client on the same basis or rate. Any

changes in the basis or rate of the fee or expenses shall also be communicated to the client."

Ill. R. Prof. Conduct R. 1.5 (eff. Jan. 1, 2010).

¶ 89 Thus, even before the decision in People ex rel. Madigan, the Illinois Supreme Court Rules

of Professional Conduct set forth factors concerning what would be considered in determining the

reasonableness of attorney's fees, including the time and labor required and the fee customarily

charged in the locality for similar legal services.

¶ 90 Instead of following the guidance that was provided by both the Commission and this court

regarding the inclusion of fees in setting the revenue requirement and rate, ComEd apparently

approached the proceedings in this 2012 Rate Case as "business as usual," when both the

Commission and this court have clearly stated otherwise.

¶ 91 ComEd's evidence in support of its 2011 Rate Case legal expenses consisted entirely of the

testimony of Martin Fruehe, the manager of ComEd's revenue policy department and a one-page

spreadsheet showing $1,979,831 in expenses for the 2011 Rate Case, adjusted to exclude $410,000

as a year-end accrual to be amortized and reflected in ComEd's 2012 reconciliation case, which

then yielded $1,544,16, or $523,633 amortized over a three-year period. The spreadsheet

indicated only totals and various entities. Regarding the spreadsheet, the Commission found as

follows:

"[T]he evidence that ComEd presented regarding the amount of rate case expense that it is

requesting, $1,544,161, is a scant one-page spreadsheet that merely lists totals and various

entities. ComEd. Ex. 3.9. There is no proof as to what these entities did to earn their

fees, and no proof as to what time was expended, or as to the rates charged consumers for

38 Nos. 1-13-0302 & 1-13-0493

various persons or entities, not to mention the reasonableness of those rates. This

document does not even mention what law firms were paid. In fact, this document does

not even establish that the services were performed in conjunction with any particular

proceeding.

Tr. 165-66166. There are no invoices in the record from any of the

entities on ComEd Ex. 3.9. Tr. 166.

***

The Commission additionally notes that it appears that several of the items listed on

ComEd Ex. 3.9 appear to be improperly included overhead expenses. *** Overhead

costs, generally, are not recoverable under the body of case law concerning expert witness

fees and attorney's fees that govern here. Johnson v. Thomas,

,

402-04 *** (1st Dist. 2003), noting that routine charges are included in overhead and

therefore not recoverable as a cost of litigation; see also Harris Trust & Savings Bank v.

American National Bank & Trust Co.,

, 599 *** (1st Dist. 1992). In

fact, ComEd Ex. 3.9 does not state what services were performed by these entities."

Commonwealth Edison Co., Ill. Comm. Comm'n, Docket No. 12-0321 (Order Dec. 19,

2012) at pp. 54-57.

¶ 92 The Commission found that the only evidence regarding the rate case expenses was

Fruehe's testimony, but the Commission found that Fruehe's testimony "does not even approach

establishing the justness and reasonableness of the $1,544,161 of fees that ComEd seeks to include

in rates."

¶ 93 We agree. Fruehe testified that ComEd reviewed each invoice that it received for the

amounts listed on the spreadsheet for accuracy and reasonableness. Fruehe testified that in his

39 Nos. 1-13-0302 & 1-13-0493

opinion ComEd's 2011 Rate Case expenses were prudently incurred and reasonable. Fruehe

based his opinion on his familiarity with ComEd rate case expenses for the past several rate cases,

including flat fee arrangements used in 2011, as well as his working relationship with Exelon

Business Services Company attorneys responsible for negotiating fee arrangements. Fruehe

testified that the ComEd attorneys "are always looking for innovative proposals and methods to

reduce costs and who ensure that outside counsel and other service providers are responsive to that

goal."

¶ 94 Such testimony does nothing to assist the Commission in determining whether specific

amounts expended for attorney fees were just and reasonable. Based on the extremely vague

testimony by ComEd in this case regarding the 2011 Rate Case expenses and legal fees, we have

no difficulty determining that the Commission correctly concluded that it could not "assess the

justness and reasonableness of any amount expended by" ComEd "to compensate attorneys" for its

2011 Rate Case filing. 220 ILCS 5/9-229 (West 2012). The evidence proffered by ComEd

before the Commission regarding its attorney fees does not inform anyone of the "justness and

reasonableness" of its fees. There was no evidence as to specific amounts in fees, what each

amount was for, the amount of time that was expended, the rates charged, or the reasonableness of

those rates. Fruehe's testimony did not establish what law firms were paid or that the services

were performed in any particular proceedings.

¶ 95 ComEd argues that the Act mandates that once a utility establishes a prima facie case that

certain costs are reasonable, the Commission may "enter upon a hearing concerning the prudence

and reasonableness of the costs incurred by the utility," and that during the hearing "each objection

[to the reasonableness of costs] shall be stated with particularity and evidence provided in support

40 Nos. 1-13-0302 & 1-13-0493

thereof, after which the utility shall have the opportunity to rebut the evidence." 220 ILCS

5/16-108.5(d) (West 2012). But here the "evidence" of fees presented is a far cry from a prima

facie showing of reasonableness of fees and expenses. There was essentially no evidence

concerning the actual fees. Thus, there was no evidence of particular fees to even object to with

any particularity.

¶ 96 ComEd also argues that its fees and expenses should have been allowed because no party

challenged its fees and expenses as unreasonable. But we are unpersuaded by the fact that the

Commission's staff investigated the attorney's fees and expenses at issue and agreed that the fees

and expenses were reasonable. Nothing in the Act provides that the Commission's staff's

recommendations are to be given any weight on this issue, either by the Commission or by us on

review of the Commission's order. The Act specifically provides that the Commission must hear

and decide the prudence and reasonableness of fees. 220 ILCS 5/16-108.5(d) (West 2012). The

Commission determined that the record was devoid of information establishing that payment to the

entities was just and reasonable. We review only the Commission's determination and the

evidence it relied on before it. We agree with the Commission's findings and conclusions which

are considered prima facie true and the Commission's decision which is considered prima facie

reasonable. ComEd failed to carry its burden of proof to rebut these prima facie findings and

decision. See 220 ILCS 5/10-201(d) (West 2012).

¶ 97 We are also unpersuaded that the Commission erred in refusing to allow ComEd an

opportunity to "supplement" the evidentiary record by introducing evidence of fees after the fact.

Before the Commission issued its final order, ComEd had filed a motion to supplement the record

to introduce discovery materials in response to requests from the Commission's staff which,

41 Nos. 1-13-0302 & 1-13-0493

according to ComEd, "included 221 pages of invoices and other documents supporting the

reasonableness of ComEd's expenses, and an affidavit, which declared that ComEd's costs of

litigating the 2011 Rate Case were reasonable." The Act expressly provides:

"The Commission's determinations of the prudence and reasonableness of the costs

incurred for the applicable calendar year shall be final upon entry of the Commission's

order and shall not be subject to reopening, reexamination, or collateral attack in any other

Commission proceeding, case, docket, order, rule or regulation, provided, however, that

nothing in this subsection (d) shall prohibit a party from petitioning the Commission to

rehear or appeal to the courts the order pursuant to the provisions of this Act." 220 ILCS

5/10-201(d) (West 2012).

¶ 98 ComEd argues that it moved to supplement the record before the final order, but nothing in

the Act requires reopening the proofs after the hearing had already concluded. We note that,

generally, a decision to reopen the proofs is discretionary. See A-Tech Computer Services, Inc. v.

Soo Hoo,

(1993) (the decision to reopen a case to allow the introduction

of additional evidence rests within the discretion of the trial court). ComEd was given a full and

fair opportunity to present its evidence. As the Commission found, "ComEd was afforded ample

opportunity to present evidence on the subject. It chose to present virtually no evidence on the

subject." As the administrative law judges pointed out, ComEd provided the Commission with no

explanation as to why it could not have presented this evidence at the evidentiary hearing.

¶ 99 Furthermore, the administrative law judges reviewed the documents ComEd sought to

enter into the record in its motion to supplement and found that many of the documents do not

establish what services were actually performed, or included impermissible overhead expenses,

42 Nos. 1-13-0302 & 1-13-0493

and many entries were unrelated to the 2011 Rate Case and instead related to other matters.

¶ 100 We therefore affirm the portion of the Commission's order allowing only $200,000 paid as

a statutory filing fee in costs and denying the remainder of fees and expenses sought by ComEd.

¶ 101 CONCLUSION

¶ 102 We find that ComEd did not meet its burden of showing error in any of the contested

rulings. The billing determinants and cost allocation legal issues in this appeal have already been

determined in the 2011 Rate Case, and we follow our opinion in Commonwealth Edison Co. v.

Illinois Commerce Comm'n,

. Relitigation of the merits of those legal

issues is barred by collateral estoppel. Regarding the factual findings, ComEd has failed to

sustain its burden of rebutting the prima facie presumption that the Commission's factual findings

are correct. ComEd also has not shown error in the Commission's ruling denying the 2011 Rate

Case expenses. Accordingly, we affirm the Commission's order.

¶ 103 Affirmed.

43