2016 IL App (1st) 150425
FOURTH DIVISION August 11, 2016
No. 1-15-0425
COMMONWEALTH EDISON COMPANY, ) ) Petitioner-Appellant, ) On Petition for ) Administrative Review v. ) from the Illinois Commerce ) Commission THE ILLINOIS COMMERCE COMMISSION, THE ) PEOPLE OF THE STATE OF ILLINOIS ex rel. THE ) ATTORNEY GENERAL OF THE STATE OF ILLINOIS, ) ICC Docket No. 14-0316 and THE CITIZENS UTILITY BOARD, ) ) Respondents, ) ) (The Illinois Commerce Commission, ) ) Respondent-Appellee). )
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Commonwealth Edison Company (ComEd) seeks direct appellate review of the final
order of the Illinois Commerce Commission (Commission) which defined the term “formula rate
structure” for purposes of sections 16-108.5(c) and (d) of the Public Utilities Act (Act) (220
ILCS 5/16-108.5(c), (d) (West 2012)). This definition essentially determines which changes to
the formula rate may be made in annual formula rate update (FRU) proceedings and which
changes must be made in separate proceedings under section 9-201 of the Act (220 ILCS 5/9-201
(West 2012)). In the proceedings below, ComEd and the Commission staff posed competing 1-15-0425
definitions of the term “formula rate structure.” Specifically, ComEd argued that the term should
be defined to mean all of the schedules and appendices that it uses to calculate its revenue
requirement, whereas the Commission staff argued that it should include only two specific
schedules—Schedules FR A-1 and FR A-1 REC—which reflect the format and organization of
major elements of ComEd’s revenue requirement. The Commission agreed with its staff, and
ComEd appeals that decision, claiming that it is contrary to law, not supported by substantial
evidence, contrary to the manifest weight of the evidence, and arbitrary, capricious, and
unreasonable.
¶2 This action began on April 16, 2014, when ComEd, a “participating utility” under section
16-108.5 of the Act, filed a petition pursuant to sections 16-108.5(c) and 9-201 of the Act
requesting that the Commission “approve a housekeeping revision and a compliance change to
its delivery service rate formula.” ComEd alleged that the housekeeping change would “make the
formula more readily understood” and the compliance change was necessary to “effectuate a rate
formula ruling in the Commission’s *** 13-0318 [order].” On August 19, 2014, the Commission
entered an interim order approving the housekeeping change, but denying the compliance change
as unnecessary. The interim order also initiated a “Phase 2” to the proceedings, during which the
Commission was to determine, among other things that are not the subject of this appeal, what
constitutes the formula rate’s structure and protocols, and whether changes to the schedules,
appendices, and work papers that support Schedules FR A-1 and FR A-1 REC could be changed
only in section 9-201 proceedings.
¶3 An evidentiary hearing was conducted on September 29, 2014, during which the parties
presented competing written testimony. Theresa Ebrey testified that she is a certified public
accountant (CPA) in the accounting department of the financial analysis division of the Illinois
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Commerce Commission. Ms. Ebrey recommended that the Commission define “formula rate
structure” to mean “the Commission approved tariff set forth in [ComEd] tariffs as Rate DSPP,
Tariff Sheet Nos. 417-437 which contain Schedules FR A-1 and FR A-1 REC.” She further
recommended that the Commission find that “only changes to Schedules FR A-1 and FR A-1
REC require Commission approval through a Section 9-201 filing.”
¶4 Ms. Ebrey testified that it was her “opinion that by approving only Schedules FR A-1 and
FR A-1 REC for Rate [Delivery Service Pricing and Performance (DSPP)] as the formula rate
tariff in its Order in Docket No. 11-0721, the Commission effectively defined the ‘formula rate
structure’ to be limited to those two formula rate schedules.” She understood that:
“ComEd’s formula rate structure approved by the Commission to
be set forth in the Rate DSPP tariff as Tariff Sheet Nos. 417–437
that were approved by the Commission in Docket No. 1100721
and later revised in Docket No. 13-0386, the filing implementing
the requirements of SB-9 (P.A. 98-0015). The formats for only two
schedules are included within those tariff sheets, Schedules FR A-1
(Net Revenue Requirement Computation on Sheet Nos. 423–424)
and FR A-1 REC (Revenue Requirement Reconciliation
Computation on Sheet No. 425). Additional schedules, appendices
and workpapers are listed by number and name on Sheet Nos. 426
and 427, but no specific information regarding what is to be
included on those ancillary documents is presented in the Rate
DSPP tariff, outside of titles for those documents.”
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Ms. Ebrey further stated that it was her understanding “that the Commission does not consider
the other supporting schedules not specifically set forth in the approved formula rate tariffs” to
be “an ‘approved’ document for purposes of the formula rate update cases.”
¶5 Ms. Ebrey also testified that “ComEd’s position that any change to any spreadsheet
included in ‘the full set of Schedules and Appendices set forth and listed in Rate DSPP’ must be
approved in a separate Section 9-201 proceeding substantially impairs the Commission’s ‘ability
to approve’ just and reasonable rates in every formula rate proceeding.” (Emphasis in original.)
She further testified that
“[i]f [ComEd’s] definition of formula rate structure is adopted, ***
the Commission would need to annually initiate Section 9-201
proceedings to approve every minor formatting change to a
supporting formula rate schedule or appendix in order to effectuate
adjustments the Commission found to be just and reasonable in
every annual update proceeding prior to issuing a final order in the
annual formula rate proceeding. In other words, in addition to
limiting the Commission’s authority, [ComEd’s] recommendation
would also result in unnecessarily burdening the Commission with
numerous additional Section 9-201 proceedings.”
¶6 Christine Brinkman testified that she is a CPA employed by ComEd in the position of
director, rates and revenue policy. Ms. Brinkman explained that as a participating utility under
what is commonly known as the energy infrastructure and modernization act (modernization
act), “ComEd’s delivery services charges are updated each year using a formula established
under [modernization act] and referenced in ComEd’s formula rate tariff, which incorporates
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specifically defined inputs including ComEd’s actual costs to provide delivery services from the
prior year and historical weather normalized billing determinants.” She explained that ComEd’s
actual costs could not be known in advance, and as a result, “the formula rate mechanism relies
on after-the-fact reconciliation once actual costs are known.” Ms. Brinkman testified that the
schedules and appendices “are necessary for the standardization and transparency called for by
[modernization act]” and that “[t]his detail and transparency cannot be seen on Sch A-1 and Sch
A-1 REC alone.” She explained that Schedule FR A-1 and FR A-1 REC “do not contain specific
cost inputs, but rather provide a high level summary of ComEd’s Initial Rate Year,
Reconciliation Year, and Rate Year Net Revenue Requirements.” She thus concluded that
“ComEd’s rate formula consists of Sch A-1 and Sch A-1 REC, along with supporting Schedules
and Appendices, which collectively provide the certainty, standardization, and transparency
required by [modernization act].”
¶7 Ms. Brinkman further testified that defining the rate formula as including the full set of
schedules and appendices would not “impair the Commission’s ability to review ComEd’s
costs.” She claimed that:
“by taking complex arguments about the formula structure and
protocols out of the annual debate, the detail in the tariff serves to
preserve resources and reduce the workload of the parties and the
Commission. The debate that should occur in annual update
proceedings should center on the specific inputs; there should not
be inefficient costly, and uncertain re-litigation of the formula
structure and protocols themselves year-after-year, which defeats
the express language of [modernization act].”
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¶8 The Commission subsequently heard oral arguments from ComEd, which contended that
“formula rate structure” should be defined as the full set of schedules and appendices, and the
Commission staff, the Attorney General’s office and the Citizen’s Utility Board (CUB), all of
which argued that the term should be defined to refer only to Schedules FR A-1 and FR A-1
REC.
¶9 In its order, the Commission outlined a brief history of prior orders relating to the issue of
defining the formula rate structure. It noted that:
“[a]lthough various statements have been made by the Commission
regarding the scope of FRU dockets and the definition of formula
rate structure, the Commission has not decisively ruled on the
definition of formula rate structure as it applies to ComEd. In
Docket No. 11-0721, the Commission first considered the issue of
how to define the formula rate structure for ComEd. While the
Commission ruled on what schedules to attach to the Order itself
and which formula rate Schedules and Appendices to set forth in
full in Rate DSPP and which to include as part of the compliance
filing, the Commission did not rule on which Schedules and
Appendices constitute the formula rate structure. The Commission
ultimately directed that a rulemaking should commence, because it
would ‘add clarity to the reconciliations that will take place
pursuant to this statute, which should provide greater clarity for
utilities, ratepayers and Commission Staff.’ Docket No. 11-0721,
Order at 153. In doing so, the Commission stated ‘that the sooner
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the rulemaking takes place, the sooner all involved in the
rulemaking will familiarize themselves with what formula rates
will entail.’ Id.
In ComEd’s first formula rate update proceeding, similar
questions were raised, but the Commission indicated that ‘there
will be a rulemaking in which ComEd and other interested parties
are encouraged to address this and other relevant issues regarding
future formula rate filings.’ Commonwealth Edison Co., Docket
No. 12-0321, Order at 105 (Dec. 19, 2012). At this point in time, a
rulemaking is no longer appropriate and, in the Interim Order in
this proceeding, the Commission stated that in the second phase it
would consider the definition of ‘formula rate structure’ as it
applies to ComEd. The Commission takes a fresh look at the
definition of ‘formula rate structure’ as it applies to ComEd.”
¶ 10 After citing sections 16-108.5(c) and (d)(3)—which generally provide that changes to the
“formula rate structure” may only be made in separate section 9-201 proceedings—the
Commission found that the statute itself “does not define ‘formula rate structure,’ and because
the Commission has not initiated a rulemaking to determine an industry-wide definition of
‘formula rate structure,’ the Commission must look at each utility individually.”
¶ 11 The Commission then adopted its staff’s proposed definition,
“for several reasons. First, as noted by Staff witness Ebrey, the
Commission has not specified how information should appear on
the supporting schedules, appendices, and workpapers that are
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merely listed in ComEd’s Commission-approved tariff. In contrast,
the Commission has approved the information and formatting that
is to appear on Schedules FR A-1 and FR A-1 REC. The
Commission cannot declare the supporting schedules, etc. to be
part of the formula rate structure without having specifically
approved them.”
¶ 12 The Commission disagreed with ComEd’s argument that its proposed definition would
result in “ ‘specificity, standardization, or transparency’ in the FRU process.” It noted that
“[a]lthough ComEd’s proposal may lessen the number of issues in the FRU, it will not lessen the
number of issues that must be decided by the Commission. ComEd’s proposal results in formula
rate issues being decided in two dockets instead of one.”
¶ 13 The Commission continued:
“One apparent reason for requiring two separate dockets with two
separate timelines is that it could result in a year-long delay in
implementing any changes. CUB points out that separating out
proposed adjustments into a separate 9-201 proceeding could
prevent reasonable adjustments from being made in a timely
manner. Assuming Staff or an intervenor discovered an issue
requiring an adjustment to a schedule or appendix immediately
upon the Company’s May 1, FRU filing, the 11-month 9-201
proceeding would conclude after rates for the next year have
already been set. See 220 ILCS 5/9-201(b); 220 ILCS 5/16-
108.5(d)(3). Thus, it could take almost two years from the time
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issues are discovered until they are actually reflected in rates.
ComEd’s proposal could allow it to collect unreasonable rates for
over a year, simply because of the technicality that a Section 9-201
proceeding and a Section 16-108.5 proceeding function on
different statutory deadlines. Historically, the Commission has
expedited the separate Section 9-201 proceedings and entered an
order in those Section 9-201 proceedings thirty-days prior to the
effective date of the new rates approved un [sic] the final orders in
the associated FRUs. This is not an efficient use of resources for
the parties or the Commission and needlessly increases costs borne
by ratepayers. The Commission cannot support this outcome.
Thus, for the reasons stated herein, only changes to
Schedules FR A-1 and FR A-1 REC require Commission approval
through a Section 9-201 filing because those are the only schedules
included in the Company’s formula rate tariffs, which set forth the
Commission-approved formula rate structure. Staff’s position is
adopted.”
¶ 14 ComEd’s verified application for rehearing was denied on January 14, 2015, and ComEd
now seeks review of the Commission’s decision in this court pursuant to Illinois Supreme Court
Rule 335 (eff. Feb. 1, 1994) and section 10-201 of the Act.
¶ 15 In this appeal, ComEd argues that the Commission erroneously defined the “formula rate
structure” as only Schedules FR A-1 and FR A-1 REC. ComEd asserts that:
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“[t]he law and the evidence only support the conclusion that
ComEd’s formula rate’s ‘structure’ should and must be defined as
the two summary Schedules [referring to Schedules FR A-1 and
FR A-1 REC] along with the other Schedules and Appendices
expressly incorporated and referenced within the summary
Schedules and in the tariff pages, as this group of Schedules and
Appendices together actually contain the formula that determines
ComEd’s revenue requirement.”
¶ 16 As stated previously, the significance of this issue is that it determines which changes to
the formula rate may be made in annual rate update proceedings, and which changes must be
made in separate proceedings under section 9-201 of the Act. Under section 16-108.5(c) of the
Act, “[s]ubsequent changes to the performance-based formula rate structure or protocols shall be
made as set forth in Section 9-201 of this Act.” 220 ILCS 5/16-108.5 (West 2012). Section 16-
108.5(d) provides that, “[t]he Commission shall not, however, have the authority in a proceeding
under this subsection (d) [(annual formula rate updates)] to consider or order any changes to the
structure or protocols of the performance-based formula rate approved pursuant to subsection (c)
of this Section.” 220 ILCS 5/16-5(d) (West 2012). The parties dispute what constitutes the
“formula rate structure,” and thus, which changes to the formula rate are required to be made in
separate proceedings under section 9-201 of the Act.
¶ 17 Under section 10-201 of the Act, Commission orders are deemed prima facie reasonable
and the burden is on the party appealing the order to overcome that presumption. 220 ILCS 5/10-
201(d) (West 2012); People ex rel. Madigan v. Illinois Commerce Comm’n, 2011 IL App (1st)
101776, ¶ 6 (quoting Commonwealth Edison Co. v. Illinois Commerce Comm’n, 398 Ill. App. 3d
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510, 514 (2009)). Commission orders are subject to reversal when the Commission’s findings are
not supported by substantial evidence. 220 ILCS 5/10-201(e)(iv)(A) (West 2012). However, the
Commission’s factual findings must be upheld unless they are contrary to the manifest weight of
the evidence. People ex rel. Hartigan v. Illinois Commerce Comm’n, 148 Ill. 2d 348, 367 (1992);
see also Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL App (1st) 122860,
¶ 58 (applying manifest weight of the evidence standard). Findings of fact are deemed contrary
to the manifest weight of the evidence only when an opposite conclusion is clearly evident from
the record. Continental Mobile Telephone Co. v. Illinois Commerce Comm’n, 269 Ill. App. 3d
161, 171 (1994). The appellate court may neither reevaluate the credibility or weight of the
evidence nor substitute its judgment for that of the Commission. Commonwealth Edison Co. v.
Illinois Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009). As the parties challenging the
Commission’s order, ComEd must affirmatively demonstrate that the conclusion opposite to that
adopted by the Commission is clearly evident. Continental Mobile Telephone Co., 269 Ill. App.
3d at 171.
¶ 18 In light of its expertise and experience in the complex field of utility regulation, we
accord deference to decisions of the Commission. Archer-Daniels-Midland Co. v. Illinois
Commerce Comm’n, 184 Ill. 2d 391, 397 (1998); Commonwealth Edison Co. v. Illinois
Commerce Comm’n, 398 Ill. App. 3d 510, 514 (2009).
¶ 19 Where the Commission’s decision involves construction of a statute, the extent of that
deference depends on whether the statute is ambiguous. When the Commission construes an
unambiguous statute, the agency’s interpretation is not binding on the court (People ex rel.
Madigan, 2011 IL App (1st) 101776, ¶ 6) and the court need not defer to the agency’s
interpretation. Although agency interpretations of ambiguous statutory provisions are also not
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binding, we give “substantial weight and deference to an interpretation of an ambiguous statute
by the agency charged with the administration and enforcement of the statute.” (Internal
quotation marks omitted.) Id. This is particularly true when the interpretation draws on the
agency’s expertise and experience and we will not substitute our own construction of an
ambiguous statute for a reasonable interpretation adopted by the agency charged with its
administration. Quality Saw & Seal, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 776,
781 (2007) (“if reasonable readers of a statute could differ over the extent of the regulatory
authority it confers, we defer to the agency’s interpretation if the interpretation is defensible”).
¶ 20 ComEd, however, argues that such a deferential standard of review is not appropriate,
and, instead, we should review this issue de novo as a question of law. It contends that courts
“will not defer to an agency’s construction of a statute when the statute is clear and unambiguous
because ‘an interpretation placed upon a statute by an administrative official cannot alter its plain
language.’ ” Apple Canyon Lake Property Owners’ Ass’n v. Illinois Commerce Comm’n, 2013 IL
App (3d) 100832, ¶ 21 (quoting Burlington Northern, Inc. v. Department of Revenue, 32 Ill.
App. 3d 166, 177 (1975)). Although ComEd attempts to avoid the deference generally afforded
to decisions of the Commission by shaping this case as one of plain language, we are
unpersuaded. There is nothing inherent in the language of “formula rate structure” that
conclusively indicates whether the provision refers to Schedules FR A-1 and FR A-1 REC, or to
the more expansive set of schedules and appendices proposed by ComEd. Looking up the words
“formula,” “rate,” and “structure,” in the dictionary to determine their plain and ordinary
meanings, does little to assist us in determining whether the term applies only to the two specific
schedules, or the broader set of schedules and appendices. Instead, the term “formula rate
structure” is open to more than one reasonable interpretation, and it is only by resort to
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interpretative aids other than the language of the provision itself that the intent of the legislature
can be discerned. See People ex rel. Madigan v. Illinois Commerce Comm’n, 2015 IL App (1st)
140275, ¶¶ 22-26. In light of the foregoing, we conclude that the term “formula rate structure” is
ambiguous, and we give “substantial weight and deference” to the Commission’s interpretation.
(Internal quotation marks omitted.) People ex rel. Madigan, 2011 IL App (1st) 101776, ¶ 6.
¶ 21 The Commission chose to define “formula rate structure” as only Schedules FR A-1 and
FR A-1 REC for three specific reasons. First, the Commission noted that it had approved the
“information and formatting that is to appear on Schedules FR A-1 and FR A-1 REC” but it had
not specified how information should appear on the supporting schedules, appendices, and work
papers. The Commission concluded that it could not “declare the supporting schedules, etc. to be
part of the formula rate structure without having specifically approved them.”
¶ 22 ComEd contends that this reasoning is “wrong” because “the two summary Schedules
and the tariff pages refer to specific lines of the other Schedules and Appendices.” ComEd
claims that this “disproves the ruling’s premise that the ICC did not approve what is in the other
Schedules and Appendices.” However, unlike Schedules FR A-1 and FR A-1 REC, the other
schedules and appendices are listed in the Rate DSPP by number and title only, and provide no
description of how information is arranged or what information is included in those documents.
Moreover, even assuming that mere reference to the documents could indicate the Commission’s
specific approval, Schedules FR A-1 and FR A-1 REC refer to fewer than all of the other
schedules, and to only one of the listed appendices. Thus, it is unclear how the reference to a
portion of the schedules and appendices would indicate Commission approval of all of the
schedules and appendices which ComEd proposes to include in the “formula rate structure”
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definition. We find nothing sufficient to overcome the prima facie reasonableness of the
Commission’s order on this basis. 220 ILCS 5/10-201(d) (West 2012).
¶ 23 Next, the Commission believed that ComEd’s proposal would result “in formula rate
issues being decided in two dockets instead of one,” and would not add “specificity,
standardization, or transparency” to the FRU process. ComEd claims that this reasoning is
erroneous because it is “not relevant. Any point about the total number of issues to be decided is
a red herring, for it is an argument against the law itself, which mandates that formula rate
structure and protocols changes not be handled in formula rate updates and instead be addressed
in separate Article IX dockets.” We disagree. Although the Act provides for two separate types
of proceedings, the Commission here was tasked with interpreting the term “formula rate
structure,” and determining which types of changes are to be made in each type of proceeding.
The Commission’s acknowledgment that an expanded definition of “formula rate structure”
would cause more changes to be brought in the separate section 9-201 proceedings is not “an
argument against the law itself,” but is merely a consideration of the potential results of the
proposed interpretation, which is an appropriate way to discern the legislative intent. See
Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990) (“Legislative intent can be
ascertained from a consideration of the entire Act, its nature, its object and the consequences that
would result from construing it one way or the other.”).
¶ 24 Finally, the Commission also believed that ComEd’s proposal could result in substantial
delays in implementing changes, and prevent reasonable adjustments from being made in a
timely manner. The Commission reasoned that if the staff or an intervenor discovered an issue
requiring an adjustment to a schedule or appendix immediately upon the company’s May 1 FRU
filing, it could take almost two years until the adjustment is reflected in rates. The Commission
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acknowledged that the section 9-201 proceedings had been expedited in the past, but determined
that doing so was “not an efficient use of resources for the parties or the Commission and
needlessly increases costs borne by ratepayers.” ComEd claims that this reasoning is not
persuasive because it is mere “speculation.” It claims that it “attributes to ComEd motives that it
does not have,” and further notes that the Commission has substantial leeway to accelerate an
article IX proceeding.
¶ 25 Although ComEd contends that speculation is not a lawful basis for a Commission
decision, citing Ameropan Oil Corp. v. Illinois Commerce Comm’n, 298 Ill. App. 3d 341, 348
(1998), and Allied Delivery System, Inc. v. Illinois Commerce Comm’n, 93 Ill. App. 3d 656, 667
(1981), we find its reliance on those cases unconvincing. First, and most importantly, neither
case concerns the Commission’s interpretation of an ambiguous statutory provision, in which the
Commission is entitled to examine the potential results of various interpretations to discern the
legislative intent. See Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 96 (1990).
Moreover, in Ameropan Oil Corp., the Commission noted that the petitioner speculated “about
‘the unexpected’ occurring and ma[de] irrelevant references to downed electrical lines in
Canada, the Space Shuttle disaster, and the Titanic.” Ameropan Oil Corp., 298 Ill. App. 3d at
348. In those circumstances, this court found that “Such speculation has no place in the ICC’s
decision or in our review of it.” Id. Considering the natural and probable consequences of the
interpretation of a term, as the Commission did here, is a far cry from irrelevant speculation
regarding “the Space Shuttle disaster, and the Titanic,” which was at issue in Ameropan Oil
Corp. Id. In these circumstances, we find no fault in the Commission’s consideration of the
potential consequences of the various proposed interpretations.
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¶ 26 Although ComEd further claimed that the Commission has substantial leeway to
accelerate an article IX proceeding, and has exercised such authority in the past, we note that the
Commission explicitly determined that doing so was “not an efficient use of resources for the
parties or the Commission and needlessly increases costs borne by ratepayers.” ComEd has not
provided this court with anything that would overcome the presumption of prima facie
reasonableness of the Commission’s rationale. 220 ILCS 5/10-201(d) (West 2012).
¶ 27 Finally, we also note that the definition adopted by the Commission is consistent with its
recent decision interpreting the same term, formula rate structure, as it applied to Ameren. In that
proceeding, the Commission held that the phrase “formula rate structure” referred only to
Schedules FR A-1 and FR A-1 REC. While that order stated that it should not automatically be
applied to ComEd, and while Commission decisions are not res judicata in later proceedings
(Business & Professional People for the Public Interest v. Illinois Commerce Comm’n, 136 Ill.
2d 192, 227 (1989)), we find no reasonable rationale to interpret the phrase differently as it
relates to ComEd.
¶ 28 In sum, although ComEd faults the Commission’s interpretation on a number of points,
we find nothing sufficient to overcome the prima facie reasonableness of the Commission’s
order. 220 ILCS 5/10-201(d) (West 2012); Continental Mobile Telephone Co. v. Illinois
Commerce Comm’n, 269 Ill. App. 3d 161, 171 (1994). The Commission had the authority to
interpret the ambiguous term “formula rate structure” contained in the Act, and ComEd has
provided nothing to show that the opposite interpretation is the only possible interpretation of
that term. We therefore affirm the Commission’s order.
¶ 29 Affirmed.