                                Illinois Official Reports

                                        Appellate Court



                   Commonwealth Edison Co. v. Illinois Commerce Comm’n,
                                2014 IL App (1st) 130302



Appellate Court           COMMONWEALTH EDISON COMPANY, Petitioner, v. ILLINOIS
Caption                   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.


District & No.            First District, Third Division
                          Docket Nos. 1-13-0302, 1-13-0493 cons.


Filed                     June 30, 2014
Rehearing denied          September 15, 2014


Held                       In the consolidated review of the Illinois Commerce Commission’s
(Note: This syllabus rulings in petitioner’s statutory rate update and reconciliation case for
constitutes no part of the 2012, the appellate court found that petitioner failed to meet its burden
opinion of the court but of showing any error in the contested rulings by the Commission or
has been prepared by the the denial of 2011 Rate Case expenses, and the legal issues with
Reporter of Decisions respect to the billing determinants and cost allocation were resolved in
for the convenience of the 2011 Rate Case, which constituted a collateral estoppel bar to
the reader.)               relitigation.




Decision Under            Petition for review of orders of Illinois Commerce Commission, No.
Review                    12-0321.



Judgment                  Affirmed.
     Counsel on               Barry Levenstam, of Jenner & Block LLP, and E. Glenn Rippie, of
     Appeal                   Rooney Rippie & Ratnaswamy LLP, both of Chicago, and David W.
                              DeBruin and Matthew E. Price, both of Jenner & Block LLP, of
                              Washington, D.C., for petitioner.



                              Lisa Madigan, Attorney General, of Chicago (John P. Kelliher and
                              Thomas R. Stanton, Special Assistant Attorneys General, of counsel),
                              for respondent Illinois Commerce Commission.



                              No brief filed for respondent Citizens Utility Board.



     Panel                    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
       (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 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).

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¶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 Comm’n, 322 Ill. App. 3d 846, 849 (2001) (citing Citizens Utilities Co. of
       Illinois v. Illinois Commerce Comm’n, 124 Ill. 2d 195, 200 (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
       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, 146 Ill. 2d 175,
       195 (1991) (quoting Citizens Utilities Co. of Illinois v. Illinois Commerce Comm’n, 124 Ill. 2d
       195, 200-01 (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, 322 Ill. App. 3d 846, 849 (2001) (citing Citizens
       Utilities Co. of Illinois, 124 Ill. 2d at 200).
¶ 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, 2014 IL App (1st) 122860, ¶ 3
       (citing Business & Professional People for the Public Interest v. Illinois Commerce Comm’n,
       146 Ill. 2d 175, 195 (1991)). The rate base is defined as the total value of all invested capital.
       Id. 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.

                                                    -3-
¶ 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, 398 Ill. App. 3d 510, 515 (2009) (citing Villages of Milford v. Illinois
       Commerce Comm’n, 20 Ill. 2d 556, 562 (1960)). “The return is the product of the allowed rate
       of return and the rate base.” Commonwealth Edison Co., 322 Ill. App. 3d at 849 (citing Citizens
       Utilities Co., 124 Ill. 2d at 200). The company’s revenue requirement comprises the sum of
       operating costs and the return on the rate base. Id.

¶ 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, 398 Ill. App. 3d 510, 516 (2009) (citing Business & Professional People
       for the Public Interest, 146 Ill. 2d at 247). “[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, 398 Ill. App. 3d 510, 516 (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
       transmission of electricity, and it sets rates for the interstate transmission. See 16 U.S.C. § 824
       (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

          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.

                                                    -4-
       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.
¶ 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 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., 2014 IL App (1st) 122860, ¶ 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

           2
            ComEd uses the terms “allocation” and “functionalization” and “allocating” and “functionalizing”
       interchangeably.

                                                     -5-
       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 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 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, 2011 IL App (1st) 101776, ¶ 11 (quoting
       Commonwealth Edison Co. v. Illinois Commerce Comm’n, 405 Ill. App. 3d 389, 394 (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, 405 Ill. App. 3d at 394; 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
       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.



                                                    -6-
¶ 30        The Commission established the formula in the 2011 Rate Case. Commonwealth Edison
       Co., Ill. Com. Comm’n, Docket 11-0721 (Order May 29, 2012) (hereinafter, 2011 Rate Case).
       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. Com. Comm’n, Docket 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 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:
                “[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. Com. Comm’n, Docket 11-0721, at 75
                (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, 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

                                                   -7-
       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
       Commission’s order. See Commonwealth Edison Co. v. Illinois Commerce Comm’n, 2014 IL
       App (1st) 122860.
¶ 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., 2014 IL
       App (1st) 122860, ¶ 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 waive any rights to pursue them currently or in the future.” Commonwealth Edison
       Co., Ill. Com. Comm’n, Docket 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,

                                                   -8-
       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 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, 322 Ill. App. 3d 846, 849 (2001) (citing Citizens United for Responsible Energy
       Development, Inc. v. Illinois Commerce Comm’n, 285 Ill. App. 3d 82, 89 (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, 398 Ill. App. 3d 510, 514 (2009) (citing Citizens Utility Board v. Illinois
       Commerce Comm’n, 291 Ill. App. 3d 300, 304 (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, 398 Ill. App. 3d at 514 (quoting Citizens Utility Board, 291 Ill.
       App. 3d at 304).


                                                    -9-
¶ 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 5/10-201(d) (West 2012). See also People ex rel. Madigan v. Illinois Commerce
       Comm’n, 2011 IL App (1st) 101776, ¶ 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, 398 Ill. App. 3d 510, 514 (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, 322 Ill. App. 3d 846, 849 (2001) (quoting United Cities Gas Co.
       v. Illinois Commerce Comm’n, 163 Ill. 2d 1, 12 (1994), quoting Village of Apple River v.
       Illinois Commerce Comm’n, 18 Ill. 2d 518, 523 (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, 184
       Ill. 2d 391, 397 (1998). “Our supreme court has held that deference to the Commission is
       ‘especially appropriate in the area of fixing rates.’ ” Commonwealth Edison Co., 398 Ill. App.
       3d at 514 (quoting Iowa-Illinois Gas & Electric Co. v. Illinois Commerce Comm’n, 19 Ill. 2d
       436, 442 (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., 398 Ill. App. 3d at 514.

¶ 49                                       Billing Determinants
¶ 50       The Commission argues that our previous decision in Commonwealth Edison Co., 2014 IL
       App (1st) 122860, 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 Co. 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., 2014 IL App (1st) 122860, 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 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

                                                  - 10 -
       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, 2011 IL App (2d) 100114, ¶ 17
       (citing Mabie v. Village of Schaumburg, 364 Ill. App. 3d 756, 758 (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 judgment on the merits involving the same parties or their privies.”
       Gallaher v. Hasbrouk, 2013 IL App (1st) 122969, ¶ 21 (citing Du Page Forklift Service, Inc. v.
       Material Handling Services, Inc., 195 Ill. 2d 71, 77 (2001), Schratzmeier v. Mahoney, 246 Ill.
       App. 3d 871, 875 (1993), and Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512,
       515-16 (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, 2013 IL App (2d) 111297,
       ¶ 21 (citing Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512, 516 (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 omitted.) People v. Hopkins, 235 Ill. 2d 453, 468
       (2009) (citing People v. Tenner, 206 Ill. 2d 381, 396 (2002), and People v. Moore, 138 Ill. 2d
       162, 166 (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, 2013 IL 112673, ¶ 77 (citing In re A.W., 231 Ill. 2d 92, 99
       (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
       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

                                                   - 11 -
       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., 2014 IL App (1st) 122860,
       ¶ 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., 2014 IL App (1st) 122860, ¶ 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., 2014 IL App (1st) 122860, ¶ 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 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., 2014 IL App (1st) 122860, ¶ 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 5/16-108.5(c)(4)(H) (West 2012). The Act also directs the Commission to determine
       rates “subject to a determination of prudence and reasonableness consistent with Commission
       practice and law.” 220 ILCS 5/16-108.5(c)(4) (West 2012).



                                                  - 12 -
¶ 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., 2014 IL App (1st) 122860, ¶ 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.” Commonwealth Edison Co., Ill. Com. Comm’n, Docket 12-0321, at 28 (Order Dec. 19,
       2012) 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. Com. Comm’n, Docket 12-0321, at 28 (Order
       Dec. 19, 2012).
¶ 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,
       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. Com. Comm’n, Docket 12-0321, at 29-30 (Order Dec.
               19, 2012).
¶ 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

                                                  - 13 -
       Case. In the 2011 Rate Case, ComEd proposed new methodologies for allocating two
       categories of 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) 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., 2014 IL App (1st)
       122860, 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

                                                    - 14 -
               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: (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 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 5/16-108.5(c)(4) (West 2012).
       Section 16-108.5(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)


                                                    - 15 -
                        (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
       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, 476 U.S. 953, 964-66 (1986),
       Mississippi Power & Light Co. v. Moore, 487 U.S. 354, 371-73 (1988), Entergy Louisiana,
       Inc. v. Louisiana Public Service Comm’n, 539 U.S. 39, 47 (2003), and General Motors Corp.
       v. Illinois Commerce Comm’n, 143 Ill. 2d 407, 420 (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, 476 U.S. at
       965. 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. 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, 476 U.S. at 970. See also General Motors Corp., 143 Ill. 2d
       at 420 (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, 476 U.S. at 967.
¶ 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

                                                   - 16 -
       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
       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., 2014 IL App (1st) 122860, ¶ 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 Commission as a result of ComEd’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

                                                   - 17 -
       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 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
       error; any doubt arising from incompleteness of the record will be resolved against the
       appellant.” People v. Kirkpatrick, 240 Ill. App. 3d 401, 406 (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, 2011 IL App (1st) 101776, ¶ 13 (quoting Central Illinois Public Service Co. v.
       Illinois Commerce Comm’n, 243 Ill. App. 3d 421, 432 (1993), citing Du Page Utility Co. v.
       Illinois Commerce Comm’n, 47 Ill. 2d 550 (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:


                                                   - 18 -
                                                     ***
                        (E) recovery of the expenses related to the Commission proceeding under this
                    subsection (c) to approve this performance-based formula rate and initial rates 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 IL 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 IL 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 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.

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               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 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., 187 Ill. App. 3d 468, 469-472 *** (1st Dist. 1989); Johnson v.
               Thomas, 342 [I]ll. App. 3d 382, 400-404 *** (1st Dist. 2003); Guerrant v. Roth, 334
               Ill. App. 3d 259, 267-73 *** (1st Dist. 2002); Watson v. South Shore Nursing and
               Rehabilitation Center, 2012 IL App (1st) 103730, 12-14 ***.” Commonwealth Edison
               Co., Ill. Com. Comm’n, Docket No. 12-0321, at 53-54 (Order Dec. 19, 2012).
¶ 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;


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                    (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 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 (2010) 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 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 $1,544,161, 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 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. Id., 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, 342 Ill. App. 3d
               382, 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., 230 Ill. App. 3d 591, 599 *** (1st Dist.
               1992). In fact, ComEd Ex. 3.9 does not state what services were performed by these
               entities ***.” Commonwealth Edison Co., Ill. Com. Comm’n, Docket 12-0321, at
               54-57 (Order Dec. 19, 2012).


                                                   - 21 -
¶ 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
       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 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 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


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        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, 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, 254 Ill. App. 3d 392, 402 (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, and many entries were unrelated to the 2011 Rate Case and instead related to other
        matters.
            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.

¶ 100                                          CONCLUSION
¶ 101       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, 2014 IL App (1st) 122860. 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.


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¶ 102   Affirmed.




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