{ "id": 456104, "name": "CITIZENS UTILITY BOARD et al., Petitioners-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees; THE CITY OF CHICAGO, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees; THE PEOPLE ex rel. JAMES E. RYAN, Attorney General, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees; COMMONWEALTH EDISON COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees", "name_abbreviation": "Citizens Utility Board v. Illinois Commerce Commission", "decision_date": "1997-08-01", "docket_number": "Nos. 1\u201495\u20140153, 1\u201495\u20140155, 1\u201495\u20140156, 1\u201495\u20140659 cons.", "first_page": "300", "last_page": "310", "citations": [ { "type": "official", "cite": "291 Ill. App. 3d 300" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "166 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "19 Ill. 2d 354", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2745880 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/19/0354-01" ] }, { "cite": "478 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529059 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0435-01" ] }, { "cite": "265 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "47 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906453 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/47/0498-01" ] }, { "cite": "529 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3517054 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "1055" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/1049-01" ] }, { "cite": "555 N.E.2d 693", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "136 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255316 ], "year": 1989, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0192-01" ] }, { "cite": "529 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 39", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554269 ], "year": 1988, "pin_cites": [ { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0039-01" ] }, { "cite": "669 N.E.2d 919", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182718 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "200-01" }, { "page": "200-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0188-01" ] }, { "cite": "549 N.E,2d 1327", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499167 ], "year": 1990, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0178-01" ] }, { "cite": "561 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2581006 ], "year": 1990, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0424-01" ] }, { "cite": "606 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 368", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5148209 ], "year": 1993, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0368-01" ] }, { "cite": "643 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "163 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 478100 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/163/0001-01" ] }, { "cite": "651 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 953, "char_count": 23709, "ocr_confidence": 0.782, "pagerank": { "raw": 1.1191537198178296e-07, "percentile": 0.5729808957973997 }, "sha256": "1b35d9c370f21a7312c54106e7b7e5e871aeb58c0747482a82670288b9e8cde2", "simhash": "1:279b83cc3f86d20d", "word_count": 3656 }, "last_updated": "2023-07-14T16:38:08.144333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CITIZENS UTILITY BOARD et al., Petitioners-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014THE CITY OF CHICAGO, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014THE PEOPLE ex rel. JAMES E. RYAN, Attorney General, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014COMMONWEALTH EDISON COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HARTMAN\ndelivered the opinion of the court:\nOn February 10, 1994, Commonwealth Edison Company (Edison) filed with the Illinois Commerce Commission (Commission) revised tariff schedules, proposing an increase in annual revenues \"by about 7.9%.\u201d Edison also filed exhibits and testimony in support of the rate increase. The Commission thereafter twice suspended, until January 9, 1995, Edison\u2019s filed tariffs.\nDuring these proceedings, appearances or petitions to intervene were filed by the staff of the Commission (Staff), the State of Illinois by the Attorney General (AG), the City of Chicago (City), the board of trustees of the University of Illinois, Birmingham Steel Corporation, Business and Professional People for the Public Interest, Citizens Utility Board (CUB), the Labor Coalition on Public Utilities, the People of Cook County by the Cook County State\u2019s Attorney (SA), the United States Department of Energy, the Chicago Area Industrial Customer Coalition, the Illinois Industrial Energy Consumers (IIEC), and an individual, Ralph M. Schultz. The Commission held evidentiary hearings from August 16 through September 2, 1994. Public hearings were also held, following proper notice, in various locations throughout Illinois. The Commission thereafter issued a proposed order and the parties filed exceptions and replies to exceptions. Following oral argument, the Commission issued its final order on January 9, 1995, granting Edison a $303.2 million increase in electric rates. The Commission also found that Edison\u2019s nuclear generating plants (Byron 2, Braidwood 1 and 2) are \"used and useful,\u201d thereby allowing Edison to include the costs of those plants in its rate base.\nCUB, the SA, the City, the AG and Edison filed petitions for review, which were consolidated by this court. CUB and the SA sought a stay of the Commission\u2019s order, which this court denied based on Edison\u2019s commitment that in the event the Commission\u2019s rate order is reversed, Edison \"will refund to its customers any amounts collected pursuant\u201d to the Commission\u2019s order. CUB, the City and the AG (collectively, intervenors) appeal the Commission\u2019s order, raising several issues. Edison also appeals, contesting the Commission\u2019s denial of Edison\u2019s requests for the recovery of flotation costs associated with stock issuance and the Commission\u2019s disallowance of charitable contributions in excess of $2 million.\nWe need only address two of the issues presented by the intervenors as we find the Commission\u2019s order proper in all other respects. Additionally, we reject Edison\u2019s contentions on appeal as being without merit.\nThe Public Utilities Act (Act) (220 ILCS 5/1\u2014101 et seq. (West 1994)) provides, in part, as follows:\n\"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.\u201d 220 ILCS 5/10\u2014201(d) (West 1994).\nSection 10\u2014201(e)(iii) of the Act provides:\n\"If the court determines that the Commission\u2019s rule, regulation, order or decision does not contain findings or analysis sufficient to allow an informed judicial review thereof, the court shall remand the rule, regulation, order or decision, in whole or in part, with instructions to the Commission to make the necessary findings or analysis.\u201d 220 ILCS 5/10\u2014201(e)(iii) (West 1994).\nSection 9\u2014201(c) of the Act provides that \"the Commission shall establish the rates or other charges *** which it shall find to be just and reasonable.\u201d 220 ILCS 5/9\u2014201(c) (West 1994). \"[T]he burden of proof to establish the justness and reasonableness of the proposed rates or other charges *** shall be upon the utility.\u201d 220 ILCS 5/9\u2014 201(c) (West 1994).\nThe Commission\u2019s findings will be reversed only if they \"are not supported by substantial evidence based on the record; the Commission acted outside the scope of its statutory authority; the Commission issued findings in violation of the State or Federal Constitution or law; or the proceedings or the manner in which the Commission reached its findings violates the State or Federal Constitution or laws, to the prejudice of the appellant.\u201d Citizens Utility Board v. Illinois Commerce Comm\u2019n, 166 Ill. 2d Ill, 120-21, 651 N.E.2d 1089 (1995), citing 220 ILCS 5/10\u2014201(e)(iv)(A) through (e)(iv)(D) (West 1992); United Cities Gas Co. v. Illinois Commerce Comm\u2019n, 163 Ill. 2d 1, 643 N.E.2d 719 (1994). \"Substantial evidence consists of more than a mere scintilla but may be something less than a preponderance of evidence and is such evidence as a reasoning mind would accept as sufficient to support a particular conclusion.\u201d People ex rel. O\u2019Malley v. Illinois Commerce Comm\u2019n, 239 Ill. App. 3d 368, 376, 606 N.E.2d 1283 (1993), citing Illinois Bell Telephone Co. v. Illinois Commerce Comm\u2019n, 203 Ill. App. 3d 424, 433, 561 N.E.2d 426 (1990); Metro Utility v. Illinois Commerce Comm\u2019n, 193 Ill. App. 3d 178, 184, 549 N.E,2d 1327 (1990). This court can neither reevaluate the credibility or weight of the evidence nor substitute its judgment for the Commission\u2019s. Illinois Bell Telephone Co. v. Illinois Commerce Comm\u2019n, 283 Ill. App. 3d 188, 200-01, 669 N.E.2d 919 (1996).\nThe Commission\u2019s interpretation of statutory standards is entitled to deference, but this court is not bound by the Commission\u2019s interpretation of law. Citizens Utility Board, 166 Ill. 2d at 121. Decisions of the Commission are not res judicata. Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm\u2019n, 175 Ill. App. 3d 39, 51, 529 N.E.2d 671 (1988). Though the Act grants the Commission discretion, the Commission\u2019s decisions are entitled to less deference when the Commission drastically departs from past practice. Business & Professional People for the Public Interest v. Illinois Commerce Comm\u2019n, 136 Ill. 2d 192, 228, 555 N.E.2d 693 (1989). Because the Act obliges the Commission to provide \"findings or analysis sufficient to allow an informed judicial review\u201d (220 ILCS 5/10\u2014201(e)(iii) (West 1994)), the Commission must set forth more reasoning and analysis than would be acceptable from a circuit court. See generally Citizens Utility Board, 166 Ill. 2d at 120-26. \"The Commission, however, is not required to make particular findings as to each evidentiary fact or claim.\u201d Lefton Iron & Metal Co. v. Illinois Commerce Comm\u2019n, 174 Ill. App. 3d 1049, 1055, 529 N.E.2d 610 (1988), citing United Cities Gas Co. v. Illinois Commerce Comm\u2019n, 47 Ill. 2d 498, 265 N.E.2d 608 (1970).\nI\nThe City contends the Commission improperly failed to distinguish between the marginal cost of adding a new customer who requires new facilities and the marginal cost of serving all other new and existing customers. Edison counters that the City does not challenge the correctness of the Commission\u2019s rate increase, but contests the Commission\u2019s revenue allocation, a decision which requires the Commission\u2019s expertise. IIEC contends the City\u2019s position prohibits the inclusion into the customer component of the costs associated with serving that customer. The Commission maintains that a distinction between new and existing customers would result in a distortion of the results of the marginal cost study.\nThe Commission recognized testimonial evidence that Edison\u2019s study does not reflect the costs of serving new as opposed to existing customers. IIEC witness Maurice Brubaker testified, however, that Edison\u2019s study did not account for the distinction between new and existing customers because such a distinction is \"artificial and inappropriate in the marginal cost sense. The purpose of the marginal study is to develop the cost associated with serving additional load. This cannot be accomplished if the cost of facilities required to serve a substantial proportion of the load is ignored.\u201d Edison witness Dennis Kelter testified that the \"carrying charges associated with additional investment *** and costs associated with meter reading, billing and customer service are incurred by [Edison] to serve that additional customer. The mere existence of additional customers on Edison\u2019s system causes [Edison] to incur these costs.\u201d On the other hand, Staff witness Peter Lazare testified that, based on Edison\u2019s numbers, \"approximately [.03% ] of existing customers will require replacement meters and [.05% ] of existing customers will require replacement services in a given year.\u201d The Commission concluded that it was\n\"aware of the principle [sic] criticism of [Edison\u2019s marginal cost] study, that Edison has failed to distinguish between marginal customer costs and marginal [transmission and distribution] costs imposed by existing customers as opposed to new customers, but concludes that such a distinction in this proceeding could produce distortions in other areas of the marginal cost studies.\u201d ICC Docket No. 94\u20140065.\nThe Commission, unlike a circuit court, must provide \"findings or analysis sufficient to allow an informed judicial review.\u201d 220 ILCS 5/10\u2014201(e)(iii) (West 1994); see generally Citizens Utility Board, 166 Ill. 2d at 120-26. Though the evidence may be substantial enough to support the Commission\u2019s findings, the Commission\u2019s order is lacking in sufficient analysis here: specifically, the Commission stated that \"distortions\u201d \"could\u201d occur in other areas without explaining what distortions could occur. See 220 ILCS 5/10\u2014201(e)(iii) (West 1994). The Commission\u2019s succinct statement leaves this court attempting to discover why \"such a distinction\u201d could create a distortion, what type of \"distortions\u201d could occur, and in what areas these \"distortions\u201d could occur. This court, however, cannot provide the analysis for the Commission\u2019s order. See Illinois Bell Telephone Co. v. Illinois Commerce Comm\u2019n, 283 Ill. App. 3d 188, 200-01, 669 N.E.2d 919 (1996). The Commission and Edison submit that Brubaker\u2019s testimony supports the Commission\u2019s finding; however, Brubaker\u2019s testimony was not mentioned by the Commission in its findings. The Commission lastly relies upon reasoning from an earlier order to support its finding; yet, the order here contains no similar reasoning or analysis.\nEdison asserts the Commission was properly concerned \"with applying a marginal cost approach to certain cost elements but an inconsistent approach to customer costs.\u201d The Commission\u2019s order reveals no such concern and Edison\u2019s attempt to provide reasoning for the Commission\u2019s ruling demonstrates the absence of any reasoning in the Commission\u2019s order. Accordingly, the Commission\u2019s order \"does not contain findings or analysis sufficient to allow an informed judicial review\u201d (220 ILCS 5/10\u2014201(e)(iii) (West 1994)), and the Commission\u2019s order concerning the marginal costs of new customers is remanded to the Commission for further analysis as to how \"such a distinction in this proceeding could produce distortions in other areas of the marginal cost studies.\u201d\nII\nThe AG contests the Commission\u2019s finding that Edison\u2019s cost of equity was 12.28%.\nA\nThe AG contends the Commission entered findings rejecting the testimony of AG/City witness Richard LeLash, IIEC witness Michael Gorman and United States Department of Energy witness Matthew Kahal (collectively, intervenor witnesses) that were incomplete, erroneous and unsupported by reasoning or analysis. Edison and the Commission assert a utility\u2019s rate of return is an issue particularly within the Commission\u2019s expertise and the Commission\u2019s finding that Edison should earn an overall rate of 9.87%, which incorporated a 12.28% return on common equity capital, was a substantial decrease from the Commission\u2019s 1993 remand order, notwithstanding evidence that supported an increase in the rate of return.\nThe Commission here rejected the recommendations of Edison\u2019s witnesses as well as the intervenor witnesses, noting that the intervenor witnesses\u2019 presentations:\n\"lead to determinations which underestimate Edison\u2019s cost of equity; [e.g.], use by all three Intervenor witnesses of an annual DCF [(discounted cash flow)] model, which has been explicitly rejected by this Commission ([see] Northern Illinois Gas Co., Docket 87\u20140032 at 36 (Jan. 20, 1988); Commonwealth Edison Co., Dockets 83\u20140537 [et al.] at 34 (Oct. 24, 1985)); *** GTE at 63, 66; use of untimely data, in their DCF studies; use by the Intervenor witnesses of growth rates calculated on the basis of a retention ratio method *** previously rejected as unsound by the Commission in the GTE Order at 65; use by Mr. Gorman of invalid unadjusted (raw) betas in his CAPM [(capital asset pricing model)] analysis; and failure of all three to recognize the greater risks facing Edison as compared to their various 'sample\u2019 groups of companies.\u201d ICC Docket No. 94\u20140065.\n1\nThe AG initially asserts the Commission\u2019s findings on annual DCF methodology and retention ratio are insufficient because those findings, which are based on past agency decisions, require this court to make a de nova review of the evidence. Edison counters that the Commission can rely on principles adopted in prior decisions and the Commission errs if it departs arbitrarily or capriciously from its past practices and principles, relying upon City of Chicago v. Illinois Commerce Comm\u2019n, 133 Ill. App. 3d 435, 440, 478 N.E.2d 1369 (1985). As stated in City of Chicago, the decisions of the Commission are not res judicata, but the Commission has the power to deal with each situation before it regardless of how it may have dealt previously with a similar or the same situation. 133 Ill. App. 3d at 440.\nThe Commission\u2019s order detailed the testimony of all witnesses on these issues and concluded that Staff witness Alan Pregozen\u2019s presentation was the most reasonable recommendation because he \"used theoretically correct models and implemented them honestly and carefully.\u201d ICC Docket No. 94\u20140065. Pregozen also balanced the interest of ratepayers and shareholders. The Commission recapped Pregozen\u2019s testimony by stating that his DCF model \"precisely reflects the timing of each dividend payment\u201d and \"assumes [that] companies will increase dividends once each year at a constant rate.\u201d ICC Docket No. 94\u20140065. The AG relies upon the Commission\u2019s stated rejection of the intervenor witnesses\u2019 testimony for following practices previously dismissed by the Commission. The Commission found, however, that the intervenor witnesses underestimated the cost of common equity. This finding was supported by several reasons, including the intervenor witnesses\u2019 use of an annual DCF model, which the Commission explicitly rejected in previous cases, rather than a DCF model that reflects the timing of each dividend payment. The Commission\u2019s findings are considered prima facie true and the AG bears the burden of proof on appeal. 220 ILCS 5/10\u2014201(d) (West 1994).\nThe findings of the Commission here are supported by substantial evidence, and the Commission\u2019s findings and analysis are sufficient to allow an informed judicial review. 220 ILCS 5/10\u2014201(e)(iii) (West 1994). Accordingly, we affirm the Commission\u2019s findings on DCF methodology and retention ratio.\n2\nThe AG next maintains that the Commission\u2019s findings on risk factors affecting Edison\u2019s cost of equity erroneously disregard evidence showing that risk was considered. The Commission rejected the intervenor witnesses\u2019 determinations, in part, because they used \"untimely data.\u201d The AG also asserts this finding is vague, unsupported by record evidence, and arbitrary.\nHere, the Commission rejected the intervenor witnesses\u2019 presentation, in part, because \"all three [failed] to recognize the greater risks facing Edison as compared to their various 'sample\u2019 groups of companies.\u201d ICC Docket No. 94\u20140065. The Commission\u2019s order does not explain what \"greater risks\u201d are facing Edison or how the three witnesses\u2019 presentations failed to account for those greater risks. Nor does the Commission explain the nature of the \"untimely data.\u201d The Commission\u2019s' findings here contain no reference to the evidence adduced, and its argument on appeal, therefore, cannot provide evidentiary support. The Act obliges the Commission to provide \"findings or analysis sufficient to allow an informed judicial review.\u201d 220 ILCS 5/10\u2014201(e)(iii) (West 1994). As previously noted, the Commission must supply more reasoning and analysis than would be acceptable from a circuit court. See generally Citizens Utility Board, 166 Ill. 2d at 120-26; 220 ILCS 5/10\u2014201(e)(iii) (West 1994). The Commission, as the fact-finding body, must render findings on these issues; failure to do so, as here, leaves this court without an informed basis for judicial review. See 220 ILCS 5/10\u2014201(e)(iii) (West 1994); Brinker Trucking Co. v. Illinois Commerce Comm\u2019n, 19 Ill. 2d 354, 166 N.E.2d 18 (1960). A remand is necessary so that the Commission can provide the appropriate evidentiary basis and reasoning for its findings that the intervenor witnesses used untimely data and failed to recognize the greater risks facing Edison.\nB\nThe AG next asserts the Commission rested its decision adopting Staffs recommendation on a finding unsupported by any record evidence.\nThe Commission summarized Pregozen\u2019s testimony, in part, as follows:\n\"[H]e averaged the DCF cost of equity estimates for Edison with those for the comparable sample. Averaging these estimates increases the measured cost of equity by 54 basis points, to 11.85%, in relation to the comparable sample estimate of 11.31%. He also added 54 basis points to the risk premium estimates for the comparable sample because [Edison\u2019s] true beta probably exceeds the estimated beta for both it and the comparable sample. ***\nIn summary, the DCF estimates form the low end of the range Mr. Pregozen estimated for [Edison\u2019s] required [return on equity], while the risk premium estimates, with 54 basis points added to reflect the difference in risk between Edison and the comparable sample and an apparent downward bias in [Edison\u2019s] estimated beta, form the high end.\u201d\nPregozen estimated the cost of equity for Edison using three models: constant-growth DCF, non-constant-growth DCF, and risk premium analysis. Edison and the Commission again attempt to provide the evidentiary basis for the Commission\u2019s finding that Pregozen equally weighed the DCF and risk premium-based results; however, this analysis should have been provided by the Commission. The Act obliges the Commission to provide \"findings or analysis sufficient to allow an informed judicial review.\u201d 220 ILCS 5/10\u2014201(e)(iii) (West 1994). Although Pregozen did not explicitly state he equally weighed the various factors, this does not mean he did not in fact do so. The Commission\u2019s order, however, fails to explain fully how Pregozen\u2019s approach equally weighed the DCF and risk premium-based results or how he arrived at the sum of 54 basis points. Accordingly, the Commission\u2019s finding must be remanded for further analysis. 220 ILCS 5/10\u2014 201(e)(iii) (West 1994).\nC\nThe AG next maintains that the Commission\u2019s conclusions on Edison\u2019s rate of return are contrary to the manifest weight of the evidence. The AG notes that six different witnesses testified concerning cost of equity, three of whom reached the same conclusion on Edison\u2019s cost of equity and another, Pregozen, a Staff witness, reached a similar conclusion.\nPregozen\u2019s constant-growth DCF model \"produced a cost of equity range of 10.93% to 11.35% for the comparable sample and 12.68% to 12.84% for Edison.\u201d (Emphasis added.) ICC Docket No. 94\u20140065. Pregozen\u2019s testimony, therefore, does not support the AG\u2019s argument. The mere fact that the intervener witnesses outnumbered Staff witness Pregozen does not, a fortiori, require the Commission to follow their recommendations; rather, the credibility of expert witnesses and the weight to be given their testimony are matters for the Commission as the fact finder. See Lefton Iron & Metal Co. v. Illinois Commerce Comm\u2019n, 174 Ill. App. 3d 1049, 529 N.E.2d 610 (1988). We cannot say the Commission\u2019s decision is against the manifest weight of the evidence; nevertheless, we believe remand is appropriate here in light of the Commission\u2019s need to provide further analysis regarding risk factors, untimely data, Pregozen\u2019s equal weighing of the DCF and risk premium-based results, how Pregozen arrived at the sum of 54 basis points, and whether his addition of 54 basis points was proper. After reanalyzing those bases, the Commission can determine whether or not Pregozen\u2019s cost of equity presentation should still be followed.\nFor the foregoing reasons, the findings of the Commission concerning: (1) the distortions created by recognizing a distinction between new and existing customers; (2) risk factors and untimely data; and (3) Pregozen\u2019s equal weighing of the DCF and risk premium-based results, and his conclusion that 54 basis points should be added to the comparable sample, are remanded to the Commission so that it can provide further analysis. The Commission\u2019s order is affirmed in all other respects.\nAffirmed in part; remanded in part.\nHOFFMAN and SOUTH, JJ., concur.\nCUB also notes the Commission\u2019s failure to distinguish between new and existing customers, but raises this argument in connection with its contention that the Commission used an inappropriate methodology and asserts that the Commission\u2019s revenue allocation is contrary to law and the evidence. We find no error in the Commission\u2019s methodology nor do we find that the Commission\u2019s revenue allocation was contrary to law and the evidence; rather, we find the order is lacking in sufficient analysis regarding the distinction between new and existing customers.", "type": "majority", "author": "PRESIDING JUSTICE HARTMAN" } ], "attorneys": [ "Sidley & Austin (R. Eden Martin, David Stahl, Dale Thomas, and D. Cameron Findlay, of counsel), Commonwealth Edison Company (Pamela Strobel and JoAnne Bloom, of counsel), and Phelan, Cahill & Quinlan, Ltd., (William Quinlan, of counsel), all of Chicago, for Commonwealth Edison Company.", "James E. Ryan, Attorney General, of Chicago (Janice Dale and Eve Moran, Assistant Attorneys General, of counsel), for the People.", "Susan S. Sher, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Jean Dobrer, Assistant Corporation Counsel, of counsel), for City of Chicago.", "Citizens Utility Board (Wanda Zatopa, of counsel) and Rowland & Moore (Stephen J. Moore, of counsel), both of Chicago, for Citizens Utility Board.", "John Kelliger and David McGann, Assistant Attorneys General, of Chicago, for appellee Illinois Commerce Commission.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Sharon Coleman, Marie Spicuzza, Leijuana Doss, and David Fein, Assistant State\u2019s Attorneys, of counsel), for People of Cook County.", "Lueders, Robertson & Konzen, of Granite City (Eric Robertson and Edward Fitzhenry, of counsel), for appellee Illinois Industrial Energy Consumers.", "John P. Meyer, of Danville, for appellee Board of Trustees of University of Illinois." ], "corrections": "", "head_matter": "CITIZENS UTILITY BOARD et al., Petitioners-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014THE CITY OF CHICAGO, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014THE PEOPLE ex rel. JAMES E. RYAN, Attorney General, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\u2014COMMONWEALTH EDISON COMPANY, Petitioner-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.\nFirst District (5th Division)\nNos. 1\u201495\u20140153, 1\u201495\u20140155, 1-\u201495\u20140156, 1\u201495\u20140659 cons.\nOpinion filed August 1, 1997,\nnunc pro tunc May 30, 1997.\nSidley & Austin (R. Eden Martin, David Stahl, Dale Thomas, and D. Cameron Findlay, of counsel), Commonwealth Edison Company (Pamela Strobel and JoAnne Bloom, of counsel), and Phelan, Cahill & Quinlan, Ltd., (William Quinlan, of counsel), all of Chicago, for Commonwealth Edison Company.\nJames E. Ryan, Attorney General, of Chicago (Janice Dale and Eve Moran, Assistant Attorneys General, of counsel), for the People.\nSusan S. Sher, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Jean Dobrer, Assistant Corporation Counsel, of counsel), for City of Chicago.\nCitizens Utility Board (Wanda Zatopa, of counsel) and Rowland & Moore (Stephen J. Moore, of counsel), both of Chicago, for Citizens Utility Board.\nJohn Kelliger and David McGann, Assistant Attorneys General, of Chicago, for appellee Illinois Commerce Commission.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Sharon Coleman, Marie Spicuzza, Leijuana Doss, and David Fein, Assistant State\u2019s Attorneys, of counsel), for People of Cook County.\nLueders, Robertson & Konzen, of Granite City (Eric Robertson and Edward Fitzhenry, of counsel), for appellee Illinois Industrial Energy Consumers.\nJohn P. Meyer, of Danville, for appellee Board of Trustees of University of Illinois." }, "file_name": "0300-01", "first_page_order": 318, "last_page_order": 328 }