specially concurring:
I concur with the majority decision and write separately to emphasize several points. The record developed before the Commission revealed the City’s failure to adduce sufficient and appropriate evidence to support its opposition to the order in question.
The Commission’s proceeding investigated restructuring of Edison’s rates so that any franchise-type costs imposed on Edison by a unit of local government would be recovered solely from Edison’s customers within the geographic confines of the particular unit of local government receiving such compensation. In doing so, the City claims, the Commission’s order did not fully consider real estate taxes or payments for private rights-of-way or other costs accrued within individual communities. The City suggests that this omission renders the Commission’s order unreasonable and violates the law. The City also argues that utility growth and capital investment in recent years primarily has been for the benefit of suburban communities outside of Chicago.
The City insists that the Commission should not require only Chicago ratepayers to pay for Chicago’s franchise fees while continuing to spread other costs imposed on Edison for serving the suburbs to all Edison ratepayers; however, the City has failed to support its argument that franchise fees must be considered in the same category as these other costs imposed on Edison. The concept of cost localization followed by the Commission is neither novel nor new; the City itself concedes that the supreme court has authorized localization of franchise fee cost recovery in the past. Village of Maywood v. Illinois Commerce Comm’n, 23 Ill. 2d 447, 178 N.E.2d 345 (1961); City of Elmhurst v. Western United Gas & Electric Co., 363 Ill. 144, 1 N.E.2d 489 (1936). The City was required to introduce evidence to demonstrate why localizing only franchise fees was discriminatory or unreasonable. A review of the record, even in a light most favorable to the City, demonstrates an absence of evidentiary support for any such conclusion.
This court is required to determine whether the decision of the Commission is so flawed that it must be set aside. Our limited powers of review do not give us authority to substitute our judgment for that of the Commission, absent the required evidence which would demonstrate that the determination was unreasonable or in violation of law. The record here is sufficient to support the Commission’s order and conclusion, in the absence of countervailing evidence. This is not to suggest that any such evidence does not exist; the City very well may have been able to demonstrate why localizing franchise fees, while continuing to spread other costs, was not reasonable; it has failed to do so in this case. I therefore concur with the majority.