Article 5 - Illinois Statutes

      (35 ILCS 645/Art. 5 heading)ARTICLE 5

(35 ILCS 645/5‑1)     Sec. 5‑1. Short title. This Article shall be known and may be cited as the Electricity Infrastructure Maintenance Fee Law. (Source: P.A. 90‑561, eff. 8‑1‑98.)

(35 ILCS 645/5‑2)     Sec. 5‑2. Legislative intent. This Law is intended to create a uniform system for the imposition and collection of fees associated with the privilege of using the public right of way for the delivery of electricity. (Source: P.A. 90‑561, eff. 8‑1‑98.)

(35 ILCS 645/5‑3)     Sec. 5‑3. Definitions. For the purposes of this Law:     (a) "Electricity deliverer" means any person who uses any portion of any public rights of way of an Illinois municipality for the purpose of distributing, transmitting, or otherwise delivering electricity, regardless of its source, for use or consumption within that municipality, and not for resale. For purposes of this definition, use of the public rights of way shall not include the use of real property pursuant to the terms of an easement, lease, or other similar property interest held over municipally‑owned property.     (b) "Delivery of electricity" means the distribution, transmission, or other delivery of electricity through the use of the municipality's public rights of way, regardless of the source of the electricity, for use or consumption within that municipality, and not for resale. The term includes the delivery of electricity for use or consumption by the electricity deliverer, except for electricity used or consumed by the electricity deliverer for the production or distribution of electricity.     (c) "Person" means any natural individual, firm, trust, estate, partnership, association, joint stock company, joint adventure, corporation, limited liability company, municipal corporation, the State or any of its political subdivisions, any State university created by statute, or a receiver, trustee, guardian, or other representative appointed by order of any court.     (d) "Public rights of way" means streets, alleys, and similar public ways, and all areas over and under such public ways, title to which is owned by the municipality, and which are dedicated exclusively to public use.     (e) "Purchaser" means any person who uses or consumes, within the corporate limits of the municipality, electricity acquired in a purchase at retail.     (f) "Resale" includes any and all sales of electricity for the purpose of a subsequent sale to another, including the sale of electric energy within the meaning of the Federal Power Act (16 U.S.C. 824), but excluding the distribution of electricity to occupants of a building or buildings, or to a group of customers within the municipality, by a person who owns, controls or manages, or acts as agent for, the building, buildings, or group of customers. (Source: P.A. 90‑561, eff. 8‑1‑98.)

(35 ILCS 645/5‑4)     Sec. 5‑4. Right to franchise contract. A municipality shall be entitled to require a franchise contract from an electricity deliverer as a condition of allowing the electricity deliverer to use any portion of any public right of way within the municipality for the placement and maintenance of facilities for distributing, transmitting, or delivering electricity. Such franchise contract shall be established by ordinance and shall be valid when accepted in writing by the electricity deliverer. (Source: P.A. 90‑561, eff. 8‑1‑98.)

(35 ILCS 645/5‑5)     Sec. 5‑5. Municipal electricity infrastructure maintenance fee.     (a) Any municipality that on the effective date of this Law had in effect a franchise agreement with an electricity deliverer may impose an infrastructure maintenance fee upon electricity deliverers, as compensation for granting electricity deliverers the privilege of using public rights of way, in an amount specified in subsection (b) of this Section. If more than one electricity deliverer is responsible for the delivery of the same electricity to the same consumer, the fee related to that electricity shall be imposed upon the electricity deliverer who last physically uses the public way for delivery of that electricity prior to its consumption.     (b) (1) In municipalities with a population greater than 500,000, the amount of the infrastructure maintenance fee imposed under this Section shall not exceed the following maximum rates for kilowatt‑hours delivered within the municipality to each purchaser:         (i) For the first 2,000 kilowatt‑hours of

electricity used or consumed in a month: 0.53 cents per kilowatt‑hour;

(ii) For the next 48,000 kilowatt‑hours of

electricity used or consumed in a month: 0.35 cents per kilowatt‑hour;

(iii) For the next 50,000 kilowatt‑hours of

electricity used or consumed in a month: 0.31 cents per kilowatt‑hour;

(iv) For the next 400,000 kilowatt‑hours of

electricity used or consumed in a month: 0.305 cents per kilowatt‑hour;

(v) For the next 500,000 kilowatt‑hours of

electricity used or consumed in a month: 0.30 cents per kilowatt‑hour;

(vi) For the next 2,000,000 kilowatt‑hours of

electricity used or consumed in a month: 0.28 cents per kilowatt‑hour;

(vii) For the next 2,000,000 kilowatt‑hours of

electricity used or consumed in a month: 0.275 cents per kilowatt‑hour;

(viii) For the next 5,000,000 kilowatt‑hours of

electricity used or consumed in a month: 0.27 cents per kilowatt‑hour;

(ix) For the next 10,000,000 kilowatt‑hours used or

consumed in a month: 0.265 cents per kilowatt‑hour;

(x) For all kilowatt‑hours of electricity in excess

of 20,000,000 kilowatt‑hours used or consumed in a month: 0.26 cents per kilowatt‑hour.

(2) In municipalities with a population of 500,000 or less, the amount of the infrastructure maintenance fee imposed under this Section shall be imposed based on the kilowatt‑hour categories set forth above and shall be calculated on a monthly basis for kilowatt‑hours of electricity delivered to each purchaser; provided, that if, immediately prior to imposing an infrastructure maintenance fee, such municipality receives franchise fees, permit fees, free electrical service, or other forms of compensation pursuant to an existing franchise agreement, the rates established for these kilowatt‑hour categories for such infrastructure maintenance fee during the term of the franchise agreement shall not exceed rates reasonably calculated, at the time such infrastructure maintenance fee is initially imposed, to generate an amount of revenue equivalent to the value of the compensation received or provided under the franchise agreement.     (3) Notwithstanding any other provision of this subsection (b), a fee shall not be imposed if and to the extent that imposition or collection of the fee would violate the Constitution or statutes of the United States or the statutes or Constitution of the State of Illinois.     (c) Any electricity deliverer may collect the amount of a fee imposed under this Section from the purchaser using or consuming the electricity with respect to which the fee was imposed. The fee may be collected by the electricity deliverer from the purchaser as a separately stated charge on the purchaser's bills or in any other manner permitted from time to time by law or by the electricity deliverer's tariffs. The electricity deliverer shall be allowed credit for any portion of the fee related to deliveries of electricity the charges for which are written off as uncollectible, provided, that if such charges are thereafter collected, the electricity deliverer shall be obligated to pay such fee. For purposes of this Section, any partial payment not specifically identified by the purchaser shall be deemed to be for the delivery of electricity. No ordinance imposing the fee authorized by this Section with respect to the kilowatt‑hours delivered to non‑residential customers shall be effective until October 1, 1999. For purposes of this Law, the period of time from the effective date of this Law through and including September 30, 1999 shall be referred to as the "Initial Period."     (d) As between the electricity deliverer and the municipality, the fee authorized by this Section shall be collected, enforced, and administered by the municipality imposing the fee. Any municipality adopting an ordinance imposing an infrastructure maintenance fee under this Law shall give written notice to each electricity deliverer subject to the fee not less than 60 days prior to the date the fee is imposed. (Source: P.A. 90‑561, eff. 8‑1‑98.)

(35 ILCS 645/5‑6)     Sec. 5‑6. Validity of existing franchise fees and agreement; police powers.     (a) On and after the effective date of this Law, no electricity deliverer paying an infrastructure maintenance fee imposed under this Law may be denied the right to use, directly or indirectly, public rights of way because of the failure to pay any other fee or charge for the right to use those rights of way except to the extent that the electricity deliverer during the Initial Period fails under any existing franchise agreement to pay franchise fees which are based on the gross receipts or gross revenues attributable to non‑residential customers or to provide free electrical service or other compensation attributable to non‑residential customers. A municipality that imposes an infrastructure maintenance fee pursuant to Section 5‑5 shall impose no other fees or charges upon electricity deliverers for such use except as provided by subsections (b) or (c) of this Section.     (b) Agreements between electricity deliverers and municipalities regarding use of the public way shall remain valid according to and for their stated terms. However, a municipality that, pursuant to a franchise agreement in existence on the effective date of this Law, receives any franchise fees, permit fees, free electrical service or other compensation for use of the public rights of way, may impose an infrastructure maintenance fee pursuant to this Law only if the municipality: (1) waives its right to receive all compensation from the electricity deliverer for use of the public rights of way during the time the infrastructure maintenance fee is imposed, except as provided in subsection (c), and except that during the Initial Period any municipality may continue to receive franchise fees, free electrical service or other compensation from the electricity deliverer which are equal in value to the Initial Period Compensation; and (2) provides written notice of this waiver to the appropriate electricity deliverer at the time that the municipality provides notice of the imposition of the infrastructure maintenance fee under subsection (d) of Section 5‑5. For purposes of this Section, "Initial Period Compensation" shall mean the total amount of compensation due under the existing franchise agreement during the Initial Period less the amount of the infrastructure maintenance fee imposed under this Section during the Initial Period.     (c) Nothing in this Law prohibits a municipality from the reasonable exercise of its police powers over the public rights of way. In addition, a municipality may require an electricity deliverer to reimburse any special or extraordinary expenses or costs reasonably incurred by the municipality as a direct result of damages to its property or public rights of way, such as the costs of restoration of streets damaged by a electricity deliverer that does not make timely repair of the damage, or for the loss of revenue due to the inability to use public facilities as a direct result of the actions of the electricity deliverer, such as parking meters that are required to be removed because of work of an electricity deliverer. (Source: P.A. 90‑561, eff. 8‑1‑98.)

    (35 ILCS 645/5‑10)
    Sec. 5‑10. Municipal tax review; requests for information.
    (a) A municipality may conduct an audit of fees under this Act to determine the accuracy of the fees paid by an electricity deliverer.
    (b) Not more than once every 2 years, a municipality that has imposed a fee under this Law may, subject to the limitations and protections stated in Section 16‑122 of the Public Utilities Act, request any information from an electricity deliverer that the municipality reasonably requires in order to perform an audit under subsection (a). The information that may be requested by the municipality includes, without limitation:
        (1) in an electronic format, the database used by the

electricity deliverer to determine the amount due to the municipality; provided, however, that, if the municipality has requested customer‑specific billing, usage, and load shape data from an electricity deliverer that is an electric utility and has not provided the electric utility with the verifiable authorization required by Section 16‑122 of the Public Utilities Act, then the electric utility shall remove from the database all customer‑specific billing, usage, and load shape data before providing it to the municipality; and

(2) in a format used by the public utility in the

ordinary course of its business, summary data, as needed by the municipality, to determine the unit consumption by providing the gross kilowatt‑hours or other units of measurement subject to the fee imposed by this Law within the municipal jurisdiction.

(c) Each electricity deliverer must provide the information requested under subsection (b) within:         (1) 60 days after the date of the request if the

population of the requesting municipality is 500,000 or less; or

(2) 90 days after the date of the request if the

population of the requesting municipality exceeds 500,000.

The time in which an electricity deliverer must provide

the information requested under subsection (b) may be extended by an agreement between the municipality and the electricity deliverer. If an electricity deliverer receives, during a single month, information requests from more than 2 municipalities, or the aggregate population of the requesting municipalities is 100,000 customers or more, the electricity deliverer is entitled to an additional 30 days to respond to those requests.

(d) If an audit by the municipality or its agents finds

an error by the electricity deliverer in the amount of fees collected or paid by the electricity deliverer, then the municipality must notify the electricity deliverer of the error. Any such notice must be issued pursuant to Section 30 of the Local Government Taxpayers' Bill of Rights Act or a lesser period of time from the date the fee was due that may be specified in the municipal ordinance imposing the fee. Upon such a notice, any audit shall be conducted pursuant to Section 35 of the Local Government Taxpayers' Bill of Rights Act subject to the timelines set forth in this subsection (d). The electricity deliverer must submit a written response within 60 days after the date the notice was postmarked stating that it has corrected the error or stating the reason that the error is inapplicable or inaccurate. The municipality then has 60 days after the receipt of the electricity deliverer's response to review and contest the conclusion of the electricity deliverer. If the parties are unable to agree on the disposition of the audit findings within 120 days after the notification of the error to the electricity deliverer, then either party may submit the matter for appeal as outlined in Section 40 of the Local Government Taxpayers' Bill of Rights Act. If the appeals process does not produce a satisfactory result, then either party may pursue the alleged error in a court of competent jurisdiction.

(e) Electricity deliverers and municipalities are not liable for any error in past collections and payments that was unknown to either the electricity deliverer or the municipality prior to the audit process unless the error was due to negligence in the collection or processing of required data. If, however, an error in past collections or payments resulted in a customer, who should not have owed a fee to any municipality, having paid a fee to a municipality, then the customer may, to the extent allowed by Section 9‑252 of the Public Utilities Act, recover the fee from the electricity deliverer, and any amount so paid by the electricity deliverer may be deducted by that electricity deliverer from any fees or taxes then or thereafter owed by the electricity deliverer to that municipality.     (f) All account specific information provided by an electricity deliverer under this Section may be used only for the purpose of an audit of fees conducted under this Section and the enforcement of any related claim. All such information must be held in strict confidence by the municipality and its agents and may not be disclosed to the public under the Freedom of Information Act or under any other similar statutes allowing for or requiring public disclosure.     (g) The provisions of this Section shall not be construed as diminishing or replacing any civil remedy available to a municipality, taxpayer, or tax collector.     (h) This Section does not apply to any municipality having a population greater than 1,000,000. (Source: P.A. 96‑1422, eff. 8‑3‑10.)