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Wade v. Illinois Commerce Commission

Court of Appeals of Illinois, First District, Sixth Division

December 1, 2017


         Petition for Review of an Order of the Illinois Commerce Commission. No. 16-0243 Leslie D. Haynes, Administrative Law Judge.

          JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Connors and Delort concurred in the judgment and opinion.



         ¶ 1 This is an administrative review action brought by pro se petitioner, Quinshela Wade, against Commonwealth Edison Company (ComEd) and the Illinois Commerce Commission (Commission) (collectively the respondents). Petitioner appeals from the order of the Commission denying her motion for summary judgment and granting ComEd's motion to dismiss. For the following reasons, we affirm the decision of the Illinois Commerce Commission in part and remand in part with directions.

         ¶ 2 BACKGROUND

         ¶ 3 On June 22, 2012, in accordance with the General Assembly's policy that Illinois electric utilities should upgrade their transmission and distribution infrastructure, the Commission approved ComEd's advanced metering infrastructure (AMI) plan and ordered ComEd to deploy "smart meters" throughout its entire service territory. See 220 ILCS 5/16-108.5 (West 2016); Commonwealth Edison Co., Ill. Comm. Comm'n No. 13-0285, at 3-5. (Order-Interim June 5, 2013) ("Approval of an Accelerated Meter Deployment Schedule, " setting forth revised accelerated schedule); Hawkins v. Commonwealth Edison Co., 2015 IL App (1st) 133678, ¶¶ 5-6. An AMI meter, or a "smart meter" as it is more commonly known, is a digital electric device that has the ability to measure a customer's electricity usage and to communicate these measurements wirelessly to the electric utility company. See 220 ILCS 5/16-108.6(a) (West 2016). Unlike traditional analog meters, smart meters enable an electric utility company, inter alia, to receive usage information from the customer's electric usage meter at regular intervals, eliminating the need for a meter reader to visit the customer's premises. Id.

         ¶ 4 On February 5, 2014, the Commission approved a tariff proposed by ComEd to address issues arising from customers who refused the installation of smart meters (hereinafter referred to as the tariff). Commonwealth Edison Co., Ill. Comm. Comm'n No. 13-0552, at 1 (Order-Final Feb. 5, 2014) ("Submission of Rider NAM, Non AMI Metering" (tariffs filed September 20, 2013)). The Commission ultimately approved a $21.53 monthly charge applicable to customers who refused to allow ComEd to install smart meters at their premises. Id. at 13. The $21.53 charge was to help offset costs associated with non-AMI meters, including the cost of manually reading such meters. Id. The Commission found the $21.53 charge to be cost-based and likely to deter smart meter refusals. Id. The Commission further directed ComEd to make the $21.53 charge a separate line item on each bill and to use language to make it clear that the charge is a direct consequence of the customer's refusal to allow an AMI installation. Commonwealth Edison Co., Ill. Comm. Comm'n No. 13-0552, at 1 (Order-Amendatory Mar. 19, 2014). The Commission recommended "Smart Meter Refusal Charge." Id.

         ¶ 5 When the time came to install the smart meter at petitioner's home, she refused to let ComEd do so. Petitioner's subsequent monthly bills from ComEd added the $21.53 charge, listed separately as "Smart Meter Refusal Charge." Petitioner thereupon began to deduct $21.53 from her payment to ComEd each month, and ComEd began to charge her late fees for failure to remit full payment of each monthly bill.

         ¶ 6 On April 4, 2016, petitioner filed a complaint against ComEd with the Commission, challenging the legality of the smart meter refusal charge. Petitioner moved for summary judgment in her favor. ComEd moved to dismiss petitioner's complaint with prejudice, arguing that the complaint failed as a matter of law because the smart meter refusal charge was mandated by the tariff.

         ¶ 7 On March 15, 2017, the Commission issued a final order denying petitioner's motion for summary judgment, granting ComEd's motion to dismiss, and dismissing petitioner's complaint with prejudice. In its order, the commission stated that the tariff "requires that ComEd charge [petitioner] the $21.53 Smart Meter Refusal Charge" as "[i]t costs ComEd more to send a meter reader to a customer's home because the smart meter automatically, electronically sends the meter reading to ComEd's facilities, without the cost of the meter reader's time, the car, and the gasoline, among other costs." The Commission concluded its order by stating that it found "no basis" for ruling in petitioner's favor.

         ¶ 8 Petitioner filed a motion for rehearing, which was denied by the Commission. Petitioner then filed a petition for review before this court.

         ¶ 9 ANALYSIS

         ¶ 10 We note that we have jurisdiction to review the final order of the Commission as petitioner filed a timely petition for review pursuant to Illinois Supreme Court Rule 335 (eff. July 1, 2017). See Kreutzer v. Illinois Commerce Comm'n, 404 Ill.App.3d 791, 796 (2010) (jurisdiction is vested simply by the timely filing of a petition for review in this court as required by Rule 335).

         ¶ 11 No other Illinois case has addressed this issue. Accordingly, this is a matter of first impression. The question before us is whether the Commission erred in denying petitioner's motion for summary judgment and dismissing her complaint with prejudice. The primary issue in answering this question, as presented by petitioner, is whether ComEd customers have a right to refuse installation of smart meters on their premises without paying a refusal fee. Petitioner also raises a procedural due process challenge regarding the fact that there was no ...

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