2023 Illinois Compiled Statutes › Chapter 35 - REVENUE › 35 ILCS 645/ - Electricity Infrastructure Maintenance Fee Law. › Article 5 - Electricity Infrastructure Maintenance Fee Law

(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 an 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. 98-756, eff. 7-16-14.)
(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.)