220 ILCS 5/4-502

(220 ILCS 5/4-502)

Sec. 4-502. Small public utility or telecommunications carrier; acquisition by capable utility; Commission determination; procedure.

(a) The Commission may provide for the acquisition of a small public utility or telecommunications carrier by a capable public utility or telecommunications carrier, if the Commission, after notice and an opportunity to be heard, determines one or more of the following:

(1) the small public utility or telecommunications carrier is failing to provide safe, adequate, or reliable service;

(2) the small public utility or telecommunications carrier no longer possesses sufficient technical, financial, or managerial resources and abilities to provide the service or services for which its certificate was originally granted;

(3) the small public utility or telecommunications carrier has been actually or effectively abandoned by its owners or operators;

(4) the small public utility or telecommunications carrier has defaulted on a bond, note, or loan issued or guaranteed by a department, office, commission, board, authority, or other unit of State government;

(5) the small public utility or telecommunications carrier has wilfully failed to comply with any provision of this Act, any other provision of State or federal law, or any rule, regulation, order, or decision of the Commission; or

(6) the small public utility or telecommunications carrier has wilfully allowed property owned or controlled by it to be used in violation of this Act, any other provision of State or federal law, or any rule, regulation, order, or decision of the Commission.

(b) As used in this Section, "small public utility or telecommunications carrier" means a public utility or telecommunications carrier that regularly provides service to fewer than 7,500 customers.

(c) In making a determination under subsection (a), the Commission shall consider all of the following:

(1) The financial, managerial, and technical ability of the small public utility or telecommunications carrier.

(2) The financial, managerial, and technical ability of all proximate public utilities or telecommunications carriers providing the same type of service.

(3) The expenditures that may be necessary to make improvements to the small public utility or telecommunications carrier to assure compliance with applicable statutory and regulatory standards concerning the adequacy, efficiency, safety, or reasonableness of utility service.

(4) The expansion of the service territory of the acquiring capable public utility or telecommunications carrier to include the service area of the small public utility or telecommunications carrier to be acquired.

(5) Whether the rates charged by the acquiring capable public utility or telecommunications carrier to its acquisition customers will increase unreasonably because of the acquisition.

(6) Any other matter that may be relevant.

(d) For the purposes of this Section, a "capable public utility or telecommunications carrier" means a public utility, as defined under Section 3-105 of this Act, including those entities listed in items (1) through (5) of subsection (b) of Section 3-105, or a telecommunications carrier, as defined under Section 13-202 of this Act, including those entities listed in subsections (a) and (b) of Section 13-202, that:

(1) regularly provides the same type of service as the small public utility or telecommunications carrier, to 7,500 or more customers, and provides safe, adequate, and reliable service to those customers; however, public utility or telecommunications carrier that would otherwise be a capable public utility except for the fact that it has fewer than 7,500 customers may elect to be a capable public utility or telecommunications carrier for the purposes of this Section regardless of the number of its customers and regardless of whether or not it is proximate to the small public utility or telecommunications carrier to be acquired;

(2) is not an affiliated interest of the small public utility or telecommunications carrier;

(3) agrees to acquire the small public utility or telecommunications carrier that is the subject of the proceeding, under the terms and conditions contained in the Commission order approving the acquisition; and

(4) is financially, managerially, and technically capable of acquiring and operating the small public utility or telecommunications carrier in compliance with applicable statutory and regulatory standards.

(e) The Commission may, on its own motion or upon petition, initiate a proceeding in order to determine whether an order of acquisition should be entered. Upon the establishment of a prima facie case that the acquisition of the small public utility or telecommunications carrier would be in the public interest and in compliance with the provisions of this Section all of the following apply:

(1) The small public utility or telecommunications carrier that is the subject of the acquisition proceedings has the burden of proving its ability to render safe, adequate, and reliable service at just and reasonable rates.

(2) The small public utility or telecommunications carrier that is the subject of the acquisition proceedings may present evidence to demonstrate the practicality and feasibility of the following alternatives to acquisition:

(A) the reorganization of the small public utility or telecommunications carrier under new management;

(B) the entering of a contract with another public utility, telecommunications carrier, or a management or service company to operate the small public utility or telecommunications carrier;

(C) the appointment of a receiver to operate the small public utility or telecommunications carrier, in accordance with the provisions of Section 4-501 of this Act; or

(D) the merger of the small public utility or telecommunications carrier with one or more other public utilities or telecommunications carriers.

(3) A public utility or telecommunications carrier that desires to acquire the small public utility or telecommunications carrier has the burden of proving that it is a capable public utility or telecommunications carrier.

(f) Subject to the determinations and considerations required by subsections (a), (b), (c), (d) and (e) of this Section, the Commission shall issue an order concerning the acquisition of the small public utility or telecommunications carrier by a capable public utility or telecommunications carrier. If the Commission finds that the small public utility or telecommunications carrier should be acquired by the capable public utility or telecommunications carrier, the order shall also provide for the extension of the service area of the acquiring capable public utility or telecommunications carrier.

(g) The price for the acquisition of the small public utility or telecommunications carrier shall be determined by agreement between the small public utility or telecommunications carrier and the acquiring capable public utility or telecommunications carrier subject to a determination by the Commission that the price is reasonable. If the small public utility or telecommunications carrier and the acquiring capable public utility or telecommunications carrier are unable to agree on the acquisition price or the Commission disapproves the acquisition price upon which they have agreed, the Commission shall issue an order directing the acquiring capable public utility or telecommunications carrier to acquire the small public utility or telecommunications carrier by following the procedure prescribed for the exercise of the powers of eminent domain under Section 8-509 of this Act.

(h) The Commission may, in its discretion and for a reasonable period of time after the date of acquisition, allow the acquiring capable public utility or telecommunications carrier to charge and collect rates from the customers of the acquired small public utility or telecommunications carrier under a separate tariff.

(i) A capable public utility or telecommunications carrier ordered by the Commission to acquire a small public utility or telecommunications carrier shall submit to the Commission for approval before the acquisition a plan, including a timetable, for bringing the small public utility or telecommunications carrier into compliance with applicable statutory and regulatory standards.

(Source: P.A. 95-481, eff. 8-28-07.)