Archibold v. PUBLIC UTILITIES COM'N
| Decision Date | 02 December 2002 |
| Docket Number | No. 01SA414.,01SA414. |
| Citation | 58 P.3d 1031 |
| Parties | John E. ARCHIBOLD; Harry A. Galligan, Jr.; Edythe S. Miller; and John B. Stuelpnagel, Petitioners-Appellants, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; and Raymond L. Gifford, Robert J. Hix, and Polly Page, Commissioners thereof in their official capacity; and U S West Communications, Inc. n/k/a Qwest Communications International, Inc., Respondents-Appellees. |
| Court | Colorado Supreme Court |
John B. Stuelpnagle, Grand Junction, Colorado, Attorney for Petitioners-Appellants.
Ken Salazar, Attorney General, Anne K. Botterud, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents-Appellees, The Public Utilities Commission of the State of Colorado and Raymond L. Gifford, Robert J. Hix, and Polly Page, Commissioners thereof in their official capacity.
Kris Ciccolo, Hale Hackstaff Tymkovich, Timothy M. Tymkovich, Richard A. Westfall, Denver, Colorado, Attorneys for Respondent-Appellee, U S WEST Communications, Inc. n/k/a Qwest Communications International, Inc.
Pursuant to section 40-6-115(1), 11 C.R.S. (2002), petitioners Archibold, Galligan, Miller, and Stuelpnagel (Archibold) appeal a decision of the Public Utilities Commission (PUC) requiring Qwest Communications (Qwest) to pay reparations to customers for violations of the PUC rules. Archibold alleges that the PUC should have sought civil penalties against Qwest for those violations instead of selecting a reparations remedy. The district court dismissed the appeal, finding the case to be moot because Qwest had already paid the required reparations to customers, in compliance with the PUC's decision. We affirm the dismissal of this appeal, but on different grounds. We hold that the PUC's selection of a reparations remedy instead of a civil penalties remedy did not exceed its authority.
The PUC staff investigated Qwest Communications International, Inc., formerly known as U S WEST Communications,1 for alleged violations of the PUC rules regulating telecommunication service providers. In July 1999, the PUC issued an Order to Show Cause, directing Qwest to appear at a PUC hearing and demonstrate why the PUC should not sanction the company for violating commission regulations.
Shortly after the PUC issued its Order to Show Cause, Archibold filed for intervention in the proceedings. Citing Qwest's monopoly status as the sole provider of local exchange service, Archibold's stated goal in intervening was to "ensure that any remedial action taken by the commission is consistent with current Colorado law." The PUC granted Archibold's motion to intervene.
The Office of Consumer Counsel (OCC) intervened in the proceeding as a matter of right, explaining that any remedy that the PUC would impose could affect consumers and the public interest, the viewpoint that the OCC is statutorily established to represent. §§ 40-6.5-104(1), -106(1)(b), 11 C.R.S. (2002). See Pub. Serv. Co. v. Trigen-Nations Energy Co., 982 P.2d 316, 326 (Colo. 1999) ().
The PUC held a public hearing on the record to determine whether Qwest had violated any commission regulations and, if so, to select the remedy or remedies for those violations. The PUC staff, the OCC, and Qwest filed written testimony and presented witnesses at the hearing; Archibold did neither.
The OCC and the PUC staff recommended to the PUC that it select the remedy of reparations to consumers and ratepayers. In a post-hearing written statement, Archibold requested the PUC to reject reparations and seek civil penalties against Qwest.
The PUC issued its Decision on Order to Show Cause, finding that Qwest violated the PUC rules 84,451 times.2 It ordered reparations to customers. The PUC calculated the reparations by examining information in commission files, including reports filed by Qwest.3 The PUC took administrative notice of this information,4 but later supplemented the record with information that had provided a basis for its calculations. The PUC explained, in detail, the processes it used to calculate the reparations.
Archibold argued that the PUC should seek civil penalties and not award reparations because the PUC could not determine either the identity of specific customers who had paid excessive charges or the amount each customer was overcharged. The PUC decided, nonetheless, to award reparations according to a methodology it found to be reasonably designed to redress the overcharges. It explained that Qwest's customers had experienced service defaults and paid for service they had not received. It rejected Archibold's argument that reparations should not be ordered and only civil penalties would suffice to redress the Qwest violations:
As for the suggestion that we cannot order reparations in this case because the record does not identify specific customers who paid excessive charges ... we conclude: Most of the rule requirements at issue here ... do not lend themselves to identifying the specific customers who were harmed by a violation of the rules. The nature of the interconnected public switched telephone network derives substantial value from being able to communicate with others. To some extent, as other customers have problems with service quality or connectivity, other customers are adversely impacted and the value paid-for is not received. Nevertheless, the method we adopt for awarding reparations here is reasonably designed to refund excessive charges to those groups of ratepayers... who were affected by the rule violations found here.
In response to the PUC's reparations order, Archibold filed an application for reconsideration, reargument, and rehearing. The PUC granted a limited rehearing to allow parties an opportunity to submit testimony and exhibits regarding the methodology the PUC used to calculate reparations. The PUC entered an interim stay of its decision and order, in order to prevent customer confusion in the event that the refund amount was changed on rehearing. Archibold did not present any testimony or exhibits at the rehearing; Qwest, the OCC and the PUC staff filed comments on the reparations methodology.
After the rehearing, the PUC adjusted and explained its methodology and ordered Qwest to pay customer reparations in the amount of $12,695,581, with interest at 10.11% from the effective date of the decision until the reparations were paid. The PUC refused to grant Archibold's request to institute a suit for civil penalties. See §§ 40-7-105, -109, 11 C.R.S. (2002). Commissioner Robert Hix filed a supplemental statement to the Decision on Rehearing, enunciating his position that the PUC should have proceeded "to state district court to enforce Colorado statutes and rules with respect to [Qwest's] violations of the Held Order Rule, 4 CCR 723-2-24, and to seek fines for these violations."5
Filing a motion for reconsideration, Archibold requested the commission to institute a court case through the Attorney General, in accordance with the dissent of Commissioner Hix. The PUC denied the motion.
In October and November 2000, Qwest paid the PUC-required reparations in full, with interest. Archibold took an appeal by means of certiorari to the district court under section 40-6-115(1), asking the court to set aside the reparations order and order the PUC to request the Attorney General to institute a suit for civil penalties. § 40-6-115(1), 11 C.R.S. (2002); see Trans Shuttle, Inc. v. Pub. Utils. Comm'n, 58 P.3d 47, 48-50 (Colo. 2002) ().
The district court ordered the PUC to certify the record and, later, dismissed the appeal as moot because Qwest had already paid the required reparations to its customers. Archibold moved for reconsideration and amendment of judgment, which the district court denied. On appeal under section 40-6-115(5), 11 C.R.S. (2002), Archibold requests that we set aside the reparations payment and order the PUC to commence a civil penalties lawsuit.6
We affirm the dismissal of this appeal, but on different grounds. We hold that the PUC's selection of a reparations remedy instead of a civil penalties remedy did not exceed its authority.
We first determine that this case is not moot. State Bd. of Chiropractic Exam'rs v. Stjernholm, 935 P.2d 959, 970 (Colo.1997) (internal citations omitted) (quoting Van Schaack Holdings, Ltd. v. L.C. Fulenwider, 798 P.2d 424, 427 (Colo.1990)).
In this case, Qwest had already paid reparations as ordered by the PUC. However, the remedy Archibold seeks on appeal of the PUC decision and order is to direct the institution of a civil penalties lawsuit. Archibold claims that the statutes applied to the facts of this case require the PUC to collect civil penalties. Although we disagree with Archibold on the merits of his contention, deferring as we do to the PUC's selection of a reparations remedy, the issue Archibold seeks to litigate is plainly not moot. This case presents an existing legal controversy, see Bd. of County Comm'rs v. Park County Sportsmen's Ranch, LLP, 45 P.3d 693, 698 (Colo.2002), and our decision will have legal effect. See Stjernholm, 935 P.2d at 970.
The fulcrum of Archibold's appeal is that the PUC pursued the "wrong" remedy, and we should order substitution of the "right" remedy.7 We now examine the merits of this contention.
To rectify unlawful utility action, the General Assembly provided the PUC with four primary remedies to select from.8 These remedies, which include...
To continue reading
Request your trial
-
Gale v. City of Denver
...401 P.3d 541, 546 (Colo. 2017). Stjernholm is cited with regard to other legal issues. See, e.g., Archibold v. Pub. Utilities Comm'n of State of Colo., 58 P.3d 1031, 1036 (Colo. 2002) (mootness); Hoffler v. Colo. Dep't of Corr., 27 P.3d 371, 374 (Colo. 2001) (official immunity). This leaves......
-
Eddie's Leaf Spring Shop v. Colorado Puc
...in pursuing alleged violations because the commission has special expertise in public utility regulation. See Archibold v. Pub. Utils. Comm'n, 58 P.3d 1031, 1037 (Colo.2002) (upholding the PUC's decision not to seek civil fines against a telecommunications company because the court "accord[......
-
Woldt v. People, No. 97SA193
...provision, given such a choice. We assign words and phrases their commonly accepted and understood meaning. Archibold v. Pub. Utils. Comm'n, 58 P.3d 1031, 1038 (Colo.2002). Section 18-1.3-401(5), the mandatory provision, directs a life sentence by employing the word "shall." See e.g. Pearso......
-
Francis ex rel. Goodridge v. Dahl, No. 03CA0785.
...that intent, courts look to the statutory language, giving words or phrases their commonly accepted meaning. Archibold v. Pub. Utils. Comm'n, 58 P.3d 1031 (Colo.2002). Section 13-21-101(1) plainly entitles plaintiff to prejudgment interest from the date her action accrued to the date judgme......