Casey v. Public Service Com'n of West Virginia

• Decision Date: 14 April 1995
• Docket Number: No. 22483,22483
• Citation: 193 W.Va. 606,457 S.E.2d 543
• Court: West Virginia Supreme Court
• Parties: James CASEY and Brenda Hightower, Plaintiffs Below, Appellants, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; GTE South, Inc.; and AT & T Communications of West Virginia, a Corporation, Defendants Below, Appellees.

Page 543

457 S.E.2d 543

193 W.Va. 606

James CASEY and Brenda Hightower, Plaintiffs Below, Appellants, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; GTE South Inc.; and AT & T Communications of West Virginia a Corporation, Defendants Below, Appellees.

No. 22483.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1995.

Decided April 14, 1995.

Syllabus by the Court

1. " 'The public service commission has the statutory power and authority to control the facilities, charges and services of all public utilities and to hear and determine the complaints of persons entitled to the services which such utilities afford; and the only limitation upon such power and authority is that the requirements shall not be contrary to law and that they shall be just and fair, just and reasonable, and just and proper.' Syllabus Point 6, State ex rel. City of Wheeling v. Renick, 145 W.Va. 640, 116 S.E.2d 763 (1960)." Syl. pt. 2, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988).

2. "The Public Service Commission of West Virginia has no jurisdiction and no power or authority except as conferred on it by statute and necessary implications therefrom, and its power is confined to the regulation of public utilities. It has no inherent power or authority." Syl. pt. 2, Wilhite v. Public Service Commission, 150 W.Va. 747, 149 S.E.2d 273 (1966).

3. Where a billing dispute arises between an interstate telephone company and a customer concerning interstate telephone calls, which interstate calls are regulated by the Federal Communications Commission, and the Federal Communications Commission has an on-going procedure for the resolution of such disputes, the Communications Act of 1934, set forth in 47 U.S.C. § 151, et seq., preempts the jurisdiction of the Public Service Commission of West Virginia to resolve such interstate telephone billing disputes, even though the Federal Communications Commission deferred to the states the determination of whether and under what circumstances local exchange carriers will be allowed to offer disconnection for nonpayment services to the interstate telephone company.

Jeffrey W. Molenda, Appalachian Research and Defense Fund, Inc., Fayetteville, for appellants.

Steven Hamula, Charleston, for appellee, Public Service Com'n.

Mark A. Keffer, Oakton, VA, for appellee, AT & T Communications of W. Va.

Kimberly Caswell, GTE Telephone Services, Tampa, FL, for appellee, GTE South, Inc.

Terry D. Blackwood, Deputy Consumer Advocate, Charleston, for Consumer Advocate Division of the Public Service Com'n of W. Va. amicus curiae.

Joan Wise, Office of the General Counsel, American Ass'n of Retired Persons, Washington, DC, for American Ass'n of Retired Persons, Community Action for Fair Utility Practice (Chicago, IL), Appalachian Peoples' Action Coalition (Athens, OH), Diane Asmus (Hillsboro, OR), Community Educ. and Protection Ass'n (Philadelphia, PA) and Vermont Low-Income Advocacy Council (Montpelier, VT) amicus curiae.

McHUGH, Justice:

The appellants, James Casey and Brenda Hightower, appeal the March 18, 1994 order of the Public Service Commission of West Virginia (hereinafter "the PSC"), which held that the PSC did not have jurisdiction to decide a billing dispute involving interstate telephone calls. The appellees are the Public Service Commission and AT & T Communications of West Virginia. For reasons set forth below, we affirm the order of the PSC.

I

The dispute in the case before us arose after Ms. Hightower's daughter, Shawntawny Hightower, moved in with Ms. Hightower and Mr. Casey. Shawntawny placed third-party calls from the Casey/Hightower residence using telephone numbers her boyfriend had given her; however, the third parties to whom these calls were billed refused to accept responsibility for the calls. Therefore, the calls were rebilled to the Casey/Hightower residence. The appellants contended that since Shawntawny's boyfriend gave her the false telephone numbers, he should be responsible for the telephone bill. Accordingly, on June 1, 1993, the appellants filed a complaint with the PSC against the appellees and GTE South, Incorporated (hereinafter "GTE"), a defendant below. GTE is a local exchange carrier that bills interstate telephone calls for AT & T and local and intrastate long-distance telephone calls. The dispute involves approximately $1300 for over 150 telephone calls.

GTE removed one of the disputed calls from the bill. Thereafter, GTE asserted that the remaining calls in dispute were AT & T calls and that GTE could not adjust the charges associated with these calls. The Administrative Law Judge agreed with GTE and, therefore, dismissed GTE from the action.

AT & T filed a letter with the PSC on October 18, 1993, stating that it had removed all disputed intrastate calls from the telephone bill. The only disputed calls remaining were interstate calls. Thus, AT & T argued that the PSC lacked jurisdiction to adjudicate the dispute pursuant to the Communications Act of 1934, as amended, which gives the Federal Communications Commission (hereinafter the "FCC") broad preemptive power over interstate wire communications, ¹ which includes telephone communication. See 47 U.S.C. § 151, et seq.

The PSC agreed with AT & T. Consequently, on February 2, 1994, the PSC dismissed the appellants' complaint without prejudice. ² On March 18, 1994, the PSC denied the appellants' petition for reconsideration. Thereafter, the appellants filed this appeal.

II

The issue before us is whether the PSC has jurisdiction over billing disputes involving interstate telephone calls when the local exchange carrier bills and collects for the interstate calls. The appellants maintain that although the FCC has jurisdiction over the rates charged for interstate calls, the states, and therefore, the PSC, have jurisdiction over interstate billing disputes which serve as the basis for the disconnection of intrastate and interstate telephone services, the imposition of late payment charges, and the demand for deposits to continue or begin intrastate telephone service. Conversely, the appellees contend that the FCC has exclusive jurisdiction over interstate billing disputes since the disputes involve the application and interpretation of AT & T's interstate tariff.

The resolution of this issue involves the interpretation of the Communications Act of 1934. See 47 U.S.C. § 151, et seq. Specifically, the Communications Act of 1934 gives the FCC broad authority to regulate "interstate and foreign commerce in communication by wire and radio so as to make available ... to all the people of the United States a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges[.]" 47 U.S.C. § 151 (1988), in relevant part. Although Congress gave the FCC broad preemptive authority, this authority was not given without limitations: "nothing in this chapter shall be construed to apply or to give the [FCC] jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier[.]" 47 U.S.C. § 152(b) (1988), ³ in pertinent part.

The Communications Act of 1934 attempts to establish a system of dual state and federal regulation by

'divid[ing] the world of telephone regulation neatly into two separate components:' interstate communications, which can be regulated by the FCC; and intrastate communications, which cannot.... However, 'since most aspects of the communications field have overlapping interstate and intrastate components, th[is] ... section[ ] do[es] not create a simple division; rather, [it] create[s] a persistent jurisdictional tension.'

Pub. Serv. Comm'n of Maryland v. Fed. Communications Comm'n, 909 F.2d 1510, 1514 (D.C.Cir.1990) (citing to Public Util. Comm'n of Texas v. FCC, 886 F.2d 1325, 1329 (D.C.Cir.1989)). This jurisdictional tension has created an anomaly of decisions by the FCC and the courts as they attempt to define when the FCC has preemptive power over state regulation. See Richard McKenna, Preemption Under the Communications Act, 37 Fed. Comm. L.J. 1, 6 (1985). Consequently, our analysis of the issue before us is hindered by the confusion which persists in this area. Therefore, a historical background is necessary in order to facilitate an understanding of the FCC's preemptive power.

We are mindful that the Congress or a federal agency acting within the scope of its congressionally delegated authority has the power to preempt state regulation pursuant to the Supremacy Clause of ARTICLE VI OF THE U.S. CONST⁴. See generally, Louisiana Pub. Serv. Comm'n v. Fed. Communications Comm'n, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369, 381-82 (1986) (hereinafter "Louisiana PSC"). The Supreme Court of the United States has provided a useful analysis of preemption pursuant to the Supremacy Clause:

Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, ... when there is outright or actual conflict between federal and state law, ... where compliance with both federal and state law is in effect physically impossible, ... where there is implicit in federal law a barrier to state regulation, ... where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, ... or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

Id. (citations omitted). The Supreme Court of the United States further noted "[t]he critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law." Id. at 369, 106 S.Ct. at 1899, 90 L.Ed.2d at 382 (citation omitted). It is this question which has proved most...