Chesapeake & Potomac Tel. Co. v. Public Service Com'n, 8718.

CourtCourt of Appeals of Columbia District
Citation339 A.2d 710
Docket NumberNo. 8718.,8718.
PartiesCHESAPEAKE AND POTOMAC TELE-PHONE CO., Petitioner, v. PUBLIC SERVICE COMMISSION of the District of Columbia, Respondent.
Decision Date10 June 1975

Frank M. Steadman, Jr., Washington, D.C., with whom Alfred Winchell Whittaker and John P. Barnes, Washington, D.C., were on the brief, for petitioner.

Linus H. Deeny, Asst. Corp. Counsel, Washington, D.C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and C. Belden White, II, Asst. Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before REILLY, Chief Judge, and FICKLING and NEBEKER, Associate Judges.

FICKLING, Associate Judge:

This is an appeal pursuant to D.C. Code 1973, § 43-705, from two orders issued by respondent Public Service Commission of the District of Columbia (hereinafter, Commission) in its consideration of the application by petitioner Chesapeake and Potomac Telephone Company (hereinafter, Telephone Company) for increased telephone rates.1 On May 10, 1974, by Order No. 5643, the Commission ruled that it was within its power to furnish free transcripts to intervening parties and charge the Telephone Company for the cost of these transcripts. By Order No. 5650, issued June 11, 1974, the Commission denied the Telephone Company's request for reconsideration.2

The issues raised on appeal are (1) whether the District of Columbia Administrative Procedure Act (APA)3 applies to proceedings before the Commission and (2) if so, whether the Commission erred in furnishing free transcripts to intervenors at the Telephone Company's expense.

On April 19, 1973, the Telephone Company requested authorization from the Commission to increase certain of its telephone rates. Pursuant to D.C.Code 1973, § 43-412, the Telephone Company deposited certain sums as ordered into the "Miscellaneous Trust Fund, District of Columbia" to defray the investigative expenses of the Commission. The Telephone Company subsequently learned that the Commission was drawing against this trust fund account to pay for transcripts which had been furnished to intervenors. By its letter of April 5, 1974, the Telephone Company challenged this practice citing Section 10(c) of the APA, D.C.Code 1973, § 1-1509, which requires each party requesting transcript copies to bear its proportionate share of preparation costs.

The Commission heard arguments on the issue of furnishing free transcripts to intervenors at a prehearing conference and on May 10, 1974, issued Order No. 5643 which, inter alia, resolved the issue against the Telephone Company. The Commission conceded that the APA prohibited the continuation of its past practice of charging the Telephone Company for transcripts given to intervenors, but concluded that it could loan transcripts to intervenors and assess the cost to the Telephone Company. The Commission stated:

[T]he Commission cannot ignore Secs. 43-402 and 43-408, D.C.Code 1973, which authorize the Commission, in effect, to do whatever is necessary in its opinion to resolve the issues framed in any investigation brought before or by it.

This section is supplemented by Sec. 43-1003, D.C.Code 1973 which requires that all sections of the enabling Act be liberally construed. The Commission has in the past required that the Company furnish intervenors with free transcripts in all cases in which the intervenors so request. In the majority of instances, the Commission has found the intervenors to be of substantial help to the Commission in reaching a fair and reasonable decision in the cases before it. The effectiveness of the intervenors' contribution to a case is materially aided if they have ready and unfettered access to transcripts of the proceedings, ideally a copy in their possession. . . .4

To effectuate its lending program, the Commission proposed to order sufficient copies of the transcripts to enable it to loan a copy to each intervenor, the cost of the additional transcripts to be charged against the Telephone Company's trust fund deposit in accordance with D.C. Code 1973, § 43-412.

On May 31, 1974, the Telephone Company applied for reconsideration of Order No. 5643, contending that the transcript loan arrangement proposed by the Commission contravened the unequivocal statutory language of Section 10(c) of the APA, D. C.Code 1973, § 1-1509. By Order No. 5650, dated June 11, 1974, the Commission denied the application stating:

The Commission does not believe that, the D.C. Administrative Procedure Act must, or should, be read to diminish the opportunity for parties in our proceedings to participate without unnecessary impediment financial or otherwise. Therefore, we reaffirm our ruling concerning the loan of transcripts to parties.5

This appeal followed.

The first issue to be resolved in this appeal is whether the APA applies to proceedings before the Commission.6 After a careful review of the legislative history of the APA, we find inescapable the conclusion that the Act was intended to apply to the Commission.

The legislative reports of Congress7 indicate that the APA was designed to promote uniformity among the more than 93 administrative agencies in the District of Columbia. These reports further indicate that Congress sought to promote uniformity in the areas of (1) compilation and publication of agency rules, (2) procedures to be followed by agencies in "contested cases," and (3) procedures for review from adverse agency determinations.8 It is clear that except in the area of appellate procedure and scope of review,9 the drafters of the APA intended the Act to apply to the Commission. This intent is reflected in testimony offered in support of the proposed legislation wherein the Commission was cited as an example of administrative arbitrariness and procedural obscurity.10 Moreover, the District of Columbia Administrative Practice Manual prepared by the District of Columbia Bar Association, the principal drafters of the APA, assumes the applicability of the APA to the Commission (except in regards to appellate procedure and standard of review) where it states:

The Commission's current procedures in most important respects conform to the requirement of the new Act, and the act does not change the method of appealing Commission orders. [Id. at 81.]

This conclusion that the drafters clearly intended the procedural requirements of APA to apply to the Commission was not weakened by the passage of Section 111 of the District of Columbia Court Reform and Criminal Procedure Act of 1970, D.C.Code 1973, § 11-722, which provides in pertinent part:

The District of Columbia Court of Appeals has jurisdiction (1) except as provided in clause (2), to review orders and decisions of . . . any agency of the District of Columbia . . . in accordance with the [APA]; and (2) to review orders and decisions of the [Commission] in accordance with [the Commission's organic act, D.C.Code Title 43, chapters 1-10].

It is clear from an analysis of the statutory language and legislative history that Congress, in enacting D.C.Code 1973, § 11-722, was attempting to achieve two goals. First, this statute was designed to complete the process, begun with the passage of the APA, of vesting in this court review jurisdiction over all District agencies. The Senate Committee Report on the District of Columbia Court Reform and Criminal Procedure Act of 1970 states:

The new section 11-722 provides for the review of orders and decisions by the District of Columbia Court of Appeals.11

Secondly, this statute seeks to standardize the standards and scope of review to be utilized by this court in its review of orders and decisions of all agencies except those of the Commission. D.C.Code 1973, § 11-722, provides that this court shall review determinations of the Commission "in accordance with" that agency's organic act.12

Therefore, we conclude that D.C. Code 1973, § 11-722, carves out only a limited area in which the APA is inapplicable to the Commission (i. e., standard and scope of review) rather than a wholesale exemption from APA coverage as argued by some writers.13 This position is consistent with that taken in Telephone Users Association v. Public Service Commission, D.C.App., 304 A.2d 293 (1973), cert. denied, 415 U.S. 933, 94 S.Ct. 1448, 39 L.Ed.2d 492 (1974), wherein Associate Judge Kern applied the scope of review standard set forth in D.C.Code 1973, § 43-706, but remanded the case to enable the Commission to make adequate findings as required by the APA, D.C.Code 1973, § 1-1509.

The only issue remaining is whether the Commission's decision to loan transcripts to intervenors at the expense of the Telephone Company conflicts with that portion of Section 10(c) of the APA, D. C.Code 1973, § 1-1509(c), which provides:

The cost incidental to the preparation of a copy or copies of a record or portion thereof shall be borne equally by all parties requesting the copy or copies.

We find the Commission's ruling to be in conflict with the above statute and therefore invalid.

The Commission, while conceding that it is precluded by the above statutory language from giving transcripts to intervenors at the expense of the Telephone Company,14 contends that it can charge the Company for the cost of the transcripts loaned to intervenors. The Commission, however, cites no authority for this proposition.

Likewise, we are unable to discern any congressional intent to condition the obligation to pay for transcripts on transfer of nominal title15. Rather, we find that the operative language of D.C.Code 1973, § 1-1509(c), requires each party "requesting" transcript copies to bear its proportionate share of the preparation costs. This obligation exists regardless of whether nominal title remains in the Commission or vests in the intervenor.

The Commission further contends that its decision to furnish free transcripts to intervenors at the ...

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