GTE North Inc. v. Public Service Com'n of Wisconsin

• Decision Date: 27 April 1993
• Docket Number: No. 91-0552,91-0552
• Citation: 176 Wis.2d 559,500 N.W.2d 284
• Parties: , 145 P.U.R.4th 110 GTE NORTH INCORPORATED, Petitioner-Appellant-Cross Respondent, v. PUBLIC SERVICE COMMISSION OF WISCONSIN, Respondent-Respondent-Cross Appellant-Petitioner. . Oral Argument
• Court: Wisconsin Supreme Court

Page 284

500 N.W.2d 284

176 Wis.2d 559, 145 P.U.R.4th 110

GTE NORTH INCORPORATED, Petitioner-Appellant-Cross Respondent, v. PUBLIC SERVICE COMMISSION OF WISCONSIN Respondent-Respondent-Cross Appellant-Petitioner.

No. 91-0552.

Supreme Court of Wisconsin.

Oral Argument April 27, 1993.

Decided June 3, 1993.

For the petitioner-appellant-cross respondent there was a brief by David E. Hightower, Bloomington, IL and Thomas Terwilliger, Wausau and oral argument by Mr. Hightower.

BABLITCH, Justice.

The only issue before this court is whether the Wisconsin Public Service Commission (PSC) has the statutory authority to order a refund of compensation collected by a utility in violation of its filed tariffs. The court of appeals held that the PSC does not have this authority. We conclude that the statutes, supported by public policy, compel an opposite result. Accordingly, we reverse.

The procedural history of this case is complicated and lengthy. Mercifully, for purposes of our review only a brief recitation of the history is necessary. This case arose from a dispute concerning the legality of certain contracts entered into between GTE North Incorporated (GTE) and Harold Mohr (Mohr), whereby GTE provided time and temperature announcement services to Mohr. The PSC concluded that GTE's contracts with Mohr were unlawful because they were not authorized by tariff and therefore were in violation of the filed rate doctrine. See secs. 196.19, 196.22, 196.604, and 196.60, Stats., below. ¹ The PSC ordered GTE to refund payments made by Mohr under the contracts. The PSC now appeals that portion of a court of appeals' decision which held that the PSC does not have the authority to order a refund of compensation collected by a utility in violation of its filed tariffs. The court of appeals also concluded that the PSC did not sufficiently explain why it concluded that GTE's contracts with Mohr were not authorized under GTE's "Special Equipment or Special Assemblies of Equipment" tariff. The court of appeals remanded on that issue. However, for purposes of the resolution of the issue before us, we must assume that GTE's contracts with Mohr were not authorized by tariff.

Decisions of an agency which deal with the scope of the agency's own power are not binding on this court. Wis. Environmental Decade v. Public Service Comm., 81 Wis.2d 344, 351, 260 N.W.2d 712 (1978). "The commission is an administrative body created by the legislature. Its powers are limited by the statutes conferring such power expressly or by fair implication." Mid-Plains Telephone v. Public Serv. Comm., 56 Wis.2d 780, 786, 202 N.W.2d 907 (1973). Thus, the nature and scope of the PSC's authority is a matter of statutory interpretation or construction. Grogan v. Public Service Commission, 109 Wis.2d 75, 77, 325 N.W.2d 82 (1982). We need not defer to the lower courts on matters involving the meaning of statutes. Id.

The arguments of the parties in this case center around the meaning of two statutory sections in chapter 196 of the Wisconsin statutes, secs. 196.02 and 196.37(2), Stats. These sections provide respectively in relevant part:

196.02 Commission's powers. (1) Jurisdiction. The commission has jurisdiction to supervise and regulate every public utility in this state and to do all things necessary and convenient to its jurisdiction.

196.37(2) If the commission finds that any measurement, regulation, practice, act or service is unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, or that any service is inadequate, or that any service which reasonably can be demanded cannot be obtained, the commission shall determine and make any just and reasonable order relating to a measurement, regulation, practice, act or service to be furnished, imposed, observed and followed in the future.

GTE argues that neither statutory section gives the PSC explicit or implicit authority to issue a refund of compensation collected by a utility in violation of its filed tariffs. Specifically, GTE contends that sec. 196.37(2)'s phrase "in the future" places a limitation on the PSC's power to formulate only prospective remedies. Thus, according to GTE, the PSC may order future changes in utility charges, practices, acts or services, but may not order remedies, such as refunds, for past charges, practices, acts or services that are now determined to have been unlawful.

In addition, GTE asserts that sec. 196.02(1), Stats., cannot be used to confer on the PSC the authority to order a refund because its general plenary language is restricted by the more specific language of sec. 196.37(2). In support of this contention, GTE cites case law holding that if a specific statutory grant of authority to a state agency conflicts with a more general grant, the specific statute controls. See, e.g., Martineau v. State Conservation Comm., 46 Wis.2d 443, 449, 175 N.W.2d 206 (1970). GTE insists that the specific language of sec. 196.37 places a limit on the PSC's authority whereby the PSC can order only prospective remedies, and thus sec. 196.37(2) controls over any broad and general grant of power found in sec. 196.02. We do not agree with GTE's contentions concerning sec. 196.37(2).

"The cardinal rule in all statutory interpretation, as this court has often said, is to discern the intent of the legislature." Scott v. First State Ins. Co., 155 Wis.2d 608, 612, 456 N.W.2d 152 (1990). This court ascertains that intent by examining the language of the statute and the scope, history, context, subject matter and purpose of the statute. Id. In addition, we must presume that the legislature intended an interpretation that advances the purposes of the statute. State v. Zielke, 137 Wis.2d 39, 46, 403 N.W.2d 427 (1987).

Until 1983, section 196.37(2), Stats., provided:

(2) Whenever the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, insufficient, preferential, unjustly discriminatory or otherwise unreasonable or unlawful, or shall find that any service is inadequate, or that any service which can be reasonably demanded cannot be obtained, the commission shall determine and by order fix reasonable measurements, regulations, acts, practices or service to be furnished, imposed, observed and followed in the future in lieu of those found to be unreasonable, inadequate or otherwise unlawful, and shall make such other order respecting such measurement, regulation, act, practice or service as shall be just and reasonable. See 1983 Wis.Laws, 1983 Wis. Act 53 p. 747-748 (Emphasis added).

The emphasized statutory language conferred upon the PSC the authority to make any just and reasonable order regarding a "measurement, regulation, act, practice or service, ..." in addition to its separate authority to make an order determining "reasonable measurements, regulations, acts, practices or service to be ... observed and followed in the future...." This separate authorizing clause, which is not modified by the phrase "in the future," was removed by 1983 Wis.Act 53. However, as the Act itself notes, it was not intended to make any substantive changes in the law: "The legislature does not intend to make any substantive change in the law treated by this act." 1983 Wis.Laws, Section 1, Wis.Act 53. Thus, according to the PSC, under the current sec. 196.37(2) the PSC's order requiring GTE to refund compensation collected by it for providing an untariffed service is authorized by the statute because the order is a just and reasonable order regarding a "measurement, regulation, act, practice or service." We find this reasoning persuasive.

The only possible interpretation of the former wording of sec. 196.37(2), Stats., which gives effect to the words "and shall make such other order respecting such measurement, regulation, act, practice or service as shall be just and reasonable," is that the power conferred by that language is in addition to the power to make an order to be followed in the future. Because the changes made in 1983 Wis.Act 53 were to be nonsubstantive, the term "in the future" in the current statute cannot be read as a limitation on the PSC's authority to order a refund in this case because no such limitation existed in the prior language of the statute. An interpretation establishing such a limitation would be contrary to the legislature's directive that the revision make no substantive changes. Thus, we conclude that sec. 196.37(2) confers upon the PSC the authority to order a refund in this case because such an order is a just and reasonable order regarding a "measurement, regulation, act, practice or service".

Having concluded that sec. 196.37(2), Stats., confers upon the PSC the authority to issue a refund in this case, we need not address the meaning of sec. 196.02.

In addition to the language and the history of the statute, the public policy behind chapter 196, Stats., further convinces us ...