In re: Southwestern Bell Telephone Co.

• Decision Date: 30 May 2000
• Docket Number: MO-N
• Citation: 18 S.W.3d 575
• Parties: (Mo.App. W.D. 2000) In re: Southwestern Bell Telephone Company's Proposed Revision to General Exchange Tariff P.S.C.o. 35 WD57510 and WD57561 0
• Court: Missouri Court of Appeals

18 S.W.3d 575 (Mo.App. W.D. 2000)

In re: Southwestern Bell Telephone Company's Proposed Revision to General Exchange Tariff P.S.C. MO-No. 35

WD57510 and WD57561

Missouri Court of Appeals Western District

05/30/2000

Appeal From: Circuit Court of Cole County, Hon. Thomas J. Brown

Counsel for Appellant: Paul Lane, Leo Bub, Anthony Conroy, Katherine Swaller, Dana K. Joyce, Nathan Williams, William Haas and Michael Dandino

Counsel for Respondent: Craig Johnson and Wm. Ross England III

Opinion Summary: Southwestern Bell Telephone Company and the Public Service Commission appeal the circuit court's judgment to order the commission to conduct a hearing to consider whether a large number of telephone companies should be permitted to intervene in Southwestern Bell's request for a tariff change. The companies wanted to oppose the change, but the commission refused to permit them to intervene.

Division holds: The appeal is dismissed because the primary toll carrier plan which is at the center of this dispute ended in 1999, mooting the claim. Southwestern Bell has no obligation now to provide toll services in the respondents' exchanges. This effectively ends the dispute between the respondents and Southwestern Bell. Even if this court were to agree with the respondents' contentions, ordering the commission to allow them to intervene would provide nothing for their customers. The respondents are not claiming damages. They merely seek the right to intervene to convince the commission that Southwestern Bell was obligated to provide the additional services to their customers, too. Even if the commission now agreed with them, the customers would not obtain the service because the primary toll carrier plan on which the respondents based their claim has expired. This case is moot.

Paul M. Spinden, Judge

Southwestern Bell Telephone Company and the Public Service Commission appeal the circuit court's judgment to order the commission to conduct a hearing to consider whether a large number of telephone companies should be permitted to intervene in Southwestern Bell's request for a tariff change. The companies wanted to oppose the change, but the commission refused to permit them to intervene. We dismiss the appeal as moot.

After Southwestern Bell asked the commission, on December 22, 1997, to modify its tariff, a large number of telephone companies sought to intervene in the case to oppose Southwestern Bell's request to provide additional services at no charge to Southwestern Bell's customers subscribing to certain plans.¹ The would-be intervenors, which divided themselves into two groups--the small telephone company group² and the mid-Missouri group³--protested that Southwestern Bell did not plan to extend the offer to their customers although Southwestern Bell served as the companies' primary toll carrier. The groups averred that, under the commission's primary toll carrier plan, Southwestern Bell was obligated to make available to the groups' customers the same inter-exchange services and at the same rate as it made to Southwestern Bell's own customers. They contended that allowing Southwestern Bell to give the proposed discount to Southwestern Bell's customers exclusively would be discriminatory and violated section 392.200.5, RSMo Supp. 1997.⁴

Without a hearing, the commission denied the motions to intervene and, on February 4, 1998, approved Southwestern Bell's tariff to be effective two days later. The commission decided, contrary to the groups' contentions, that Southwestern Bell's proposed tariff change was not discriminatory and that the commission did not intend for the primary toll carrier plan to keep Southwestern Bell from creating new services exclusively for its customers. The two groups filed separate petitions for writ of review with the circuit court. The circuit court consolidated the cases.

The circuit court concluded that the commission had erred in not holding a hearing to consider the two groups' applications to intervene. It remanded the case to the commission with instructions that it reopen the case and consider the intervenors' contentions of discriminatory and otherwise unlawful treatment. The commission and Southwestern Bell appealed to this court.

We dismiss because the primary toll carrier plan which is at the center of this dispute ended on October 20, 1999, mooting the two groups' claim. Southwestern Bell has no obligation now to provide toll services in the two groups' exchanges. This effectively ends the dispute between the two groups and Southwestern Bell. Even if we were to agree with the smaller telephone company groups' contentions, our ordering the commission to allow them to...