Mid-Plains v. Public Service Commission et al

• Decision Date: 27 May 1999
• Docket Number: 98-0833
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. Mid-Plains, Inc., Petitioner-Respondent, v. Public Service Commission of Wisconsin, Respondent-Appellant, KMC Telecom, Inc. and TDS Datacom, Inc., Interested Parties, TDS Metrocom, Inc., Intervenor
• Court: Wisconsin Court of Appeals

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.

Mid-Plains, Inc., Petitioner-Respondent v Public Service Commission of Wisconsin, Respondent-Appellant, KMC Telecom, Inc. and TDS Datacom, Inc., Interested Parties, TDS Metrocom, Inc., Intervenor

No. 98-0833

May 27, 1999

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

APPEAL from orders of the circuit court for Dane County: RICHARD J. CALLAWAY, Judge. Affirmed in part and reversed in part.

Before Dykman, P.J., Eich and Vergeront, JJ.

EICH, J.

The Public Service Commission has appealed various circuit court orders in this dispute over the 1997 applications of two telecommunications utilities, KMC Telecom and TDS Datacom, to provide telephone service in an area on the western fringe of Madison which was then being served by Mid-Plains, Inc., under a "certificate of authority" issued by the Commission.¹ The Commission ruled-after inviting and receiving written comments and arguments on the subject from Mid-Plains and others, but without holding a hearing-that Mid-Plains had consented to the competitors' entry into its service area. According to the Commission, that consent was found in a "Regulatory Plan" Mid-Plains prepared and filed in support of an earlier request to the Commission for relief from various regulatory requirements pursuant to statutes providing for the partial deregulation of telecommunications utilities.

Mid-Plains sought judicial review of the Commission's order. The circuit court reversed, concluding that the documents relied on by the Commission in support of its determination that Mid-Plains had consented to entry (and had also waived a federal-law "exemption" from various utility deregulation laws) were ambiguous, and remanded the case to the Commission to hear and re-determine those issues. Additionally-and apparently at Mid-Plains's request-the court ruled that Mid-Plains possessed a constitutionally-protected "property" interest in its certificate of authority (and in the federal exemption) which, under the due process clause, could not be taken away without a hearing. In a later order, issued in response to a "clarification" request from Mid-Plains, the court reiterated both rulings. The Commission appeals both orders, focusing its argument on the court's "property-right" conclusions. With the exception of a "mootness" argument, Mid-Plains's brief is also limited to that issue.

Arguing that the case is moot, Mid-Plains points out that the Commission held hearings and re-determined the consent/waiver issue pursuant to the circuit court remand-deciding all issues against Mid-Plains-and that, thereafter, "Mid-Plains subsequently reached a voluntary settlement with TDS ... and KMC" with respect to their applications to provide telecommunications service in Mid-Plains's territory. As a result, says Mid-Plains, any further determinations by this court-particularly a determination with respect to the circuit court's "property-right" ruling-can have no effect on an existing controversy between the parties. Responding, the Commission disputes the latter assertion. It points out that Mid-Plains has filed a lawsuit against individual members of the Commission, claiming that they violated the company's constitutional rights by proceeding to consider-initially at least-TDS's and KMC's applications without a hearing, and seeking money damages. And it says that an appellate determination as to whether such a constitutional right exists (e.g., whether Mid-Plains has a protected property right in its certificate and federal exemption) will have a substantial, if not controlling, effect on that litigation.

We agree that any appeal from that portion of the circuit court's order remanding the case to the commission for re-determination of the waiver and consent issues is moot. Not only have those hearings been held-with Mid-Plains's full participation-but a decision has been made, and an order issued, by the Commission determining that Mid-Plains had consented to TDS's and KMC's entry into its service territory.² And that determination is final in that it was never appealed to the circuit court.

We are also satisfied that, in light of the circuit court's remand, any consideration of whether...