New York Tel. Co. v. Public Service Commission
| Decision Date | 04 August 1977 |
| Citation | 397 N.Y.S.2d 223,59 A.D.2d 17 |
| Parties | In the Matter of NEW YORK TELEPHONE COMPANY, Respondent, v. PUBLIC SERVICE COMMISSION of the State of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Peter H. Schiff, Albany, for appellant, Public Service commission.
DeGraff, Foy, Conway & Holt-Harris, Albany (Algird F. White and Michael T. Wallender, Albany, of counsel), for New York State Council of Retail Merchants, Inc., amicus curiae.
George E. Ashley, Raymond F. Burke and Gerald M. Oscar, New York City (Davis, Polk & Wardwell, Lawrence E. Walsh, New York City, of counsel), for respondent.
Before KOREMAN, P. J., and GREENBLOTT, SWEENEY, MAHONEY and MAIN, JJ.
Pursuant to section 92 of the Public Service Law, petitioner filed with respondent, on November 17, 1976, tariff revisions designed to increase its gross annual operating revenues by $392.9 million and scheduled to take effect on December 18, 1976. Thereafter, respondent considered the filing and concluded, without benefit of a hearing, that it was not reasonably complete, that it did not conform with respondent's findings in earlier proceedings and that it did not provide even a prima facie justification for the proposed rate changes. Accordingly, on December 14, 1976, it issued an "Order Directing Postponement or Cancellation of Tariff Filing" wherein it was provided that the filing would be dismissed on the merits, effective December 18, 1976, unless petitioner agreed to postpone the effective date thereof to 30 days after it supplemented the filing sufficiently to conform to the requirements of the order. Under protest and without any waiver of its rights, petitioner then elected to file tariff supplements on December 17, 1976 and December 30, 1976 and, contending that respondent lacked the authority to reject the original filing without a hearing or to direct the postponement of the proposed tariffs beyond the statutory 10-month maximum period from the originally proposed effective date, i. e., December 18, 1976, it likewise moved, on December 20, 1976, for a rehearing on respondent's December 14, 1976 order. By order dated December 30, 1976, respondent accepted the tariff supplements on the condition that petitioner remedy deficiencies in its filing by January 14, 1977, which it did, and further indicated that hearings on the filing would commence shortly after the beginning of the statutorily provided suspension period on January 29, 1977. Petitioner's motion for a rehearing was formally denied by respondent's order issued January 21, 1977.
On January 7, 1977, petitioner instituted the present proceeding to challenge respondent's order of December 14, 1976, and Special Term ultimately annulled the order and ruled that the 10-month suspension period specified in subdivision 2 of section 92 of the Public Service Law "shall be deemed * * * have taken effect on December 18, 1976", the date originally set by petitioner, rather than on January 29, 1977. In so ruling, it held (1) that the order in question was a final determination within the meaning of CPLR 7801 (subd. (1)); (2) that petitioner's motion for a rehearing had been effectively denied by respondent's order of December 30, 1976, and, therefore, the commencement of this proceeding was not premature; and (3) that the order of December 14, 1976 was contrary to the provisions of section 92 (subd. 2) of the Public Service Law and, consequently, respondent lacked the power to issue such an order. Respondent now appeals.
Considering initially the question of whether or not respondent had the statutory power to issue the challenged order, we agree with Special Term that it did not. It is well settled that respondent has only those powers conferred upon it by the Legislature and such other powers as are incidental thereto or necessarily implied therefrom (Matter of Niagara Mohawk Power Corp. v. Public Serv. Comm. of State of N.Y., 54 A.D.2d 255, 397 N.Y.S.2d 210). In this instance where a "major change" in utility rates has concededly...
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