Northwestern Bell Tel. Co., Application of, 13624

Citation326 N.W.2d 100
Decision Date10 November 1982
Docket NumberNo. 13624,13624
PartiesIn the Matter of the Application of NORTHWESTERN BELL TELEPHONE COMPANY For an Increase in Intrastate Rates.
CourtSupreme Court of South Dakota

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for appellant State; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Walter Washington, Asst. Atty. Gen., Pierre, for appellee South Dakota Public Utilities Com'n.

John L. Morgan of Morgan, Fuller, Theeler & Cogley, Mitchell, for appellee Northwestern Bell Tel. Co.; James S. Nelson of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, William K. Schaphorst and Melvin R. Quinlan, Omaha, Neb., on brief.

HURD, Circuit Judge.

This is an appeal by the State from an order of the circuit court affirming a decision of appellee South Dakota Public Utilities Commission (PUC) denying appellee Northwestern Bell Telephone Company's (Bell) motion for immediate rate relief. We dismiss the appeal as moot.

On January 30, 1981, Bell filed an application with the PUC for authority to increase its intrastate rates. Simultaneous with said general rate application, Bell filed a motion for immediate rate relief. On June 2, 1981, the PUC allowed the State to intervene. On July 7, 1981, the PUC held an interim hearing on Bell's motion for immediate rate relief. On July 28, 1981, the PUC entered its order denying the motion for the reason that Bell had failed to make a sufficient showing of financial emergency to justify granting its request for immediate rate relief. Both Bell and the State appealed to the circuit court. On November 2, 1981, the circuit court affirmed the action of the PUC. On February 2, 1982, the PUC entered its decision and order disposing of all issues in Bell's application.

The State argues, in opposition to both the PUC and Bell, that the PUC does not have authority to hold hearings for, or have any jurisdiction over, any person or corporation in the matter of interim rate increases. The State argues, in opposition to the PUC, that the PUC did not have authority to apply a "financial emergency" standard to Bell's request for interim rate relief because the PUC had not previously adopted a rule defining such a "financial emergency" standard.

Bell argues, in opposition to the PUC, that the PUC does not have authority to adopt a financial emergency standard for granting interim rate relief. The PUC has filed a motion to strike this contention because it is an affirmative argument seeking reversal of the circuit court's order, and, therefore, is properly arguable only by an appellant, not an appellee.

The PUC argues, in opposition to both the State and Bell, that the instant appeal has been rendered moot by the final action of the PUC on Bell's overall application for a rate increase.

We hold:

1) That while the instant appeal has become moot so far as the instant action is concerned, this court will retain the instant case in order to pass on a question of public interest;

2) That the PUC does have authority to hold hearings for the purpose of considering and acting upon applications for interim rate changes filed by a telephone company under its jurisdiction.

3) That Bell's failure to file a notice of review precludes it from contending that the PUC does not have authority to adopt a financial emergency standard for granting interim rate relief; and

4) That the PUC did not have authority to apply a financial emergency standard to Bell's request for interim rate relief, because the PUC had not previously adopted a rule defining such a "financial emergency" standard.

The decision and order of the PUC entered on February 2, 1982, disposed of all issues in Bell's application, including the issues raised in Bell's motion for immediate rate relief. Thus, the appeal has become moot so far as the instant action is concerned. However, as this Court stated in Stanley County School Dist. v. Stanley County Educ. Ass'n. 310 N.W.2d 162, 163 (S.D.1981), quoting from 5 Am.Jur.2d Appeal and Error Sec. 768 (1962):

[i]t is a well-established rule that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the particular action or the prties are concerned.... The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions....

In order for a case to meet this public interest exception three criteria must be met: (1) general public importance, (2) probable future recurrence, and (3) probable future mootness. Stanley County School Dist. v. Stanley County Educ. Ass'n., supra.

The PUC contends that it has the authority to hold hearings for the purpose of considering an interim rate change for a telephone company under its jurisdiction, to consider and act upon an application for such interim rate change, and to set the standards for such interim rate change. The extent of such authority is of general public importance.

While, since July 1, 1981, the PUC must take final action within six months on an application for a rate change or such change will go into effect, SDCL 49-31-14.1, it is probable that interim rate changes will be requested in the future.

Moreover, it is apparent that because of the six-month maximum duration of any interim rate increase, the issues raised by this appeal could never be fully litigated without becoming moot.

Accordingly, we retain the case in order to pass on the extent of the PUC's authority in regard to interim rate changes.

SDCL ch. 49-31 deals specifically with telephone and telegraph service. With respect to the PUC's rate-making powers, SDCL 49-31-4 provides:

The public utilities commission shall have power to fix individual rates as well as to make schedules of maximum rates, including joint rates to be charged by any telegraph or telephone company or companies for the rent of any line or instrument or for the transmission of any message and for any service in connection therewith, and to make such changes therein from time to time as it may deem reasonable or necessary, and it may exercise any other power necessary to a proper supervision and control of such companies (emphasis added).

SDCL 49-31-5 provides:

The public utilities commission shall have authority to regulate the method and manner of conducting the business of transmitting messages by telegraph or telephone and to make, fix, and determine all necessary rules and regulations for the conducting of such business, as well as to fix any and all rates and charges for the transmission of any message by telegraph or telephone or any service in connection therewith, including individual rates as well as schedules of rates, and to change such rates from time to time when in its judgment such change is necessary (emphasis added).

SDCL 49-31-2 declares telephone companies to be common carriers, and provides that all laws regulating common carriers shall apply with equal force and effect to telephone companies. With respect to the PUC's rate-making powers, SDCL 49-10-1 provides:

The public utilities commission is authorized and directed to make for each of the common carriers doing business in this state a schedule of reasonable maximum fares and rates of charges for the transportation or transmission of messages by telegraph or telephone, on or over each of such common carriers, and authority to make schedules shall include the power of classification of all such messages by telegraph or telephone, and it shall be the duty of such commission to make such classification. Such commission shall have authority to fix different rates or schedules of rates for different common carriers and for different lines and different parts of the same line of any common carrier.

Such commission shall from time to time and as often as circumstances may require, change and revise such schedules (emphasis added).

SDCL 49-31-4, 49-31-5 and 49-10-1 give the PUC the authority to make rate changes from time to time. Since these statutes do not restrict such authority to "general" rate changes, a common-sense interpretation of such language would lead to the conclusion that the PUC has authority to make interim rate changes, especially in light of SDCL 2-14-12, which provides that state statutes "are to be liberally construed with a view to effect [their] objects and to promote justice."

Moreover, a number of jurisdictions have recognized the implied power of a state regulatory agency vested with general rate-making jurisdiction to take interim action even when no express statutory authority exists. For example, in response to a similar issue on appeal in State ex rel. Laclede Gas Co. v. Pub. Serv. Comm'n., 535 S.W.2d 561, 566 (Mo.App.1976), the Missouri Court of Appeals, citing supporting cases from seven other jurisdictions, held:

The very real necessity of recognizing such a power in the regulatory agency has long been recognized by courts throughout this country. Not a single case has been cited by Jackson County nor found by independent research which has ever denied such a power to a regulatory agency such as the Missouri Public Service Commission. On the other hand, numerous cases from diverse jurisdictions have recognized and given effect to such an implied power even in the absence of specific statutory authority (citations omitted).

See also, Colorado Mun. League v. Pub. Util. Comm'n, 197 Colo. 106, 591 P.2d 577 (1979); Chesapeake and Potomac Tel. Co. v. Pub. Serv. Comm'n, 330 A.2d 236 (D.C.1974); Kansas-Nebraska Natural Gas Co., v. State Corp. Comm'n, 217 Kan. 604, 538 P.2d 702 (1975); Pub. Util. Comm'n v. City of Corpus Christi, 555 S.W.2d 509 (Tex.Civ.App.1977).

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