Pub. Serv. Comm'n of Wyo. v. Qwest Corp.
| Decision Date | 25 April 2013 |
| Docket Number | S–12–0121,S–12–0122.,Nos. S–12–0119,S–12–0120,s. S–12–0119 |
| Citation | 299 P.3d 1176 |
| Parties | The PUBLIC SERVICE COMMISSION OF WYOMING, Appellant (Respondent), v. QWEST CORPORATION, Appellee (Petitioner). Range Telephone Cooperative, Inc., RT Communications, Inc., Dubois Telephone Exchange, Inc. and Advanced Communications Technology, Inc., Appellants (Intervenors–Petitioners), v. Qwest Corporation, Appellee (Petitioner). Tri County Telephone Association and TCT West, Inc., Appellants (Intervenors), v. Qwest Corporation, Appellee (Petitioner). The Office Of Consumer Advocate, Appellant (Petitioner), v. The Public Service Commission Of Wyoming, Appellee (Respondent). |
| Court | Wyoming Supreme Court |
OPINION TEXT STARTS HERE
Representing the Public Service Commission of Wyoming: Gregory A. Phillips, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; Michael M. Robinson, Senior Assistant Attorney General. Argument by Mr. Robinson.
Representing Qwest Corporation: Paul J. Hickey and O'Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Ms. Pearson.
Representing Range Telephone Cooperative, Inc., RT Communications, Inc., Dubois Telephone Exchange, Inc., and Advanced Communications Technology, Inc.: Elizabeth Zerga of Jubin & Zerga LLC, Cheyenne, Wyoming.
Representing Tri County Telephone Association and TCT West, Inc.: Michael B. Rosenthal and Marianne Kunz Shanor of Hathaway & Kunz, P.C., Cheyenne, Wyoming. Argument by Ms. Shanor.
Representing the Office of Consumer Advocate: Alexander K. Davison of Patton & Davison, Cheyenne, Wyoming. Argument by Mr. Davison.
Before KITE, C.J., HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.
[¶ 1] The manager of the Wyoming Universal Service Fund (WUSF) filed confidential reports with the Wyoming Public Service Commission (PSC) containing his recommendations for the WUSF assessment level for fiscal years 2009–2010 and 2010–2011. Upon notice from the PSC that public hearings would be held to consider the manager's reports, Qwest asked for contested case hearings. Qwest also asserted it did not have sufficient information to allow it to determinewhether the manager's reports were correct.
[¶ 2] The PSC denied Qwest's requests for contested case hearings, concluding WUSF proceedings are legislative in nature. It convened public hearings and subsequently issued orders establishing the WUSF assessment levels as recommended by the manager. The Office of Consumer Advocate (OCA) and Qwest filed petitions for review of the PSC order in the district court.
[¶ 3] Before the district court, Qwest reiterated its argument that it could not address whether the PSC's orders were in error without seeing all of the information the PSC relied upon. The PSC argued the telecommunications companies submitted the information necessary to make the WUSF determination under the promise of confidentiality. Range Telephone Cooperative, Inc. (Range), RT Communications, Inc. (RT), Dubois Telephone Exchange, Inc. (Dubois), and Advanced Communications Technology, Inc. (Advanced Communications) filed motions to intervene for the limited purpose of protecting their confidential data.
[¶ 4] After an initial hearing, the district court ordered portions of the 2009 data to be provided to Qwest but denied the request for 2010 data. Subsequently, the district court held that the PSC erred in denying Qwest's requests for contested case hearings, reversed the administrative orders and remanded the cases to the PSC for contested case hearings.
[¶ 5] Four notices of appeal from the district court's order were filed. In case No. S–12–0119, the PSC claims the district court erred in granting Qwest access to confidential information and in holding that Qwest had a property interest and was entitled to a contested case hearing. In case No. S–12–0120, Range, RT, Dubois and Advanced Communications assert the district court erred in granting Qwest access to confidential information. Tri County Telephone Association (Tri County) likewise challenges the district court's order releasing the information in case No. S–12–0121. In case No. S–12–0122, the OCA asserts the PSC erred in concluding it was not required to hold contested case hearings. We hold that the PSC was required to convene contested case hearings. We remand the cases to the district court with directions to remand to the PSC for contested case hearings.
[¶ 6] This Court granted motions to consolidate the four appeals. The determinative issue for our consideration is whether Qwest was entitled to contested case hearings before the PSC.
[¶ 7] The PSC is charged with administering the WUSF. Qwest is a Colorado corporation authorized by the PSC to provide competitive and non-competitive services to customers in Wyoming. Range, RT, Dubois, Advanced Communications, and Tri County also provide telecommunications services to customers in Wyoming. The OCA is a division of the PSC charged with representing the interests of Wyoming citizens and utility customers in matters involving public utilities. Wyo. Stat. Ann. § 37–2–401 (LexisNexis 2011).
[¶ 8] The WUSF was created pursuant to Wyo. Stat. Ann. § 37–15–501 (LexisNexis 2011) of the Wyoming Telecommunications Act. The objective of the fund is to assist telecommunications customers located in areas of Wyoming where rates for essential services are high by assuring that they pay no more than 130 percent of the statewide average price for basic local exchange service. Section 37–15–501(c) and (d). To achieve this result, telecommunications companies providing services in Wyoming are required to contribute to the WUSF in accordance with the method designated by the PSC after notice and an opportunity for hearing. Section 37–15–501(a) and (b). Once customers who receive services in high rate areas of the state have paid for services up to the 130 percent benchmark, the WUSF distributes funds to the companies to the extent that their essential local exchange services prices exceed the benchmark after taking into account any contributions from the federal universal service fund (FUSF).
[¶ 9] Each year, the WUSF manager, a PSC employee, requires companies providing local exchange services in Wyoming to submit confidential data from the previous year including rates, essential services, number of lines, FUSF receipts and other information required by PSC rule. The manager analyzes the data, formulates recommendations and submits his findings and recommendations to the PSC. The PSC sets a hearing and provides notice to the companies that they may appear and comment on the fund manager's findings and recommendations. The PSC then determines the amount the companies must contribute to the fund and the amount to be distributed to them from the fund.
[¶ 10] On April 1, 2009, the fund manager submitted his annual confidential report for the 2009–2010 fiscal year to the PSC. Each telecommunications company received the portions of the confidential report pertaining to them; they did not receive confidential information concerning other companies. The PSC then issued a notice of a public hearing to receive comment on the fund manager's report. Before the hearing, the OCA requested access to the confidential data underlying the manager's report. The PSC allowed the OCA to review the data after imposing restrictions on its dissemination and handling. The OCA also filed a motion to participate in the proceedings as a party.
[¶ 11] Also prior to the hearing, Qwest filed a motion to intervene and requested a contested case hearing to address its WUSF distribution. Qwest claimed that the fund manager had incorrectly calculated its distribution for the 2009–2010 fiscal year resulting in a lower distribution than it should have received. Qwest also contended it did not have sufficient information to determine whether the fund manager had correctly calculated the 130 percent benchmark and assessment level. After a hearing on Qwest's motion, the PSC ruled that a contested case hearing was not required because the only facts to be determined in a WUSF proceeding are legislative in nature.
[¶ 12] The matter proceeded to public hearing on the fund manager's report. Following the hearing, the PSC issued an order in which it adopted the report and determined the OCA was not a party to the proceeding. The PSC also issued an order denying Qwest's motion to intervene and for a contested case hearing. Qwest and the OCA filed petitions for rehearing which the PSC denied after another public hearing. The OCA filed a petition for review of the PSC's orders in the district court. Qwest and the other companies filed motions to intervene which the district court granted.
[¶ 13] In the meantime, the fund manager submitted his confidential report for the 2010–2011 fiscal year to the PSC. As it had done in 2009, the OCA moved to intervene and requested portions of the report. The PSC denied the motion to intervene but granted limited access to the confidential report. Qwest also asked to intervene and requested a contested case hearing. The PSC denied both requests and subsequently entered an order adopting the fund manager's report.
[¶ 14] Qwest and the OCA filed petitions for review in the district court and the other companies were allowed to intervene. Qwest sought access to the confidential information the fund manager relied on in making his recommendations, arguing that it could not address whether the PSC acted arbitrarily without seeing the information on which it relied. The PSC and the other companies argued that the information was submitted under the promise of confidentiality and disclosure might allow Qwest to obtain an unfair competitive advantage. The OCA aligned itself with Qwest and asserted much of the information could be acquired through the internet and was not particularly sensitive. The district court directed the OCA, which already had at least some of the...
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