Qwest Corp. v. Public Service Com'n

• Decision Date: 19 June 2007
• Docket Number: No. 06-102.,06-102.
• Citation: 161 P.3d 495,2007 WY 97
• Parties: QWEST CORPORATION, Appellant (Petitioner), v. The PUBLIC SERVICE COMMISSION OF WYOMING, Steve Furtney, Chairman, Kathleen Lewis, Deputy Chairman, and Mary Byrnes, Commissioner, Appellee (Respondent), and Silver Star Communications, Inc., Appellee (Intervenor).
• Court: Wyoming Supreme Court

161 P.3d 495

2007 WY 97

QWEST CORPORATION, Appellant (Petitioner), v. The PUBLIC SERVICE COMMISSION OF WYOMING, Steve Furtney, Chairman, Kathleen Lewis, Deputy Chairman, and Mary Byrnes, Commissioner, Appellee (Respondent), and Silver Star Communications, Inc., Appellee (Intervenor).

No. 06-102.

Supreme Court of Wyoming.

June 19, 2007.

Representing Appellant: Paul J. Hickey and Roger C. Fransen, Hickey & Evans, LLP, Cheyenne, Wyoming; Barbara J. Brohl, Qwest Corporation, Denver, Colorado. Argument by Mr. Hickey.

Representing Appellee Public Service Commission of Wyoming: Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General, Stephanie Anesi, Assistant Attorney General; Argument by Ms. Anesi.

Representing Appellee Silver Star Communications, Inc.: James K. Sanderson, Sanderson Law Office, Afton, Wyoming; Bruce Asay, Associated Legal Group, Cheyenne, Wyoming. Argument by Mr. Sanderson.

Counsel for Amicus Curiae: Christopher Petrie, Wyoming Office of Consumer Advocate.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] In this appeal, Qwest Corporation ("Qwest") questions the authority of the Wyoming Public Service Commission ("PSC") under the Wyoming Telecommunications Act of 1995, Wyo. Stat. Ann. §§ 37-15-101 through 37-15-502 (LexisNexis 2005) (the "Act"). In an administrative proceeding, the PSC rejected Qwest's 2004 Total Service Long-Run Incremental Cost Study ("TSLRIC Study") and ordered Qwest to submit an exchange-specific TSLRIC Study for the Afton, Wyoming, Exchange. Qwest contends that the PSC lacks statutory authority to order a TSLRIC Study for the Afton Exchange. We disagree, and affirm the PSC decision.

I. Issue

[¶ 2] All of the parties present the same issue in different language. We state the issue as follows:

Did the PSC exceed its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange?

II. Standard of Review

[¶ 3] The sole issue in this case is the extent of the PSC's statutory authority. As set forth in the Wyoming Administrative Procedure Act, the Court will interpret the statutory provisions, and set aside the agency's action if it exceeds the agency's statutory authority. Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2005). Statutory interpretation is a question of law, so our review is de novo. Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 43, ¶ 9, 154 P.3d 331, 334 (Wyo.2007).

III. Background and Facts

[¶ 4] The express intent of the Wyoming Telecommunications Act is to promote transition from a monopolistic, noncompetitive telecommunications industry to competitive markets. Wyo. Stat. Ann. § 37-15-102. One tool the PSC uses to promote competition is a Total Service Long-Run Incremental Cost Study, referred to in the industry by the awkward acronym "TSLRIC." In simplified terms, a TSLRIC Study estimates the theoretical cost of replacing an existing telecommunications network. Wyo. Stat. Ann. § 37-15-103(a)(xiii). In other words, it provides an estimate of what it would cost a potential competitor to establish a new, competing network.

[¶ 5] The Act requires companies to charge prices high enough to recover TSLRIC costs. Wyo. Stat. Ann. § 37-15-402(a). Thus, an established company may not set prices so low as to discourage a potential competitor from establishing a new, competing network. Because they set a floor price for telecommunications services, TSLRIC Studies help to promote competition. See US West Communications, Inc. v. Public Service Comm'n, 992 P.2d 1092 (Wyo. 1999).

[¶ 6] Telecommunications providers must submit TSLRIC Studies to the PSC for review and approval at least once every three years. Wyo. Stat. Ann. § 37-15-402(a). On November 1, 2004, Qwest submitted its 2004 TSLRIC Study to the PSC for review and approval. The Wyoming Office of Consumer Advocate¹ and Silver Star Communications, Inc.² ("Silver Star") intervened in the administrative proceeding.

[¶ 7] Following the hearing, the PSC rejected Qwest's 2004 TSLRIC Study, and ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange. After its request for rehearing was denied, Qwest filed a petition for judicial review with the district court. The district court certified the case to this Court pursuant to W.R.A.P. 12.09(b).

IV. Discussion

A. Jurisdiction

[¶ 8] As a threshold question, we must consider the issue of subject matter jurisdiction. The parties did not raise the issue, but subject matter jurisdiction may be considered on the Court's own motion. Thunder Basin Coal Co. v. Campbell County, 2006 WY 44, ¶ 36, 132 P.3d 801, 813 (Wyo. 2006). Indeed, we have a duty to satisfy ourselves that we have jurisdiction to entertain an appeal. Plymale v. Donnelly, 2006 WY 3, ¶ 4, 125 P.3d 1022, 1023 (Wyo.2006).

[¶ 9] In the administrative proceeding below, the PSC entered a "Final Order" on April 29, 2005. In general, petitions for judicial review must be filed within thirty days after the final agency decision. W.R.A.P. 12.04(a). Qwest did not file a petition for judicial review within that period, but instead filed a petition for rehearing on May 26, 2005. The PSC denied the petition on December 12, 2005, and Qwest filed its petition for judicial review on January 11, 2006.

[¶ 10] If Qwest's petition for rehearing tolled the thirty-day appeal deadline, then its appeal was timely, and the Court has jurisdiction. If Qwest's petition for rehearing did not toll the appeal deadline, its appeal was untimely, and the Court lacks jurisdiction. This issue has troubled the Court before. See Hupp v. Employment Security Comm'n, 715 P.2d 223 (Wyo.1986); Rosenberger v. City of Casper Bd. of Adj., 765 P.2d 367 (Wyo.1988).

[¶ 11] In Jackson Paint and Glass v. Jackson Bd. of Adjustment, 811 P.2d 293, 294 (Wyo.1991), the town's Zoning Board denied a variance on March 7, 1990. A request for rehearing was made on July 12, 1990. The Zoning Board denied the request for rehearing on July 18, 1990. A petition for judicial review was filed on August 2, 1990. The Court determined that the appeal was untimely, and warned that a request for rehearing must be made "in time to allow for a petition for review within 30 days after final action by the agency denying the variance. Failure to grant a rehearing does not toll the 30 day limit." Id. at 295.

[¶ 12] There are two plausible interpretations of the Jackson decision. The first interpretation focuses on the fact that the request for rehearing was untimely. The Zoning Board's decision to deny a variance became final before the request for rehearing was made. The deadline for appealing that final decision had passed. Under this first interpretation, an untimely request for rehearing did not toll the appeal deadline, but a timely request for rehearing would have done so. This first interpretation was urged in the concurring opinion in Jackson, 811 P.2d at 295, but was not embraced by the majority.

[¶ 13] The second interpretation focuses on the statement in Jackson that "[f]ailure to grant a rehearing does not toll the 30 day limit." This language suggests that even a timely and valid request for rehearing does not toll the appeal deadline. That deadline would expire thirty days after the Zoning Board denied the variance, even though a timely and valid request for rehearing remained pending before the Zoning Board.

[¶ 14] The first interpretation is correct. The Wyoming Rules of Appellate Procedure clearly provide that a timely petition for rehearing extends the deadline for seeking judicial review of an agency decision.

[T]he petition for review shall be filed within 30 days after service upon all parties of the final decision of the agency or denial of the petition for a rehearing, or, if a rehearing is held, within 30 days after service upon all parties of the decision.

W.R.A.P. 12.04(a) (emphasis added). The statute governing the PSC's consideration of petitions for rehearing also indicates that a petition for rehearing tolls the appeal deadline.

. . . Applications for rehearing shall stay the effect of any order or decision of the commission only as to the portion of the order addressed in the rehearing application until the commission denies the application or enters an order following rehearing, whichever last occurs. . . .

Wyo. Stat. Ann. § 37-2-214 (LexisNexis 2005).³ One "effect of any order or decision" is to trigger the appeal deadline. That effect is stayed by a petition for rehearing, and the appeal deadline is tolled while the PSC considers the petition for rehearing. Both the appellate rule and the PSC statute support the first interpretation of Jackson.

[¶ 15] Applying this first interpretation to the case at bar, Qwest's petition for rehearing did toll the appeal deadline, despite language in Jackson that could be read to the contrary. Qwest's petition for judicial review was timely, and we have jurisdiction to consider this appeal.

B. Qwest's arguments

[¶ 16] Qwest presents three arguments in support of its basic contention that the PSC exceeded its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange. First, it argues that Wyo. Stat. Ann. § 37-15-202(a), which limits the PSC's authority to regulate prices in competitive markets, also limits the PSC's authority to require TSLRIC studies for competitive markets. Second, it argues that the PSC exceeded its statutory authority because the TSLRIC Study for the Afton Exchange was not necessary or relevant, as required by Wyo. Stat. Ann. § 37-15-401(a)(iv). Third, Qwest argues that the PSC's order requiring Qwest to prepare and submit a TSLRIC Study for the Afton Exchange is unreasonably discriminatory, in violation of Wyo. Stat. Ann. § 37-15-404(b). To put the arguments in context, we review in more detail the PSC's decision in...