South Central Bell Tel. Co. v. Louisiana Public Service Commission, 81-CA-2997

CourtSupreme Court of Louisiana
Writing for the CourtCALOGERO; The power; DIXON; DIXON
Citation412 So.2d 1069
Docket NumberNo. 81-CA-2997,81-CA-2997
Decision Date05 April 1982

Page 1069

412 So.2d 1069
No. 81-CA-2997.
Supreme Court of Louisiana.
April 5, 1982.

Page 1070

M. Robert Sutherland, Herschel L. Abbott, Jr., of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for plaintiff-appellee.

Marshall B. Brinkley, Michael R. Fontham, of Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for defendant-appellant.

CALOGERO, Justice.

The Louisiana Public Service Commission appeals from a decision of the Nineteenth Judicial District Court which held that South Central Bell Telephone Company did not have to pay a fee of the Commission's special counsel. The slightly over twenty thousand dollar fee is for services performed by the Commission's special counsel in connection with the Commission's intervention in an appeal on the side of those challenging a decision of the Federal Communication Commission in Computer and Communications Industry Association v. Federal Communications Commission and the United States of America, No. 80-1471 (D.C.Cir.1980) (Known as "Computer II," or "Second Computer Inquiry). 1 Computer II had come to the attention of the Commission's special counsel in the course of the Commission's examining an application for a rate increase filed by South Central Bell. After the fee for intervening in the appeal of Computer II was certified to South Central Bell "in connection with (its) rate application," the telephone company filed a rule in the district court to test the right of the Commission to charge them that item. The Commission argued that Computer II was a "rate making" case under La.R.S. 45:1180. 2 There was no dispute as to the reasonableness of the fee itself; the dispute was over whether South Central Bell should be made to pay the expense incurred by the Commission in its intervention in the Computer II appeal.

After a hearing, the district court concluded that while the outgrowth of the Computer II decision might arguably at some later point affect rates of Louisiana telephone subscribers it was not a case for which the certification of the Commission's special counsel fees to the utility was authorized under La.R.S. 45:1180 et seq. The district court thus entered judgment for South Central Bell and against the Commission.

On appeal, the Commission argues that the certification of fees to South Central Bell is authorized under the Commission's plenary authority granted to it in the La.Const. of 1974 art. IV, § 21 as well as under R.S. 45:1180 et seq. We find neither constitutional nor statutory authority for the Commission's certification for payment to South Central Bell of the fee for special counsel to intervene in Computer II on behalf of Louisiana consumers. 3

The factual background of this case is as follows:

On May 19, 1980, South Central Bell filed with the Commission an application for an increase of its intrastate rates and charges for telephone service in the gross amount of

Page 1071

$183,062,000. The Commission hired special counsel to review and evaluate the application. 4 On January 21, 1981, the Commission issued its order on South Central Bell's application. 5 The minutes of its meeting of April 22, 1981 some three months after issuance of Order No. U-14673, reveal that the Commission "authorized the employment of (counsel) to intervene on behalf of the Commission in FCC proceedings involving the telephone industry, particularly in regard to deregulation of certain aspects of terminal equipment and the depreciation and separations manual ... with the fees of Special Counsel ... to be assessed to ... South Central Bell ...." The Commission moved to intervene in May of 1981 in Computer II, on appeal in the United States Court of Appeal, D.C. Circuit. On July 23, 1981, special counsel's bill for legal services was tendered to South Central Bell. A narrative was annexed detailing the activities of special counsel in connection with the Commission's intervention in the Computer II appeal.

In response to a rule protesting the charges which South Central Bell filed pursuant to La.R.S. 45:1181, the district court found the charges not proper since the court believed that the Computer II inquiry was not a rate making case or the judicial review thereof.

The Commission appeals that decision arguing that it "unduly circumscribes the constitutional power of the Commission, runs counter to the plain meaning of an applicable statute and unjustifiably substitutes the court's interpretation of the nature of the federal proceeding for that of the Commission."


The powers and duties of the Louisiana Public Service Commission first appeared in the 1921 Louisiana Constitution as Art. VI § 4. Amended in 1964, 6 the provision reads:

The Commission shall have and exercise all necessary power and authority to supervise, govern, regulate and control all common carrier railroads, street railroads, interurban railroads, steamboats and other water craft, sleeping car, express, telephone, telegraph, gas, electric, light, heat and power, water works, common carrier pipelines, canals (except irrigation canals) and other public utilities in the State of Louisiana, and to fix reasonable and just single and joint line rates, fares, tolls or

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charges for the commodities furnished, or services rendered by such common carriers or public utilities, except as herein otherwise provided; ...

The power, authority, and duties of the Commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by the common carriers and public utilities hereby, or which may hereafter be made subject to supervision, regulation and control by the Commission, ... The right of the Legislature to place other public utilities under the control of and confer other powers upon the Louisiana Public Service Commission respecting common carriers and public utilities is hereby declared to be unlimited by any provision of this Constitution.

The said Commission shall have power to adopt and enforce such reasonable rules, regulations, and modes of procedure as it may deem proper for the discharge of its duties, and it may summon and compel the attendance of...

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