U.S. West Communications, Inc. v. Wyoming Public Service Com'n, 95-7

• Decision Date: 16 November 1995
• Docket Number: No. 95-7,95-7
• Citation: 907 P.2d 343
• Parties: US WEST COMMUNICATIONS, INC., Appellant (Petitioner), v. The WYOMING PUBLIC SERVICE COMMISSION; Bil Tucker, John R. Smyth, and Stephen N. Ellenbecker, in their official capacities as Commissioners of the Wyoming Public Service Commission; and Union Telephone Company, Inc., Appellees (Respondents).
• Court: Wyoming Supreme Court

Page 343

907 P.2d 343

US WEST COMMUNICATIONS, INC., Appellant (Petitioner), v. The WYOMING PUBLIC SERVICE COMMISSION; Bil Tucker, John R. Smyth, and Stephen N. Ellenbecker, in their official capacities as Commissioners of the Wyoming Public Service Commission; and Union Telephone Company, Inc., Appellees (Respondents).

No. 95-7.

Supreme Court of Wyoming.

Nov. 16, 1995.

Paul J. Hickey and Richard D. Bush of Hickey, Mackay, Evans, Walker & Stewart, Cheyenne; and William P. Heaston (argued) of US West Communications, Inc., Denver, CO, for Appellant.

William U. Hill, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Kristin H. Lee, Assistant Attorney General, for Appellee Public Service Commission.

Bruce S. Asay (argued) of Murane & Bostwick, Cheyenne, WY, for Appellee Union Telephone Company, Inc.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

LEHMAN, Justice.

US West Communications, Inc. (US West) appeals from an order of the Public Service Commission (PSC) ordering it to pay for terminating access services provided by Union Telephone Company, Inc.'s (Union) cellular telecommunications service. US West claims Union has failed to file the appropriate tariffs and rates as required by law.

We reverse and remand.

US West presents a single issue for review:

Whether the Public Service Commission erred in ordering US West to pay terminating access for cellular calls terminating within Union Cellular's Rural Service Area in the absence of any cellular terminating access tariffs on file with the PSC?

The PSC responds with two issues:

I. Is appellant US West out of time to challenge the PSC's ruling that it must pay Union Cellular terminating access charges based on Union Telephone's terminating access charges?

II. Did the Wyoming Public Service Commission err when it ordered US West to pay terminating access charges to Union Cellular?

Union did not file a statement of the issues.

BACKGROUND AND FACTS

The background to this dispute can be found in this court's opinion in Union Tel. Co., Inc. v. Pub. Serv. Comm'n, 833 P.2d 473, 482 (Wyo.1992). In that decision, this court held that Union was entitled to mutual compensation for terminating cellular calls (terminating access payments) made within its Rural Service Area (RSA) ¹ by US West subscribers. We remanded the case to the PSC for further proceedings.

After the parties failed to reach an agreement on mutual compensation, the PSC held a hearing to determine the issue. On August 6, 1993, the PSC issued its Findings, Conclusions and Order on Remanded Issue. The PSC concluded that terminating access payments for cellular calls should be equal to that charged for terminating access in Union's landline service area:

There is no evidentiary basis of record to support setting a different charge for providing terminating access to Union Cellular customers within Union Telephone's landline service area and the remaining RSA.

On September 7, 1993, US West filed a Petition for Rehearing asserting, in part, that Union had not filed the appropriate cellular tariffs. The PSC, by Order dated December 9, 1993, denied the Petition for Rehearing on the basis that US West agreed, by stipulation US West sought judicial review of the August 6 and the December 9 orders, while also filing a Petition for Rehearing on the December 9 order with the PSC. The district court certified the case to this court on March 2, 1994. On June 14, 1994, this court granted the parties' request to voluntarily dismiss the court case in favor of further proceedings in front of the PSC.

to the terminating access charges for service provided within Union's landline area.

A hearing was held by the PSC on August 11, 1994, on US West's Petition for Rehearing on the December 9, 1993 order. Again, US West argued that Union did not have the proper tariffs filed for terminating access payments for cellular calls within the RSA. The PSC denied the Petition, concluding that Union was "duly authorized to charge its cellular service rates by the Commission's bench order of July 11, 1990." The PSC then ordered US West to "commence payment of Union's filed cellular tariff rates for cellular terminating access service throughout Union's certificated cellular service area." US West then filed a Petition for Review in the district court, which certified the case to this court.

STANDARD OF REVIEW

When a case is certified pursuant to W.R.A.P. 12.09(b), we apply the appellate standards applicable to the court of the first instance. Union Tel. Co., Inc. v. Pub. Serv. Comm'n, 907 P.2d 340, 341-42 (Wyo.1995) (citing Hepp v. State ex rel. Worker's Compensation Div., 881 P.2d 1076, 1077 (Wyo.1994)).

The scope of our review of agency decisions is set out by W.S. 16-3-114(c) (1990 Rpl.):

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

See Wyoming Consumer Group v. Pub. Serv. Comm'n, 882 P.2d 858, 860 (Wyo.1994) (citing Mountain Fuel Supply Co. v. Pub. Serv. Comm'n, 662 P.2d 878, 881-82 (Wyo.1983)).

This court cannot usurp the legislative function delegated to the PSC, Mountain Fuel, 662 P.2d at 883; however, during our review of the PSC's exercise of its statutory powers, we will keep in mind that, as a regulatory agency, the PSC

has no inherent or common-law powers. Stated in another manner, an administrative body has only the power and authority granted by the constitution or statutes creating the same. Such statutes must be strictly construed or "any reasonable doubt of existence of any power must be resolved against the exercise thereof. A doubtful power does not exist."

Montana Dakota Util. Co. v. Pub. Serv. Comm'n, 847 P.2d 978, 983 (Wyo.1993) (quoting Tri-County Elec. Ass'n v. City of Gillette, 525 P.2d 3, 8-9 (Wyo.1974)). The PSC, in the exercise of its regulatory powers over public utilities, is required to give paramount consideration to the public interest. Montana Dakota, at id.

DISCUSSION

Prior to discussing the issue raised by US West, we must first address several arguments raised by Union and the PSC relating to the propriety of this appeal. The PSC claims that US West never appealed the August 6, 1993 order in which the landline terminating access charges were adopted as the terminating access charges for the cellular operation. The PSC argues that US West's failure to do so prohibits raising the issue on appeal now, since it is the September 19, 1994 order from which appeal was taken. Similarly, Union asserts that US West never raised this issue before the PSC and cannot do so for the first time on appeal. Union also claims that US West is barred by res judicata ² from raising the issue because it was decided by the PSC and not appealed at that time. Additionally, Union argues that US West is barred by the doctrine of invited error.

First, the record clearly demonstrates that US West did, in fact, raise this issue before the PSC. In its September 19, 1994 Final Order on Oral Argument and Briefs and Denying Additional Rehearing Request, the PSC determined the following issues:

1. Whether the Commission has authorized Union's rates for terminating calls to cellular customers in Union Cellular's Rural Service Area insofar as it extends outside of Union's wireline service area;

* * * * * *

3. Whether (as US West asserts) Union must file and support, and the Commission approve, the specific rate for the cellular terminating service provided by it outside its certificated local exchange or "wireline service" area pursuant to Wyoming statutory and Commission rule requirements, prior to, and as the basis for, any such terminating access charges to be paid by U.S. West to Union.

Thus, whether Union must file tariffs for the terminating access charges for cellular calls was raised before the PSC and not for the first time in this court.

Secondly, the PSC is mistaken in its contention that US West had to appeal the...