West Virginia-Citizen Action Group v. Public Service Com'n of West Virginia

• Decision Date: 30 May 1985
• Docket Number: No. 16512,VIRGINIA-CITIZEN,16512
• Citation: 175 W.Va. 39,330 S.E.2d 849
• Parties: , 23 ERC 1215, 53 USLW 2619, 68 P.U.R.4th 166 WESTACTION GROUP, National Wildlife Federation, West Virginia Wildlife Federation, and Coalition of American Electric Consumer v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Appalachian Power Company.
• Court: West Virginia Supreme Court

Page 849

330 S.E.2d 849

175 W.Va. 39, 23 ERC 1215, 53 USLW

2619, 68 P.U.R.4th 166

WEST VIRGINIA-CITIZEN ACTION GROUP, National Wildlife Federation, West Virginia Wildlife Federation, and Coalition of American Electric Consumer v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Appalachian Power Company.

No. 16512.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1985.

Decided May 30, 1985.

Syllabus by the Court

1. The Public Service Commission was created by the Legislature for the purpose of exercising regulatory authority over public utilities. Its function is to require such entities to perform in a manner designed to safeguard the interests of the public and the utilities. Its primary purpose is to serve the interests of the public. Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970).

2. Where a public utility communicates, through its billing process, with its customers upon matters concerning the costs customers must bear if certain legislation concerning utilities is enacted into law, the Public Service Commission of West Virginia has jurisdiction under its authority to (1) safeguard the interests of the public, and (2) regulate the "practices, services and rates of public utilities," to establish methods by which the utility's customers may receive contrasting or opposing viewpoints concerning such costs. W.Va.Code, 24-1-1 [1983].

3. Where a public utility placed in its monthly billing envelopes mailed to its customers an insert which stated that electric bills will "increase sharply" if certain legislation before the United States Congress, concerning utilities, is enacted into law, the Public Service Commission of West Virginia had jurisdiction to require that a subsequent mailing of the utility's billing envelopes contain the insert of an appropriate spokesman, setting forth contrasting or opposing viewpoints to the utility's insert.

4. "Although it is normally within a state agency's discretion to determine the appropriate spokesman for the presentation of opposing viewpoints, it must, under the standards of reasonableness and good faith, consider legitimate requests by those wishing to express opposing views." Syl. pt. 2, United Mine Workers of America International Union v. Parsons, --- W.Va. ----, 305 S.E.2d 343 (1983).

David Grubb, John C. Purbaugh, Charleston, for petitioners.

Charles R. McElwee and William C. Porth, Robinson & McElwee, Charleston, for APCO.

Marc E. Lewis, Legal Div., Charleston, for PSC.

McHUGH, Justice:

In this action, the appellants, the West Virginia-Citizen Action Group, et al., appeal from a final order of the Public Service Commission of West Virginia. Pursuant to that order, the Public Service Commission dismissed the appellants' complaint concerning the March, 1982 electric bills mailed by the appellee, Appalachian Power Company (hereinafter "APCO"), to APCO's West Virginia customers. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. A brief amici curiae has been filed by Monongahela Power Company, et al.

I

The appellants, West Virginia-Citizen Action Group, National Wildlife Federation, West Virginia Wildlife Federation and Coalition of American Electric Consumers, are non-profit corporations which, upon the record before this Court, have asserted an interest in the issue of "acid rain pollution."

The appellee, APCO, is a public utility which provides electric power service in this State. The rates and service operations of APCO are regulated by the Public Service Commission. The Public Service Commission is also an appellee in this action.

In the regular monthly billing envelopes for March, 1982 mailed to its customers, APCO inserted, along with the electric bill, a pamphlet concerning the issue of acid rain. Reflected in the pamphlet were the views of APCO in opposition to certain proposed legislation in the United States Congress regarding the control of acid rain pollution. Describing acid rain as a "perceived but unproven problem," the pamphlet stated:

This month we are using this space to ask you to write a letter, or make a telephone call, or send a wire to your elected Federal officials: President Reagan, your U.S. Senators or your Congressman.

....

Simply put, if the legislation embodied by the Mitchell or Moynihan bills becomes law, your electric bill will increase sharply, not to provide more electricity and not to ensure a reliable supply of electricity but to pay for a guessed at solution to an unproven problem. How much will this guesswork solution cost? It's difficult to say. It could amount to $1 billion a year for customers of the American Electric Power System of which Appalachian is a part. That's $1 billion a year every year for at least the rest of this century that you the customer, will have to pay.

The pamphlet concluded by stating: "Appalachian Power--March 1982 (Paid for by Shareowners of American Electric Power Company, Inc.)." ¹

In May, 1983, by letter to APCO, the appellants requested "an opportunity to enclose an insert in a future APCO billing. The insert would present the 'other side' of the acid rain controversy. Among other things, it would respond to APCO's contention that acid rain is 'a perceived but unproven problem' ...." APCO denied the appellants' request.

The appellants filed a complaint with the Public Service Commission in July, 1983. In the complaint the appellants requested that the Commission direct APCO to enclose in its billing envelopes an appropriate reply, "as determined by the Commission," to APCO's pamphlet concerning acid rain. The appellants requested, in the alternative, a hearing upon the matters raised in the complaint. In addition, the appellants requested that the Public Service Commission consider the promulgation of a rule "to govern instances in which the billing process is used for purposes of propogating one side of an issue of political controversy." APCO answered and moved to dismiss the complaint.

APCO's motion to dismiss was granted by the Public Service Commission by order dated June 19, 1984. ² The Commission determined that it had no jurisdiction to grant the relief sought by the appellants. That determination was based upon the Commission's conclusion, inter alia, that the appellants' assertions did not concern the "rates and services" of a public utility, over which rates and services the Commission may exercise authority. ³

In November, 1984, we granted the appeal from the Public Service Commission's order.

II

As indicated above, the appellants have asserted before the Public Service Commission and this Court that the APCO insert presented a "one-sided view of the acid rain issue" to APCO's customers. The appellants do not suggest that such use of the billing process by APCO be denied. However, the appellants contend that the Public Service Commission is authorized to subject APCO's billing process to a reply insert.

APCO, on the other hand, contends that the Public Service Commission was correct in determining that it had no jurisdiction to grant the relief sought by the appellants. ⁴ APCO asserts, in accord with the Commission's final order, that, inasmuch as the APCO insert and the appellants' complaint before the Public Service Commission did not involve the rates or services of APCO, the Commission had no authority to consider the billing insert question. ⁵

The issue before this Court thus concerns whether the Public Service Commission had jurisdiction to consider the appellants' complaint and allow, by way of the billing process, a reply to the APCO insert. ⁶ For the reasons stated below, we hold that the Commission had such jurisdiction.

III

This Court, in Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970), recognized that this State's Public Service Commission "was created by the Legislature for the purpose of exercising regulatory authority over public utilities. Its function is to require such entities to perform in a manner designed to safeguard the interests of the public and the utilities. Its primary purpose is to serve the interests of the public." 154 W.Va. at 154, 174 S.E.2d at 336.

The regulatory authority of the Public Service Commission over public utilities, however, is not unlimited. As this Court stated in Lumberport-Shinnston Gas Co. v. Public Service Commission of West Virginia, --- W.Va. ----, 271 S.E.2d 438 (1980): "[T]he PSC is not to be seen as a super board of directors for the public utility companies of the State...." 271 S.E.2d at 443. Syllabus point 1 of Eureka Pipe Line Company v. Public Service Commission of West Virginia, 148 W.Va. 674, 137 S.E.2d 200 (1964), states: "The Public Service Commission of West Virginia has no inherent jurisdiction, power or authority and can exercise only such jurisdiction, power and authority as is authorized by statute."

The principal statutes involved in this action are W.Va.Code, 24-1-1 [1983], and W.Va.Code, 24-2-7 [1979]. ⁷

Indicating that the Public Service Commission was created to "exercise the legislative powers delegated" to the Commission, W.Va.Code, 24-1-1 [1983], in subsection (a) provides:

It is the purpose and policy of the legislature in enacting this chapter to confer upon the public service commission of this State the authority and duty to enforce and regulate the practices, services and rates of public utilities in order to:

(1) Ensure fair and prompt regulation of public utilities in the interest of the using and consuming public;

(2) Provide the availability of adequate, economical and reliable utility service throughout the State;

(3) Encourage the well-planned development of utility resources in a manner consistent with state needs and in ways consistent with the productive use of the State's energy resources, such as coal;

(4) Ensure that rates and charges for utility services are just, reasonable, applied without unjust discrimination or...