Summary 2007 WY 97

Summary of Decision issued June 19, 2007

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Case Name: Qwest Corp. v. The Public Service Commission of WY and Silver Star Comm., Inc.

Citation: 2007 WY 97

Docket Number: 06-102

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge

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

Representing Appellee Public Service Commission of WY (Respondent): Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Stephani Anesi, Assistant Attorney General. Argument by Ms. Anesi.

Representing Appellee Silver Star Comm., Inc. (Intervenor): 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.

Issue: Whether the PSC exceeded its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange.

Facts/Discussion: Qwest questions the authority pf the WY Public Service Commission (PSC) under the Wyoming Telecommunications Act of 1995. In an administrative proceeding, the PSC rejected Qwest’s 21004 Total Service Long-Run Incremental Cost Study (TSLRIC) and ordered Qwest to submit an exchange-specific study for the Afton, WY Exchange. Qwest contended that the PSC lacked statutory authority to order a TSLRIC for the Afton Exchange.
Standard of Review: The sole issue is the extent of 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 its authority. TSLRIC Studies help to promote competition because they set a floor price for telecommunications services. Telecommunications providers must submit TSLRIC Studies to the PSC for review and approval at least once every three years.
Jurisdiction: The W.R.A.P. provide that a timely petition for rehearing extends the deadline for seeking judicial review of an agency decision. Qwest’s petition for rehearing tolled the appeal deadline; the petition for review was timely and the Court had jurisdiction to consider the appeal.
Qwest’s Arguments: Qwest argued that Wyo. Stat. Ann. § 37-15-202(a) limited the PSC’s authority to regulate prices and to require TSLRIC studies; that the PSC exceeded its authority because the TSLRIC was not necessary and that PSC’s order requiring it to prepare the TSLRIC was discriminatory. Qwest and Silver Star differed in their method of averaging costs in the Afton are with costs in other parts of the state. The PSC found that Qwest had not met its burden of demonstrating significant differences in the cost of services but concluded that Qwest did not have to disaggregate TSLRIC costs separately for each of its Wyoming Exchanges. The PSC therefore ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange. Under the Act, the PSC may designate certain telecommunications services as competitive. The PSC designated services in the Afton Exchange as competitive and not subject to regulation. Qwest argued that the PSC lacked the authority to require the TSLRIC. The statute authorizes TSLRIC Studies to be used to regulate prices in addition to other uses. The Court interpreted Wyo. Stat. Ann. § 37-15-202(a) as prohibiting the PSC from regulating prices in competitive markets but not prohibiting the PSC from requiring TSLRIC Studies for competitive markets for purposes other than regulating prices. The Court concluded that the PSC had authority under Wyo. Stat. Ann. § 37-15-402(a) to require PSLRIC Studies for competitive and noncompetitive markets. The statute indicated the legislature deemed TSLRIC Studies necessary and relevant to the extent required under Wyo. Stat. Ann. § 37-15-401(a)(iv). Qwest complained of unreasonable discrimination noting that the PSC ruled that Silver Star did not have to file a TSLRIC Study for the Afton Exchange because it was a competitive market. And now, in the current case, the PSC has used contrary reasoning and reached the opposite ruling. The Court stated that if the PSC has not applied the statute as written to Silver Star, it has the authority to correct the oversight.

Holding: The plain language of the Act provided statutory authority for the PSC to require TSLRIC Studies for competitive markets. The PSC did not exceed its statutory authority when it ordered Qwest to prepare and submit an exchange-specific TSLRIC Study for the Afton Exchange.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/22nhdh .