Summary 2013 WY 48

Summary of Decision April 25, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed and remanded.

Case Names: THE PUBLIC SERVICE COMMISSION OF WYOMING v. QWEST CORPORATION.

RANGE TELEPHONE COOPERATIVE, INC., RT COMMUNICATIONS, INC., DUBOIS TELEPHONE EXCHANGE, INC. AND ADVANCED COMMUNICATIONS TECHNOLOGY, INC., v. QWEST CORPORATION.

TRI COUNTY TELEPHONE ASSOCIATION and TCT WEST, INC. v. QWEST CORPORATION.

THE OFFICE OF CONSUMER ADVOCATE v. THE PUBLIC SERVICES COMMISSION OF WYOMING.

Docket Number: S-12-0119; S-12-0120; S-12-0121; S-12-122

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge.

Representing the Public Service Commission of Wyoming: Gregory A. Phillips, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; Ryan T. Schelhaas, Senior Assistant Attorney General; Michael M. Robinson, Senior Assistant Attorney General. Argument by Mr. Robinson.

Representing Qwest Corporation: Paul J. Hickey and O’Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Mr. Pearson.

Representing Range Telephone Cooperative, Inc., RT Communications, Inc., Dubois Telephone Exchange, Inc., and Advanced Communications Technology, Inc.: Elizabeth Zerga of Jubin & Zerga of Jubin & Zerga LLC, Cheyenne, Wyoming.

Representing Tri County Telephone Association and TCT West, Inc.: Michael B. Rosenthal and Marianne Kunz Shanor of Hathaway& Kunz, P.C., Cheyenne, Wyoming. Argument by Ms. Shanor.

Representing the Office of Consumer Advocate: Alexander K. Davison of Patton & Davison, Cheyenne, Wyoming. Argument by Mr. Davison.

Date of Decision: April 25, 2013

Facts: The manager of the Wyoming Universal Service Fund (WUSF) filed confidential reports with the Wyoming Public Service Commission (PSC) containing his recommendations for the WUSF assessment level for fiscal years 2009-2010 and 2010-2011. Upon notice from the PSC that public hearings would be held to consider the manager’s reports, Qwest asked for contested case hearings. Qwest also asserted it did not have sufficient information to allow it to determine whether the manager’s reports were correct.

The PSC denied Qwest’s requests for contested case hearings, concluding WUSF proceedings are legislative in nature. It convened public hearings and subsequently issued orders establishing the WUSF assessment levels as recommended by the manager. The Office of Consumer Advocate (OCA) and Qwest filed petitions for review of the PSC order in the district court.

Before the district court, Qwest reiterated its argument that it could not address whether the PSC’s orders were in error without seeing all of the information the PSC relied upon. The PSC argued the telecommunications companies submitted the information necessary to make the WUSF determination under the promise of confidentiality. Range Telephone Cooperative, Inc. (Range), RT Communications, Inc. (RT), Dubois Telephone Exchange, Inc. (Dubois), and Advanced Communications Technology, Inc. (Advanced Communications) filed motions to intervene for the limited purpose of protecting their confidential data.

After an initial hearing, the district court ordered portions of the 2009 data to be provided to Qwest but denied the request for 2010 data. Subsequently, the district court held that the PSC erred in denying Qwest’s requests for contested case hearings, reversed the administrative orders and remanded the cases to the PSC for contested case hearings.

Four notices of appeal from the district court’s order were filed. In case No. S-12-0119, the PCS claimed the district court erred in granting Qwest access to confidential information and in holding that Qwest had a property interest and was entitled to a contested case hearing. In case No. S-12-0120, Range, RT, Dubois and Advanced Communications asserted the district court erred in granting Qwest access to confidential information. Tri County Telephone Association (Tri County) likewise challenged the district court’s order releasing the information in case No. S-12-0121. In case No. S-12-0122, the OCA asserted the PSC erred in concluding it was not required to hold contested case hearings.

Issues: This Court granted motions to consolidate the four appeals. The determinative issue for our consideration is whether Qwest was entitled to contested case hearings before the PSC.

Holdings: The Court affirmed on different grounds the district court’s holding that the PSC was required to convene contested case hearings and remanded these cases to the district court with directions to remand to the PSC for proceedings consistent with this opinion.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2007 WY 97

Summary of Decision issued June 19, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

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 .