Casey v. WV Public Service Commission
Annotate this Case
January 1995 Term
___________
No. 22483
___________
JAMES CASEY AND BRENDA HIGHTOWER,
Plaintiffs Below, Appellants
v.
PUBLIC SERVICE COMMISSION OF
WEST VIRGINIA; GTE SOUTH, INC.; AND
AT&T COMMUNICATIONS OF WEST VIRGINIA,
A CORPORATION,
Defendants Below, Appellees
___________________________________________________
Appeal from the Public Service Commission
of West Virginia
Action No. 93-0501-T-C
AFFIRMED
___________________________________________________
Submitted: January 18, 1995
Filed: April 14, 1995
Jeffrey W. Molenda
Appalachian Research and Defense Fund, Inc.
Fayetteville, West Virginia
Attorney for the Appellants
Steven Hamula
Charleston, West Virginia
Attorney for the Appellee, Public Service Commission
Mark A. Keffer
Oakton, Virginia
Attorney for the Appellee, AT&T Communications of West Virginia
Kimberly Caswell
GTE Telephone Services
Tampa, Florida
Attorney for the Appellee, GTE South, Inc.
Terry D. Blackwood
Deputy Consumer Advocate
Charleston, West Virginia
Attorney for Consumer Advocate Division of the
Public Service Commission of West Virginia
Amicus Curiae
Joan Wise
Office of the General Counsel
American Association of Retired Persons
Washington, D.C.
Attorney for American Association of Retired Persons,
Community Action for Fair Utility Practice (Chicago, Illinois),
Appalachian Peoples' Action Coalition (Athens, Ohio),
Diane Asmus (Hillsboro, Oregon),
Community Education and Protection Association (Philadelphia, PA)
and Vermont Low-Income Advocacy Council (Montpelier, Vermont)
Amicus Curiae
JUSTICE McHUGH delivered the Opinion of the Court.
Justice Brotherton did not participate.
Judge Fox sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "'The public service commission has the statutory
power and authority to control the facilities, charges and services
of all public utilities and to hear and determine the complaints of
persons entitled to the services which such utilities afford; and
the only limitation upon such power and authority is that the
requirements shall not be contrary to law and that they shall be
just and fair, just and reasonable, and just and proper.' Syllabus
Point 6, State ex rel. City of Wheeling v. Renick, 145 W. Va. 640,
116 S.E.2d 763 (1960)." Syl. pt. 2, Broadmoor/Timberline Apartment
v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593
(1988).
2. "The Public Service Commission of West Virginia has
no jurisdiction and no power or authority except as conferred on it
by statute and necessary implications therefrom, and its power is
confined to the regulation of public utilities. It has no inherent
power or authority." Syl. pt. 2, Wilhite v. Public Service
Commission, 150 W. Va. 747, 149 S.E.2d 273 (1966).
3. Where a billing dispute arises between an interstate
telephone company and a customer concerning interstate telephone
calls, which interstate calls are regulated by the Federal
Communications Commission, and the Federal Communications
Commission has an on-going procedure for the resolution of such
disputes, the Communications Act of 1934, set forth in 47 U.S.C. §
151, et seq., preempts the jurisdiction of the Public Service Commission of West Virginia to resolve such interstate telephone
billing disputes, even though the Federal Communications Commission
deferred to the states the determination of whether and under what
circumstances local exchange carriers will be allowed to offer
disconnection for nonpayment services to the interstate telephone
company.
McHugh, Justice:
The appellants, James Casey and Brenda Hightower, appeal
the March 18, 1994 order of the Public Service Commission of West
Virginia (hereinafter "the PSC"), which held that the PSC did not
have jurisdiction to decide a billing dispute involving interstate
telephone calls. The appellees are the Public Service Commission
and AT&T Communications of West Virginia. For reasons set forth
below, we affirm the order of the PSC.
I
The dispute in the case before us arose after Ms.
Hightower's daughter, Shawntawny Hightower, moved in with Ms.
Hightower and Mr. Casey. Shawntawny placed third-party calls from
the Casey/Hightower residence using telephone numbers her boyfriend
had given her; however, the third parties to whom these calls were
billed refused to accept responsibility for the calls. Therefore,
the calls were rebilled to the Casey/Hightower residence. The
appellants contended that since Shawntawny's boyfriend gave her the
false telephone numbers, he should be responsible for the telephone
bill. Accordingly, on June 1, 1993, the appellants filed a
complaint with the PSC against the appellees and GTE South,
Incorporated (hereinafter "GTE"), a defendant below. GTE is a
local exchange carrier that bills interstate telephone calls for
AT&T and local and intrastate long-distance telephone calls. The
dispute involves approximately $1300 for over 150 telephone calls.
GTE removed one of the disputed calls from the bill.
Thereafter, GTE asserted that the remaining calls in dispute were AT&T calls and that GTE could not adjust the charges associated
with these calls. The Administrative Law Judge agreed with GTE
and, therefore, dismissed GTE from the action.
AT&T filed a letter with the PSC on October 18, 1993,
stating that it had removed all disputed intrastate calls from the
telephone bill. The only disputed calls remaining were interstate
calls. Thus, AT&T argued that the PSC lacked jurisdiction to
adjudicate the dispute pursuant to the Communications Act of 1934,
as amended, which gives the Federal Communications Commission
(hereinafter the "FCC") broad preemptive power over interstate wire
communications,See footnote 1 which includes telephone communication. See 47
U.S.C. § 151, et seq.
The PSC agreed with AT&T. Consequently, on February 2,
1994, the PSC dismissed the appellants' complaint without
prejudice.See footnote 2 On March 18, 1994, the PSC denied the appellants' petition for reconsideration. Thereafter, the appellants filed
this appeal.
II
The issue before us is whether the PSC has jurisdiction
over billing disputes involving interstate telephone calls when the
local exchange carrier bills and collects for the interstate calls.
The appellants maintain that although the FCC has jurisdiction over
the rates charged for interstate calls, the states, and therefore,
the PSC, have jurisdiction over interstate billing disputes which
serve as the basis for the disconnection of intrastate and
interstate telephone services, the imposition of late payment
charges, and the demand for deposits to continue or begin
intrastate telephone service. Conversely, the appellees contend
that the FCC has exclusive jurisdiction over interstate billing
disputes since the disputes involve the application and
interpretation of AT&T's interstate tariff.
The resolution of this issue involves the interpretation
of the Communications Act of 1934. See 47 U.S.C. § 151, et seq.
Specifically, the Communications Act of 1934 gives the FCC broad
authority to regulate "interstate and foreign commerce in
communication by wire and radio so as to make available . . . to
all the people of the United States a rapid, efficient, Nation-
wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges[.]" 47 U.S.C. § 151
(1988), in relevant part. Although Congress gave the FCC broad
preemptive authority, this authority was not given without
limitations: "nothing in this chapter shall be construed to apply
or to give the [FCC] jurisdiction with respect to (1) charges,
classifications, practices, services, facilities, or regulations
for or in connection with intrastate communication service by wire
or radio of any carrier[.]" 47 U.S.C. § 152(b) (1988),See footnote 3 in
pertinent part.
The Communications Act of 1934 attempts to establish a
system of dual state and federal regulation by
'divid[ing] the world of telephone regulation
neatly into two separate components:'
interstate communications, which can be
regulated by the FCC; and intrastate
communications, which cannot. . . . However,
'since most aspects of the communications
field have overlapping interstate and
intrastate components, th[is] . . . section[]
do[es] not create a simple division; rather,
[it] create[s] a persistent jurisdictional
tension.'
Pub. Serv. Comm'n of Maryland v. Fed. Communications Comm'n, 909 F.2d 1510, 1514 (D.C. Cir. 1990) (citing to Public Util. Comm'n of
Texas v. FCC, 886 F.2d 1325, 1329 (D.C. Cir. 1989)). This
jurisdictional tension has created an anomaly of decisions by the
FCC and the courts as they attempt to define when the FCC has
preemptive power over state regulation. See Richard McKenna,
Preemption Under the Communications Act, 37 Fed. Comm. L.J. 1, 6 (1985). Consequently, our analysis of the issue before us is
hindered by the confusion which persists in this area. Therefore,
a historical background is necessary in order to facilitate an
understanding of the FCC's preemptive power.
We are mindful that the Congress or a federal agency
acting within the scope of its congressionally delegated authority
has the power to preempt state regulation pursuant to the Supremacy
Clause of article VISee footnote 4 of the U. S. Const. See generally, Louisiana
Pub. Serv. Comm'n v. Fed. Communications Comm'n, 476 U.S. 355, 368-
69, 106 S. Ct. 1890, 1898-99, 90 L. Ed. 2d 369, 381-82 (1986)
(hereinafter "Louisiana PSC"). The Supreme Court of the United
States has provided a useful analysis of preemption pursuant to
the Supremacy Clause:
Pre-emption occurs when Congress, in enacting
a federal statute, expresses a clear intent to
pre-empt state law, . . . when there is
outright or actual conflict between federal
and state law, . . . where compliance with
both federal and state law is in effect
physically impossible, . . . where there is
implicit in federal law a barrier to state
regulation, . . . where Congress has
legislated comprehensively, thus occupying an
entire field of regulation and leaving no room for the States to supplement federal law,
. . . or where the state law stands as an
obstacle to the accomplishment and execution
of the full objectives of Congress.
Id. (citations omitted). The Supreme Court of the United States
further noted "[t]he critical question in any pre-emption analysis
is always whether Congress intended that federal regulation
supersede state law." Id. at 369, 106 S. Ct. at 1899, 90 L. Ed. 2d
at 382 (citation omitted). It is this question which has proved
most troublesome for courts due to the evolution of the telephone
industry. See generally Michael J. Zpevak, FCC Preemption After
Louisiana PSC, 45 Fed. Comm. L. J. 185, 187 (1993) (§§ 151 and
152(b) of the Communications Act of 1934 "have remained virtually
unchanged since their adoption in 1934, however there has been a
definite evolution in terms of the judicial translation of these
sections over the years.")
Since the 1960's the telephone industry has undergone a
major transformation. See McKenna, supra at 2. Preemption by the
FCC has played a significant role in bringing about the
extraordinary changes. Id. The FCC's jurisdiction over the
telephone industry was not seriously questioned in the courts until
the following two events occurred: (1) the FCC imposed regulation
on the cable television industry in order to "protect the public
interest in relation to broadcasting" and "in order to bring cable
television service itself in line with statutory objectives[]" and
(2) the FCC opened "the domestic telephone industry to competition
. . . [in order] to clear away obstacles at the state level." Id.
at 2-3.
The cases which followed the above two events created a
legal test for determining when the FCC may preempt a state's
authority pursuant to the Communications Act of 1934: "section
152(b) [the section prohibiting the FCC from preempting matters or
services used for or in connection with intrastate communication]
barred FCC preemption only when (1) the matter to be regulated was
purely intrastate in nature, and (2) federal objectives were not
affected adversely by the state regulation in question." Zpevak,
supra at 192 (emphasis provided). However, in 1986 the Supreme
Court of the United States changed the preemption analysis in a
landmark decision: Louisiana PSC, supra.
In Louisiana PSC the issue was whether the FCC had
authority to preempt state regulation regarding depreciation
practices and charges relating to the setting of rates for
intrastate telephone service. The respondents, twenty-six private
telephone companies, argued that the FCC should be able to preempt
state regulation regarding depreciation practices since the state
regulation would frustrate the federal policy of increasing
competition in the industry. On the other hand, the petitioners,
which were the public service commissions of twenty-three states,
maintained that 47 U.S.C. § 152(b) (1988), which denies the FCC
jurisdiction over "charges, classifications, practices, services,
facilities, or regulations for or in connection with intrastate
communication service," precluded the FCC from regulating
intrastate depreciation practices.
The Supreme Court of the United States recognized that
numerous court decisions had held that "§ 152(b) applies as a
jurisdictional bar to FCC pre-emptive action only when two factors
are present; first, when the matter to be regulated is purely local
and second, when interstate communication is not affected by the
state regulation which the FCC would seek to pre-empt." Id. at
374, 106 S. Ct. at 1901, 90 L. Ed. 2d at 385. However, the
Supreme Court of the United States concluded that the above
analysis "misrepresents the statutory scheme and the basis and test
for pre-emption." Id. After all, as the Court noted, 47 U.S.C. §
152(b) (1988) "[b]y its terms, . . . fences off from FCC reach or
regulation intrastate matters--indeed, including matters 'in
connection with' intrastate service." Id. at 370, 106 S. Ct. at
1899, 90 L. Ed. 2d at 382-83.
The Supreme Court of the United States went on to state
that it could not "accept respondents' argument that § 152(b) does
not control because the plant involved in this case is used
interchangeably to provide both interstate and intrastate service,"
nor could it accept the argument that the state commissions'
authority over intrastate communication "should be 'confined to
intrastate matters which are "separable from and do not
substantially affect" interstate communication.'" Id. at 373, 106 S. Ct. at 1901, 90 L. Ed. 2d at 384-85 (citation omitted).
The Court in Louisiana PSC went on to hold that since it
was possible to separate what portion of an asset was used to
deliver or produce interstate service as opposed to intrastate service in a plant which is used interchangeably to provide both
interstate and intrastate service, the FCC was barred from
preempting state regulation over the depreciation method to be used
on the portion of the asset used for intrastate service. Thus,
even if the subject matter is both interstate and intrastate, the
FCC is barred, pursuant to 47 U.S.C. § 152(b) (1988), from
preempting state regulation of the subject matter if there is a way
to separate the interstate component from the intrastate component.
As background, we note that billing and collection
services are generally performed by entities known as local
exchange carriers (hereinafter "LECs") which bill for both
intrastate and interstate calls simultaneously. In the case before
us, the PSC points out there clearly is a way to separate the
interstate and intrastate portions of a telephone bill, even though
the LEC bills customers for intrastate and interstate calls
simultaneously. Accordingly, the PSC argues pursuant to Louisiana
PSC, it is barred from regulating interstate billing disputes just
as the FCC is barred from regulating intrastate billing disputes.
The appellants, as we previously stated, argue that since
the resolution of the interstate billing dispute could result in
the disconnection of their local telephone service, the PSC should
retain jurisdiction of the interstate billing dispute since the use
of the disconnection service for nonpayment of an interstate
telephone bill is a matter which is "'in connection with'
intrastate service." Louisiana PSC, 476 U.S. at 370, 106 S. Ct. at 1899, 90 L. Ed. 2d at 382-83. We find the appellants' contention
to be misplaced, although we acknowledge that due to the evolving
nature of wire communication the preemptive power of the FCC is
less than clear.
The FCC has taken the following position regarding the
disconnection for nonpayment issue:
[I]t is our view that we have the authority to
preempt state regulation of the terms and
conditions under which [disconnection for
nonpayment] will be allowed to take place, as
distinguished from the charges applied to it,
on the ground that it is 'not possible to
separate the interstate and the intrastate
components of the asserted FCC regulation.'
Instead of exerting our preemptive power to
the fullest extent of our jurisdiction,
however, we have, in the Detariffing Order,
deferred to the states, allowing them to
decide whether and under what circumstance
LECs will be allowed to offer [disconnection
for nonpayment] service to interstate
carriers.
In re Public Service Comm'n of Maryland, 4 F.C.C. R. No. 10, 4000,
4006 (1989) (footnote omitted and emphasis added).
First, the FCC asserts that it has jurisdiction to
determine under what conditions the disconnection for nonpayment
service will be allowed to occur because it is "'not possible to
separate the interstate and the intrastate components of the
asserted FCC regulation.'" Id. The record in the case before us
fails to demonstrate that it is possible to separate the interstate
and intrastate components of the disconnection for nonpayment
service. Accordingly, we shall rely upon the technical knowledge
of the FCC and PSC in determining that it is not possible to
separate the interstate and intrastate components of disconnection for nonpayment. After all, as one court noted when discussing the
jurisdiction of the FCC, courts defer to the administrative agency
when "the disputed issue 'involves technical questions of fact
uniquely within the expertise and experience of an agency.'"
Barnstone v. University of Houston, KUHT-TV, 514 F. Supp. 670, 677
(S.D. Tex. 1980), judgment reversed on other grounds, 660 F.2d 137
(5th Cir. 1981), reh'g granted by Muir v. Alabama Educational
Television Comm'n, 662 F.2d 1110 (5th Cir. 1981), and on reh'g, 688 F.2d 1033 (5th Cir. 1982), cert. denied, Barnstone v. University of
Houston, KUHT-TV, 460 U.S. 1023 (1983) (quoting Nader v. Allegheny
Air Lines, Inc., 426 U.S. 290, 304, 96 S. Ct. 1978, 1987, 48 L. Ed. 2d 643, 655 (1976)). See also Black Citizens for a Fair Media v.
F.C.C., 719 F.2d 407, 418 (D.C. Cir. 1983), cert. denied, 467 U.S. 1255 (1984) ("[C]ourt[s] 'defer[] . . . to the expertise and
experience of the [FCC] within its field of specialty[.]'"
(citation omitted)); Metropolitan Cleaning Corp., Inc. v. Crawley,
416 S.E.2d 35, 38 (Va. Ct. App. 1992) (quoting Dunton v. Eastern
Fine Paper Co., 423 A.2d 512, 514 (Me. 1980) (An administrative
agency "'acquires an expertise and accumulates an experience in
[its] limited, specialized field often more extensive than that of
the judiciary.'"). Cf. syl. pt. 1, in part, Monongahela Power Co.
v. Public Service Commission, 166 W. Va. 423, 276 S.E.2d 179 (1981)
(In administrative appeals involving complex economic or scientific
data which require expert knowledge "beyond the peculiar competence
of courts" this Court will not determine whether an agency's
decision is contrary to the law and evidence unless the agency has presented an order making findings of fact and conclusions of law
which explains the complex economic or scientific data.)
Second, the FCC has deferred to the states the decision
of whether and under what conditions LECs will be allowed to offer
disconnection for nonpayment service to interstate carriers.See footnote 5
However, as no party disputes, the FCC currently has a procedure in
place by which it resolves disputed interstate telephone bills.
Whether the forum provided by the FCC for the resolution of a
disputed interstate telephone bill is convenient is not the issue
to be decided by this Court.
The United States Code authorizes the FCC to resolve
disputes involving interstate wire communication. 47 U.S.C. §
201(b) (1988) states, in relevant part, that "[a]ll charges,
practices, classifications, and regulations for and in connection
with . . . communication service, shall be just and reasonable, and
any such charge, practice, classification, or regulation that is
unjust or unreasonable is declared to be unlawful[.]" Furthermore,
47 U.S.C. § 208(a) (1988) states, in pertinent part, that
[a]ny person . . . complaining of anything
done or omitted to be done by any common
carrier subject to this chapter, in
contravention of the provisions thereof, may
apply to said [FCC] by petition . . . [.]
[I]t shall be the duty of the [FCC] to
investigate the matter complained of in such
manner and by such means as it shall deem
proper . . . .
Therefore, if a customer does not find a charge or practice of an
interstate telephone company to be proper as to an interstate
telephone call, he or she may file a petition with the FCC.See footnote 6
Accordingly, the record before us does not indicate that the FCC
intended to defer jurisdiction of an interstate billing dispute to
the states as a condition for disconnection for nonpayment, nor
does the record before us indicate that the FCC does not have
authority to resolve such disputes. Thus, based on the limited
record in the case before us, we conclude the Communications Act of
1934 preempts state jurisdiction over interstate telephone billing
disputes since preemption is not barred by 47 U.S.C. § 152(b)
(1988).
This Court held the following in syllabus point 2 of
Broadmoor\Timberline Apartment v. Public Service Commission, 180 W.
Va. 387, 376 S.E.2d 593 (1988) based on W. Va. Code, 24-1-1, et
seq., which sets forth the power and authority of the Commission:
'The public service commission has the
statutory power and authority to control the
facilities, charges and services of all public
utilities and to hear and determine the
complaints of persons entitled to the services
which such utilities afford; and the only
limitation upon such power and authority is
that the requirements shall not be contrary to
law and that they shall be just and fair, just
and reasonable, and just and proper.'
Syllabus Point 6, State ex rel. City of
Wheeling v. Renick, 145 W. Va. 640, 116 S.E.2d 763 (1960).
Additionally, this Court held: "The Public Service Commission of
West Virginia has no jurisdiction and no power or authority except
as conferred on it by statute and necessary implications therefrom,
and its power is confined to the regulation of public utilities.
It has no inherent power or authority." Syl. pt. 2, Wilhite v.
Public Service Commission, 150 W. Va. 747, 149 S.E.2d 273 (1966).
Because the Communications Act of 1934 gives the FCC
broad preemptive power to regulate interstate wire communication,
the PSC has no authority to retain jurisdiction over an interstate
billing dispute. We recognize that the issue before us is
difficult to resolve because the relationship between the FCC and
PSC is still evolving. However, this Court cannot predict this
evolution because of the rapidly changing technical aspects of wire
communication. Therefore, we must necessarily defer to the
agencies' determination of how best to resolve an interstate
telephone billing dispute. We are not unmindful that there is a
burden on the appellants to have the dispute resolved by the FCC;
however, the appellants are not without a remedy. Moreover, until
the intrastate telephone calls were deleted from the appellants'
telephone bill, the PSC was actively involved in resolving the
intrastate telephone billing dispute.
Accordingly, we hold that where a billing dispute arises
between an interstate telephone company and a customer concerning
interstate telephone calls, which interstate calls are regulated by
the Federal Communications Commission, and the Federal
Communications Commission has an on-going procedure for the resolution of such disputes, the Communications Act of 1934, set
forth in 47 U.S.C. § 151, et seq., preempts the jurisdiction of the
Public Service Commission of West Virginia to resolve such
interstate telephone billing disputes, even though the Federal
Communications Commission deferred to the states the determination
of whether and under what circumstances local exchange carriers
will be allowed to offer disconnection for nonpayment services to
the interstate telephone company. Therefore, we affirm the March
18, 1994 order of the PSC.
Affirmed.
Footnote: 1
47 U.S.C. § 153(a) (1988) defines wire communication:
(a) 'Wire communication' or
'communication by wire' means the
transmission of writing, signs, signals,
pictures, and sounds of all kinds by aid of
wire, cable, or other like connection between
the points of origin and reception of such
transmission, including all
instrumentalities, facilities, apparatus, and
services (among other things, the receipt,
forwarding, and delivery of communications)
incidental to such transmission.
Footnote: 2
The powers of the Public Service Commission are
outlined in W. Va. Code, 24-1-1, et seq. More specifically,
W. Va. Code, 24-2-1 [1991] outlines when the Public Service
Commission has jurisdiction: "The jurisdiction of the commission
shall extend to all public utilities in this state, and shall
include any utility engaged in any of the following public
services: . . . transmission of messages by telephone[.]"
(quoted in relevant part).Footnote: 3
47 U.S.C. § 152 was amended in 1989, 1990, 1991 and
1993; however, the amendments do not affect the case before us.Footnote: 4
U.S. Const. art. VI, cl. 2 provides, in relevant part:
This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of
the United States, shall be the supreme law
of the Land; and the Judges in every State
shall be bound thereby, any Thing in the
Constitution or Laws of any State to the
Contrary notwithstanding.
Footnote: 5 The West Virginia Public Service Commission entered an order in 1985 stating that the LEC could disconnect service for the nonpayment of interstate telephone calls. Lawrence v. Chesapeake and Potomac Telephone Co. of West Virginia, 69 P.U.R. 4th 665 (1985).Footnote: 6 A procedure by which the FCC resolves informal and formal complaints involving common carries is set forth in Practice and Procedure, 47 C.F.R. § 1.701, et seq.
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