64 Ohio St. 3d 145

Ohio Bell Telephone Company et al., Appellants, v. Public Utilities Commission of Ohio et al., Appellees.

[Cite as Ohio Bell Tel Co. v. Pub. Util. Comm. (1992), 64 Ohio St.3d 145.]

(No. 91-1761

Submitted April 14, 1992

Decided July 8, 1992.)

*146Michael J Karson, William H. Hunt and Charles S. Rawlings, for appellant Ohio Bell Telephone Company.

Frost & Jacobs and Mark H Longenecker, for appellant Cincinnati Bell Telephone Company.

Joseph R. Stewart, for appellant GTE North Incorporated.

*147Thomas L. Jacobs; Jones, Day, Reavis & Pogue and Helen L. Liebman, for appellant United Telephone Company of Ohio.

Schneider & Prohaska and J. Raymond Prohaska, for appellant Ohio Telephone Association.

Lee I. Fisher, Attorney General, James B. Gainer and Ann E. Henkener, for appellee Public Utilities Commission.

Hahn Loeser & Parks, Janine L. Migden and Randy J. Hart, for intervening appellee Ohio Public Communications Association.

Reece, J.

The scope of review applicable to these proceedings is set forth in R.C. 4903.13 which states, in part:

“A final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable.”

In contrast to determinations of fact which are accorded considerable deference, questions of law are examined by this court de novo. Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St.2d 108, 110, 12 O.O.3d 115, 116, 388 N.E.2d 1370, 1372-1373.

While appellants assert four propositions of law, this appeal may be resolved upon a single statutory requirement. The commission conceded at oral argument that the order of May 8, 1991 effected a utility rate change. As a prerequisite to such action, the commission was obliged to give notice and conduct a hearing in accordance with R.C. 4905.26.1 MCI Telecommuni*148cations Corp. v. Pub. Util. Comm. (1988), 38 Ohio St.3d 266, 269, 527 N.E.2d 777, 780; see Coalition for Safe Electric Power v. Pub. Util. Comm. (1977), 49 Ohio St.2d 207, 210, 3 O.O.3d 326, 327, 361 N.E.2d 425, 427.

There is no indication in the record, and the commission does not argue, that a formal evidentiary hearing was held on the issue of directory assistance reimbursement. The notice and comment format, which was employed instead, has been approved by this court in the generic rate-making process only as an expedient means of following up an actual public hearing. MCI Telecommunications, supra, 38 Ohio St.3d at 269-270, 527 N.E.2d at 780-781. This casual approach does not, by itself, satisfy the detailed requirements of R.C. 4905.26.

The commission contends that it is immune from this statute since the order of May 8, 1991 is a “quasi-legislative” declaration adopted pursuant to the “rule-making” authority granted by R.C. 4905.04 and 4905.06. Regardless of how the action is characterized by the commission, it is still a rate change subject to the procedural requirements of R.C. 4905.26. The plain language of this enactment does not suggest that it is somehow optional. The commission cannot defeat the General Assembly’s demand for quasi-judicial proceedings merely by supplying a different label to the attempted modification.

Citing R.C. 4909.18, the commission further argues that a hearing is necessary only for a rate increase. That statute concerns applications by public utilities to establish or modify rates charged to customers and has no bearing in these proceedings. More to the point, the unambiguous terms of the controlling legislation, R.C. 4905.26, fail to support this interpretation.

Accordingly, we hold that before the commission may order a change in utility rates on policy grounds, the procedural requirements of R.C. 4905.26 for notice and a public hearing must first be satisfied.

For the foregoing reasons, we determine that the commission’s order of May 8, 1991, is unlawful and is therefore reversed and vacated.

Order reversed and vacated.

Sweeney, Acting C.J., Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.

John W. Reece, J., of the Ninth Appellate District, sitting for Moyer, C.J.

Ohio Bell Telephone Co. v. Public Utilities Commission
64 Ohio St. 3d 145

Case Details

Name
Ohio Bell Telephone Co. v. Public Utilities Commission
Decision Date
Jul 8, 1992
Citations

64 Ohio St. 3d 145

Jurisdiction
Ohio

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