Bellsouth Telecommunications, Inc. v. Tennessee Regulatory Authority

98 S.W.3d 666, 2002 Tenn. App. LEXIS 505
CourtCourt of Appeals of Tennessee
DecidedJuly 16, 2002
StatusPublished
Cited by1 cases

This text of 98 S.W.3d 666 (Bellsouth Telecommunications, Inc. v. Tennessee Regulatory Authority) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bellsouth Telecommunications, Inc. v. Tennessee Regulatory Authority, 98 S.W.3d 666, 2002 Tenn. App. LEXIS 505 (Tenn. Ct. App. 2002).

Opinion

OPINION

BEN H. CANTRELL, P.J., M.S.,

delivered the opinion of the court,

in which WILLIAM B. CAIN, J. and VERNON NEAL, Sp. J., joined.

The only remaining question in this appeal concerns the authority of the Tennessee Regulatory Authority (TRA) to order the payment of interest on payphone rate refunds after the TRA found that the ratepayers had been overcharged. We find that Tenn.Code Ann. § 65-5-203(c) gives the TRA the requisite authority.

In response to a series of orders from the Federal Communications Commission (FCC) requiring the states to reclassify payphones and eliminate subsidies associated with payphone operations, the TRA initiated proceedings to determine tariff rates for payphone owners. BellSouth filed a tariff for payphone usage on February 29, 1997 to take effect on April 1,1997. The Tennessee Payphone Owners Association (TPOA) filed a petition to intervene, and the TRA granted the petition but approved the tariff pending a hearing.

On June 26, 1997, the TPOA filed a motion for a continuance so that it could consult with expert witnesses and prepare for the hearing. The pre-hearing officer granted the motion on July 8, 1997. On September 3, 1997, at a status conference, the Tennessee Attorney General Consumer Advocate and Protection Division (“Consumer Advocate Division”) requested a continuance until after the first of the year. BellSouth opposed the delay, but the pre-hearing officer granted the request and established a new procedural schedule.

The parties then filed an Agreed Motion for Continuance on March 4, 1998. The reason cited was to wait for the completion of other proceedings that dealt with the costs for various BellSouth services, including payphone services. The motion also stated that the final rates would be retroactive to April 15,1997 as required by the FCC in its Second Waiver Order, whereby local exchange companies could continue to charge their current tariffs so long as they agreed to reimburse the payphone owners for any overcharges when [668]*668new tariffs were finally set. The pre-hearing officer granted this motion on March 27,1998.

The BellSouth payphone tariff docket was inactive until the TPOA filed a request for proceedings to be reconvened on March 21, 2000. On June 22, 2000, the TPOA filed a Motion for Interim Relief due to the amount of tariff they were paying for payphone service. The pre-hearing officer filed an order reconvening the docket on July 21, 2000. This order also denied TPOA’s Motion for Interim Relief.

The TRA heard oral arguments on October 25, 2000. At the oral arguments, TPOA verbally moved for prejudgment interest. The Directors asked TPOA to file a written request, which it did on October 26, 2000. The TPOA relied upon Tenn. Code Ann. § 47-14-128, styled “Prejudgment Interest,” in support of its motion. BellSouth filed a response arguing that the TRA lacked authority to award prejudgment interest under Tenn.Code Ann. § 47-14r-123.

On February 1, 2001, the TRA entered an Interim Order in which it ordered Bell-South to reduce its payphone access line rates and to reimburse its customers for the amount they had been overcharged. The order required BellSouth “to pay as reimbursement any overpayment since April 15, 1997 adjusted to account for both inflation and the time value of money.” Specifically, the amount set by the order was six percent (6%) annual interest on all overpayments.

The courts have often pointed out that administrative agencies can only exercise those powers specifically granted to them by statute or arising by necessary implication therefrom. In BellSouth Telecomm. v. Greer, 972 S.W.2d 663, 680 (Tenn.Ct.App.1997) we said:

The Commission, like any other administrative agency, must conform its actions to its enabling legislation. Tennessee Publ. Serv. Comm’n v. Southern Ry., 554 S.W.2d 612, 613 (Tenn.1977); Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. 154, 161, 208 S.W.2d 1013, 1016 (1948). It has no authority ór power except that found in the statutes. Tennessee-Carolina Transp., Inc. v. Pentecost, 206 Tenn. 551, 556, 334 S.W.2d 950, 953 (1960). "While its statutes are remedial and should be interpreted liberally, see Tenn.Code Ann. § 65-4-106 (Supp. 1996), they should not be construed so broadly as to permit the Commission to exercise authority not specifically granted by law. Pharr v. Nashville, C. & St. L. Ry., 186 Tenn. At 161, 208 S.W.2d at 1016.

The Supreme Court of Tennessee has held:

Any authority exercised by the Public Service Commission must be as the result of an express grant of authority by statute or arise by necessary implication from the expressed statutory grant of power. Pharr v. Nashville, Chattanooga and St. Louis Railway, 186 Tenn. 154, 208 S.W.2d 1013 (1948); Nashville, Chattanooga and St. Louis Railway v. Railroad and Public Utilities Commission et al., 159 Tenn. 43, 15 S.W.2d 751 (1929). In either circumstance, the grant of power to the Commission is strictly construed.

Tennessee Publ. Serv. Comm’n v. Southern Ry. Co., 554 S.W.2d 612, 613 (Tenn.1977).

The TPOA initially requested pre-judgment interest pursuant to Tenn.Code Ann. § 47-14-123,1 but the TRA did not base its [669]*669decision on that statute. On appeal Bell-South devotes a considerable part of its initial brief to a discussion of why that statute does not apply, and neither the TPOA nor the TRA insist that it does. Therefore, we will pass on to the real issue.

Closer to the TRA’s home base, its governing acts contains Tenn.Code Ann. § 65-5-203 which applies to situations where a utility increases existing rates or changes or alters any existing classification. Subsection (a) of the act allows the TRA to suspend the rates for three months, and more if needed, while the TRA investigates to determine if the change or alteration is just and reasonable.

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