ENMR Telephone Cooperative v. New Mexico State Corp. Commission

884 P.2d 810, 118 N.M. 654
CourtNew Mexico Supreme Court
DecidedNovember 7, 1994
DocketNo. 21272
StatusPublished
Cited by1 cases

This text of 884 P.2d 810 (ENMR Telephone Cooperative v. New Mexico State Corp. Commission) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ENMR Telephone Cooperative v. New Mexico State Corp. Commission, 884 P.2d 810, 118 N.M. 654 (N.M. 1994).

Opinion

OPINION

BACA, Chief Justice.

Removee-Appellee’s motion for rehearing is denied. The opinion filed September 6, 1994, is withdrawn and the following is substituted therefor.

Appellant-Removant, ENMR Telephone Cooperative (“ENMR”), challenges an order of the New Mexico State Corporation Commission (the “Commission”). The order required ENMR to' submit to a regulatory audit, to contract "with an auditor of the Commission’s choosing, and to pay for the audit. We address one issue on appeal: Whether the Commission had the authority to require that ENMR pay for the regulatory audit. We review this ease pursuant to SCRA 1986, 12-102(A)(4) (Repl.Pamp.1992), and vacate the Commission’s order.

I.

On November 9, 1992, RSA New Mexico 2 Cellular Partnership (the “Partnership”) filed a petition with the Commission seeking to transfer to ENMR a certificate of public convenience and necessity (the “Certificate”). The Certificate authorized the Partnership to serve the public within a designated area in New Mexico with mobile wireless cellular telecommunications. The Partnership sought to transfer the Certificate because ENMR, owner of fifty percent of the Partnership, was in the process of acquiring the other fifty percent partnership interest.

An amended petition was filed on December 29, 1992, and the Commission held a hearing on the matter on January 22, 1993. On March 1, 1993, the Commission filed its findings of fact, conclusions of law, and order, in which it approved the transfer of the Certificate. The Commission also ordered that a regulatory audit of ENMR be performed within sixty days by an independent accounting firm selected by the Commission. The issue of how the audit should be funded was taken under advisement and the Commission solicited briefs on the issue from the parties involved.

On April 21, 1993, the Commission filed its second set of findings of fact, conclusions of law, and order. The Commission found that no parties other than the Commission staff had filed briefs on the issue of whether ENMR should pay for the regulatory audit. The Commission decided that it had “ample constitutional authority to order ENMR to pay for the costs of [the] regulatory audit” and ordered that ENMR pay for the audit.

On May 5,1993, the Commission filed supplemental findings of fact, conclusions of law, and an order. The Commission noted, contrary to its previous findings, that ENMR had in fact filed a brief on whether the Commission could order it to pay for the regulatory audit. After discussing the arguments raised by ENMR’s brief, the Commission again concluded that it had the constitutional authority to require ENMR to pay for the audit.

The Commission staff filed a notice of compliance on May 13,1993. The Notice formally recommended that the independent accounting firm of A.J. Rowe and Associates (“Rowe”) be designated to perform the regulatory audit of ENMR. The Commission then filed an order requiring ENMR to contract with Rowe by June 4, 1993.

ENMR filed a petition to remove cause to the Supreme Court on June 4, 1993. The Commission entered an order of removal on June 11, 1993, ordering that the cause be “removed to the New Mexico Supreme Court for review and enforcement pursuant to Article XI, Section 7, of the New Mexico Constitution.”

II.

On appeal, we address whether the Commission had the authority to order ENMR to pay for the regulatory audit ordered by the Commission. The Commission first argues that it had the authority to order ENMR to pay for the audit under Article XI, Section 7, of the New Mexico Constitution. This constitutional provision states in relevant part that

[t]he commission shall have power and be charged with the duty of fixing, determining, supervising, regulating and controlling all charges and rates of railway, express, telegraph, telephone, sleeping car and other transportation and transmission companies and common carriers within the state and of determining any matters of public convenience and necessity relating to such facilities as expressed herein in the manner which has been or shall be provided by law[.]

N.M. Const. art. XI, § 7. The Commission contends that its powers under this Section are clear and all-inclusive, and so broad that little room is left for judicial construction. See Las Cruces TV Cable v. New Mexico State Corp. Comm’n (In re Generic Investigation Into Cable Television Servs.), 103 N.M. 345, 349, 707 P.2d 1155, 1159 (1985) (stating that the Section “gives the Commission broad powers and duties with respect to all charges and rates of ... telephone companies”); Mountain States Tel. & Tel. Co. v. New Mexico State Corp. Comm’n, 90 N.M. 325, 334, 563 P.2d 588, 597 (1977) (stating that the Commission’s power to fix rates is “so broad that little room is left for construction”). The Commission maintains that it had the authority to order payment for the regulatory audit under the broad, all-inclusive power granted by Article XI, Section 7.

We do not agree that Article XI, Section 7 grants the Commission the authority to require a regulated entity to pay for an audit. Although this Section grants the Commission broad authority to act in the public interest in matters of ratemaking and in matters of public convenience and necessity, the Commission’s authority is not without limit. See AA Oilfield Serv., Inc. v. New Mexico State Corp. Comm’n, 118 N.M. 273, 277, 881 P.2d 18, 22 (1994) (No. 20,771). Under Article XI, Section 7, the Commission is only permitted to exercise its authority as “provided by law.” N.M. Const. art. XI, § 7; AA Oilfield Serv., Inc., 118 N.M. at 276, 881 P.2d at 21. The Commission must comply with, and is limited by, applicable statutes, its constitutional mandate, and existing Commission rules and regulations. Id.

We note that the Commission has not directed this Court to any statute authorizing it to order regulated entities to fund Commission-ordered audits. Our research shows the existence of three legislative acts and one statute that could potentially grant the Commission the power to order payment of regulatory audit fees. The Telephone and Telegraph Company Certification Act, NMSA 1978, Sections 63-9-1 to -19 (Repl.Pamp.1989), the New Mexico Telecommunications Act, NMSA 1978, Sections 63-9A-1 to -20 (Repl.Pamp.1989), and the Cellular Telephone Services Act, NMSA 1978, Sections 63-9B-1 to -14 (Repl.Pamp.1989) all provide for extensive Commission regulation of telephone, telegraph, and cellular phone services in matters of ratemaking and public convenience and necessity. However, no provision in any of these acts grants the Commission the authority to require regulated entities to pay for regulatory audits. Furthermore, NMSA 1978, Section 53-2-1 (Cum.Supp.1993) (entitled “[f]ees of state corporation commission”) provides a comprehensive and extensive outline- of the fees the Commission shall charge and collect from regulated companies, but contains no provision requiring payment of a fee or charge for regulatory audits.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Qwest Corp. v. New Mexico Public Regulation Commission
2006 NMSC 042 (New Mexico Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
884 P.2d 810, 118 N.M. 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enmr-telephone-cooperative-v-new-mexico-state-corp-commission-nm-1994.