Northwest Climate Conditioning Ass'n v. Lobdell

720 P.2d 1281, 79 Or. App. 560
Court of Appeals of Oregon·Decided June 4, 1986·No. A8304-02546; CA A32010·Published·Cited by 2 cases

Opinion

JOSEPH, C. J.

The Public Utility Commissioner has moved for reconsideration and to supplement the record. We grant the motion to supplement the record, and we reconsider and withdraw our former opinion on an appeal from the circuit court’s review of an order of the Commissioner. Northwest Climate Conditioning v. Lobdell, 77 Or App 325, 713 P2d 672 (1986). After discovering that the 28 exhibits put in the record before the Commissioner had not been transmitted by the circuit court to the Court of Appeals, were not in the records office of the circuit court and, as we interpreted the trial court judge’s comments on the record, had not been seen by the judge at the time of argument before him, we concluded that the complete record of the Commissioner’s hearing had not been considered by the circuit court in its review, as required by ORS 756.598, and we reversed and remanded. Because the parties now stipulate that the court in fact had before it and in fact did consider the complete record of the Commissioner’s hearing, and because the record has now been supplemented, we are now able to review the Commissioner’s order. Therefore, we withdraw our former opinion.

In this proceeding under ORS 756.500 et seq plaintiffs appeal from a judgment which affirmed the Commissioner’s order that Northwest Natural Gas (Northwest) was not required to charge separately for inspection, adjustment and pilot light relighting services and that the charge for those services could be included in the general charge for gas utility service on its tariff schedule. Intervenor Northwest cross-appeals, seeking reversal of that portion of the court’s judgment which reversed the Commissioner and held that Northwest’s repair and replacement activities are subject to regulation. We affirm.

Although the appeal is from a judgment of the circuit court, we review the Commissioner’s order. ORS 756.598; Publishers Paper Co. v. Davis, 28 Or App 189, 559 P2d 891 (1977). We may not substitute our judgment for that of the Commissioner as to any finding supported by substantial evidence. ORS 756.598. We need not agree with the Commissioner’s inferences or reasoning to uphold the order, if it contains sufficient findings and conclusions to enable us to determine that the reasoning is rational and that the agency [563]*563has acted within its grant of power. American Can v. Lobdell, 55 Or App 451, 638 P2d 1152 (1982).

For as long as there has been public utility regulation in Oregon, Northwest and its predecessors have offered appliance adjustment, inspection and pilot light relighting services to all customers for gas furnaces, water heaters and appliances.1 The services are described in detail in Northwest’s “Policy and Procedure Manual” and can be done quickly with only a few hand tools and no replacement parts. The services include: observation of the customer’s gas-burning equipment to determine malfunctions and hazards; flue gas analysis to determine burner efficiency; tuning of equipment; disassembly and clearing of pilot lights; adjustment of temperatures from room to room; calibration of gauges and instruments; and adjustment of burners.

Although Northwest’s tariff schedule shows that those services are provided,2 customers are not charged separately for them. The cost to Northwest of providing the services is not separately reflected in its accounting records; instead, it is included in the general charge for gas service. In 1981, Northwest had a monthly average of 232,066 customers. During that year, it made 99,654 service calls that included inspection, adjustment or pilot light relighting.

Northwest also performs minor repairs and replaces small parts if it discovers defects while inspecting appliances. It does not offer the service as such to its customers. The part most frequently replaced is a thermocouple, a device which shuts off the gas feeding the pilot light if the pilot light goes out. Generally, after determining that repairs more involved than replacement of a thermocouple are required, a Northwest [564]*564employe advises the customer to seek service from an independent company. In 1981, Northwest replaced 1300 thermocouples and performed other repairs in 600 additional instances. Customers are charged directly for repairs and replacements, but no tariff has been filed by Northwest respecting those services.

Plaintiffs are private companies that provide and charge for maintenance and repair services to gas appliances. They commenced these proceedings, among other reasons, to compel Northwest to file tariff schedules separately setting forth charges for all services which it renders to the public. The parties agree on several initial points, including that Northwest is not prevented by law from offering the services. Northwest concedes that its inspection, adjustment and relighting activities are “services” under ORS 756.010(11)3 and are subject to rate regulation and the tariff requirements of ORS 757.205(1).4 It does not concede that repair and replacement activities are services, and that is the point of its cross-appeal, which we address first.

Northwest contends that, because it does not generally offer repair and replacement services and because those activities are infrequent and sporadic, it should not be required to show them on its tariff schedule. It claims that the listing of repair and replacement costs on the schedule would lead customers to believe that the services are offered generally. It contends further that the filing of a tariff is a matter within the Commissioner’s discretion and that the Commissioner did not abuse that discretion in determining that it would not further the public interest for Northwest to file a tariff for its repair and replacement activities. Plaintiffs contend that there is really no distinction between “inspection, adjustment and relighting services” and “repair and replacement services” and that both fall within the Commissioner’s regulatory responsibility.

[565]*565The Commissioner’s administrative responsibility extends to all services provided by public utilities that are subject to ORS chapter 756. ORS 756.010(11) provides that the term “service” “is used in its broadest and most inclusive sense.” That unequivocal definition leaves little room for agency discretion. “Service” in its “broadest and most inclusive sense” indubitably encompasses the repair and replacement activities performed by Northwest. We affirm the circuit court’s judgment reversing and remanding that portion of the Commissioner’s order which held that repair and replacement activities are not subject to regulation.

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Northwest Climate Conditioning Ass'n v. Lobdell, 720 P.2d 1281, 79 Or. App. 560 (Or. Ct. App. 1986).

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