South Central Bell Telephone Co. v. Public Service Commission

702 S.W.2d 447, 1985 Ky. App. LEXIS 717
CourtCourt of Appeals of Kentucky
DecidedAugust 16, 1985
StatusPublished
Cited by7 cases

This text of 702 S.W.2d 447 (South Central Bell Telephone Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Central Bell Telephone Co. v. Public Service Commission, 702 S.W.2d 447, 1985 Ky. App. LEXIS 717 (Ky. Ct. App. 1985).

Opinion

DUNN, Judge.

These consolidated utility rate case appeals are from an order of the Franklin Circuit Court entered August 1, 1983, which affirmed in part, and reversed and remanded in part, the order of the Kentucky Public Service Commission in the South Central Bell Telephone Company’s 1982 application for increased rates. The company directly appeals from those portions of the trial court’s order which affirmed the Commission’s rulings favorable to the appellee Public Service Commission. The appellees/cross-appellants, inter-venors, the Attorney General, Consumer Protection Division, and the Commonwealth of Kentucky, Finance and Administration Cabinet cross-appeal on those portions of the trial court’s order which reversed and remanded on parts of the Commission’s order. We affirm on direct appeal, and affirm in part and reverse in part on cross-appeal.

On April 23, 1982, Bell applied to the Kentucky Public Service Commission for a rate and charges adjustment for intrastate telephone service to produce $66 million in additional annual revenues. On Bell’s request the Commission conducted hearings in August, 1982. On October 13, 1982, it entered an order, the net effect of which was to increase Bell’s annual revenues by $14.47 million.

Bell appealed to the Franklin Circuit Court raising 10 issues: three revenue, five expense and two tax adjustment.

The trial court affirmed the Commission’s order on two of the three revenue issues, namely, “rate of return” and “end of year adjustment” and reversed and remanded on the third issue, “repression.” It reversed the Commission and remanded to it one of the five expense issues, “license contract,” and affirmed the other four, “employer concessions,” “advertising expenses,” “charitable contributions,” and “corporate and community affairs.” It affirmed the Commission’s order on the two tax issues, “investment tax credit” and “accelerated recovery of excess tax referrals.”

On direct appeal Bell complains about each issue the trial court affirmed. It argues that the two of three revenue issues affirmed inappropriately adjusted its revenues upward; that the four of five expense issues affirmed disallowed legitimate and lawful business expenditures; and, that the two tax issues affirmed had the effect of [451]*451artifically reducing its revenue requirements.

On cross-appeal the interveners, appel-lees/cross-appellants, argue that with respect to “repression,” the revenue issue which the trial court reversed and remanded to the Commission, the Commission’s action was supported by substantial evidence, and they argue that with respect to the “license contract” expense issue reversed and remanded, Bell failed to meet its burden of proving it.

Judicial review of the Commission’s order is limited to determining whether the Commission acted unreasonably or unlawfully and Bell has the burden of proof, by clear and convincing evidence, to show such unreasonableness or, unlawfulness. See KRS 278.430; Energy Regulatory Commission v. Kentucky Power Co., Ky.App., 605 S.W.2d 46, 49 (1980). The term unreasonable can be applied to an administrative agency’s decision only when it is determined that the evidence presented leaves no room for difference of opinion among reasonable minds. Thurman & Meridian Mutual Ins. Co., Ky., 345 S.W.2d 635 (1961); Energy Regulatory Commission, supra. Determining the weight of evidence presented and the credibility of witnesses is clearly within the exclusive province of the Commission as trier of fact. Energy Regulatory Commission, supra. The Commission’s decision must be upheld if the evidence introduced by the company was unpersuasive or if substantial evidence supports the Commission’s findings. Id.

Bell first argues that the Commission’s determination of Bell’s “rate of return” is not supported by substantial evidence and is lacking adequate findings of fact. We have reviewed the evidence concerning it and conclude that there is substantial evidence to support the Commission’s determination. Only a cursory glance at the Commission’s order is all that is required to conclude that the Commission adequately described the underlying factual conclusions upon which it based its decision. We find no error by the trial court in affirming the Commission on this issue.

It next argues that several actions taken by the Commission concerning the other revenue issue, “end of year adjustment,” about which it complains, were unlawful, but nonetheless were affirmed by the trial court. It complains that in contravention of past practices, the Commission unlawfully refused to adjust the company’s income to reflect the number of income-producing units in service at the end of the test year, thereby depriving the company of revenue it is lawfully authorized to earn. Its argument is bottomed on the assumption that the Commission had in previous ratemaking cases adjusted Bell’s income to reflect the number of income producing units in service at the end of the test year, and that the current “(r)adical departure from (past) administrative interpretation consistently followed cannot be made except for the most cogent reasons.” Utility Regulatory Commission v. Kentucky Water Service Company, Ky.App., 642 S.W.2d 591, 593 (1982). We have no argument with this principle but we cannot agree that it should be applied here. First, the Commission issued a specific data request to Bell concerning the company’s proposed method of adjusting income, thereby notifying Bell that its adjustment method was in question. Second, the Attorney General challenged this method at the hearings. Third, in its order, the Commission noted that the reason it was not adopting Bell’s proposed method was because even its own witness did not establish that there was a direct relationship between the end of test year ratio and revenues from basic telephone service. Therefore, we conclude that there was substantial evidence to support the Commission’s findings and that its refusal to adopt Bell’s method of adjustment was not unreasonable or unlawful. The trial court did not err in affirming the Commission’s determination on this issue.

Bell allows that the trial court also erred in affirming 4 of the 5 expense issues before the Commission, i.e. “charity” expense, “advertising” expense, “employee [452]*452concession” expense and “corporate and community affairs” expense. It agrees with the trial court’s reversal and remand of the “license contract” expense.

Bell insists that its charitable contributions are an operating expense and were unreasonably disallowed. While we concede that some jurisdictions have recognized that charitable contributions constitute legitimate operating expenses for which the utility is entitled to recover, the Commission has adopted the Uniform System of Accounts, pursuant to KRS 278.220, which treats charitable contributions as a non-operating expense for ratemaking purposes. In adopting this method of accounting, we believe that the Commission has made its policy on charitable contributions clear.

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702 S.W.2d 447, 1985 Ky. App. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-central-bell-telephone-co-v-public-service-commission-kyctapp-1985.