Opinion
Appeal No. 01A01-9601-CH-00016.
November 19, 1997
Appeal From The Tennessee Public Service Commission Nashville, Tennessee, Davidson Chancery No. 95-2965-II.
For BellSouth Telecommunications, Inc.:
Guy M. Hicks, III, Bennett L. Ross, James G. Harralson
For ATT Communications of the South Central States, Inc.:
Val Sanford, John Knox Walkup, Gullett, Sanford, Robinson Martin
For Tennessee Public Service Comm.:
Charles W. Burson, Attorney General Reporter, Michael E. Moore Solicitor General, Michael W. Catalano, Associate Solicitor General
For Tennessee Consumers:
Charles W. Burson, Attorney General Reporter, Michael E. Moore Solicitor General, L. Vincent Williams, Consumer Advocate
PETITION FOR REHEARING DENIED
OPINION ON PETITION FOR REHEARING
BellSouth Telecommunications, Inc. has filed a petition for rehearing that requests this court to modify its October 1, 1997 opinion to include a holding that BellSouth's price regulation plan became effective on March 1, 1996. At our invitation, the other parties to this appeal have now responded. ATT Communications of the South Central States, Inc. asserts that the issues raised by BellSouth are within the original, primary jurisdiction of the Tennessee Regulatory Authority. The Tennessee Regulatory Authority asserts that setting March 1, 1996 as the effective date of BellSouth's price regulation plan is improper because BellSouth has not been operating under a price regulation plan as a result of our April 3, 1996 stay order. The Consumer Advocate Division launches an unfocused fusillade of complaints that our October 1, 1997 opinion "overlooks" or "misapprehends" prior case law, material facts, and the arguments in the Consumer Advocate's earlier briefs.
The Consumer Advocate Division raises many new arguments in its petition for rehearing, including its assertion that Tenn. Code Ann. § 65-5-209 (Supp. 1997), as interpreted by this Court, amounts to a taking of private property without due process of law and that this Court has usurped the powers of the Tennessee Regulatory Authority in violation of Tenn. Const. art. II, §§ 1 2. We will not attempt to run down the threads of each of the Consumer Advocate Division's arguments because the Division has not itself filed a petition for rehearing. Instead, we interpret its response to be that we should deny BellSouth's petition for rehearing because our October 1, 1997 opinion is simply wrong.
Our October 1, 1997 opinion focused on the procedure employed by the Tennessee Public Service Commission to consider and act on BellSouth's application for a price regulation plan. Rather than focusing on the substance or merits of the Commission's decision, we held that the procedure the Commission followed did not comply with Tenn. Code Ann. § 65-5-209. Accordingly, we vacated the Commission's orders and remanded the case to its successor for further proceedings consistent with the requirements of Tenn. Code Ann. § 65-5-209.
We again decline the invitation to review the wisdom of the General Assembly's choice of the transition procedure in Tenn. Code Ann. § 65-5-209 over a "full-blown rate hearing." The General Assembly has the prerogative, within constitutional boundaries, to fashion this State's public policy. See Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996). Accordingly, the courts consistently decline to inquire into legislative motivations, see Memphis Publishing Co. v. City of Memphis, 871 S.W.2d 681, 688 (Tenn. 1994), or into the wisdom of the legislature's policy choices. See Neece v. City of Johnson City, 767 S.W.2d 638, 639 (Tenn. 1989); State v. Southern Fitness Health, Inc., 743 S.W.2d 160, 164 (Tenn. 1987); Soukup v. Sell, 171 Tenn. 437, 441, 104 S.W.2d 830, 831 (1937).
The doctrine of separation of powers counsels the courts to avoid requiring an administrative agency to take a particular action except in the most extraordinary circumstances. We should decline, for constitutional and practical reasons, to shoulder an agency's responsibilities. Thus, the goal of a remand in cases of this sort should generally be to require the agency to carry out its task in a manner consistent with its statutory authority. See Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, ___ S.W.2d ___, ___ (Tenn.Ct.App. 1997).
Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, App. No. 01A01-9609-CH-00442, 1997 WL 106978, at *3 (Tenn. Ct. App. Mar. 12, 1997), perm. app. denied (Tenn. Oct. 6, 1997).
Throughout these proceedings, BellSouth consistently asserted that the procedure followed by the Commission was not authorized by Tenn. Code Ann. § 65-5-209 and requested the courts to require the regulators to make their decisions in accordance with Tenn. Code Ann. § 65-5-209. Our October 1, 1997 opinion settles the dispute concerning what Tenn. Code Ann. § 65-5-209 requires. Now it falls upon the Tennessee Regulatory Authority to consider BellSouth's application for a price regulation plan in accordance with Tenn. Code Ann. § 65-5-209.
Ordering the Authority to grant BellSouth's application for a price regulation plan and to declare that this plan has been in effect since March 1, 1996 would invade the Authority's jurisdiction and would also be inconsistent with our April 3, 1996 stay order. As a result of our stay, BellSouth has continued to operate under the former regulatory statutes rather than the new statutes enacted in 1995. Accordingly, BellSouth has not, as a matter of fact and law, been operating under a price regulation plan since March 1, 1996. It would be error for us to hold at this juncture that it has.
BellSouth's petition for rehearing is respectfully denied and the case is remanded to the Tennessee Regulatory Authority. The costs incident to this petition are taxed against BellSouth Telecommunications, Inc. and its surety for which execution, if necessary, may issue.
__________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:
_________________________________ SAMUEL L. LEWIS, JUDGE
_________________________________ BEN H. CANTRELL, JUDGE