The opinion
Sweeney, J. (concurring in part and dissenting in part).
We respectfully dissent from that part of the majority’s decision that holds that the Public Service Commission (PSC) is authorized to restrict political inserts in billing envelopes.
The PSC has only those powers conferred upon it by the Legislature and such additional powers as are incidental thereto or necessarily implied therefrom (Matter of New York Tel. Co. v Public Serv. Comm, of State of N. Y.,59 AD2d 17). Two provisions of the Public Service Law are proposed by the PSC as authority in support of the ban in question. Initially, it is urged that subdivision 3 of section 65 of the Public Service Law is violated by the use of bill inserts in that it gives the managements of the utilities a benefit or advantage unavailable to others. It is clear, however, that subdivision 3 of section *371 65 relates to the prohibition of discrimination in the provision of services and no such discrimination is present in the instant case.
It is also argued by the PSC that subdivision 2 of section 66 of the Public Service Law authorizes the ban on bill inserts as that section empowers the PSC to "order such reasonable improvements as will best promote the public interest”. In support of this argument, it is contended that the order in question is designed to protect utility subscribers generally from the conversion of the billing process into a subsidized forum for the dissemination of management’s political views. The majority adopts the position of the PSC that the bill inserts would be inevitably subsidized by the consumer and consequently finds authority in the PSC to prohibit the use of bill inserts. In our view, however, it would not be impossible for the PSC to perform its duty of allocating the cost of these management statements to accounts chargeable to shareholders. We find nothing to prohibit the PSC from proportioning the costs so that the cost attributable to the placing of the bill inserts in envelopes and the mailing of the bill inserts would be chargeable to shareholders rather than ratepayers. Such an apportionment would prevent the subsidizing of management’s views through the use of bill inserts. Consequently, we find no express or implied statutory power authorizing the PSC to ban the bill inserts prohibited by its order of February 25, 1977. We would, therefore, affirm both of the judgments here on appeal.
Mahoney, P. J., and Mikoll, J., concur with Greenblott, J.; Sweeney and Main, JJ., concur in part and dissent in part in a separate opinion by Sweeney, J.
Judgment entered March 6, 1978 reversed, on the law, without costs, and order declared constitutional.
Judgment entered March 14, 1978 modified, on the law, by deleting so much thereof as annulled the Public Service Commission’s directive; determination confirmed, and, as so modified, affirmed, without costs.