Opinion

Tennessee Cable Television Ass'n v. Tennessee Public Service Commission

  • 844 S.W.2d 151
  • 1992 Tenn. App. LEXIS 623
Court
Court of Appeals of Tennessee
Filed
Jul 24, 1992
Status
Published
Author
Cantrell
On the bench
Koch, Todd, Cantrell
Cited by
29 cases

noting that the Tennessee Public Service Commission exercises “co-mingled legislative, executive, and judicial functions”

How later courts described this case

  • noting that the Tennessee Public Service Commission exercises “co-mingled legislative, executive, and judicial functions”
  • adopting the test first enumerated in Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313 , 478 A.2d 742, 751 (1984)
  • “[P]ersons seeking to disqualify an agency member from a rulemaking proceeding must support their motion by clear and convincing evidence.” (citing Ass’n of Nat. Advertisers, Inc. v. F.T.C., 627 F.2d 1151, 1170 (D.C. Cir. 1979))
  • the court applied the neutrality mandate in a general ratemaking case

Written by the judges who cited it.

The opinion

CANTRELL, Judge,

dissenting in part.

I respectfully dissent from Part III of the court’s opinion holding that the Commission acted arbitrarily in deciding how South Central Bell should spend its excess earnings. I concur in the other parts of the opinion.

First, it seems to me that the court’s discussion of the virtues of rulemaking versus adjudicatory proceedings dwells on a moot issue. The Commission has belatedly decided that a decision on whether to implement the technology master plan and the regulatory reform plan < should come through rulemaking proceedings. So, that question is not before us.

The heart of the matter, though, is the part of the Commission’s January 17, 1991 order allowing South Central Bell to spend a portion of its excess earnings on service improvements that happen to coincide with the first part of the master plan. The court’s opinion frowns on that result, calling it an attempt to implement the master plan and the regulatory reform plan through adjudication.

I do not agree with that characterization. The master plan is a separate issue. It is still under consideration by the Commission, it affects all telephone companies operating in the state, and it may or may not be adopted. But, parts of the master plan may still be good policy for South Central Bell regardless of whether the plan ultimately gets adopted. That is a question for the Commission to decide. Since we agree, as stated in Part II of the majority opinion, that the Commission has the authority to allow excess earnings to be spent in extending or improving the company’s service, I think the decision on the specific improvements to be funded is a matter *167 addressing itself to the Commission’s discretion and expertise.

Having arrived at this conclusion, I would go forward and hold that the Commission’s decision is supported by substantial and material evidence in the record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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