# Opposition Brief — Northwestern Bell Telephone Co. v. Minnesota Public Utilities Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1995%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 849 ## Text Supreme Court of the Anited States OCTOBER TERM, 1988 NORTHWESTERN BELL TELEPHONE COMPANY, Petitioner, Vv, MINNESOTA PUBLIC UTILITIES COMMISSION, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE MINNESOTA COURT OF APPEALS APPENDIX FOR BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI HUBERT H. HUMPHREY, III Attorney General State of Minnesota MICHAEL J. BRADLEY Assistant Attorney General (Counsel of Record) 840 Bremer Tower Seventh Place & Minnesota St. Saint Paul, Minnesota 55101 Telephone: (612) 297-4609 GARY R. CUNNINGHAM Special Assistant Attorney General 340 Bremer Tower Seventh Place & Minnesota St. St. Paul, Minnesota 55101 Telephone: (612) 297-4611 (See inside front cover for balance of Attorneys.) 224-7651 — Review Publishing Co., 287 E. 6th St., St. Paul, Mim. 55101 — 224-7631 KARL W. SONNEMAN Special Assistant Attorney General 780 American Center Building 150 East Kellogg Boulevard Saint Paul, Minnesota 55101 Telephone: (612) 296-0410 Attorney for the Minnesota Public Utilities Commission 1100 Bremer Tower Seventh Place & Minnesota St. Saint Paul, Minnesota 55101 Telephone: (612) 296-3301 Attorney for the Minnesota Department of Public Service APPENDIX INDEX TABLE OF CONTENTS . Initial Northwestern Bell Court of Appeals ES a A-l . Initial Northwestern Bell Court of Appeals A . Petition for Supreme Court Review ere A-103 A-l APPENDIX 1 C7-87-1296 STATE OF MINNESOTA IN COURT OF APPEALS NORTHWESTERN BELL TELEPHONE COMPANY, Relator, v. MINNESOTA PUBLIC UTILITIES COMMISSION, Respondent. BRIEF AND STATUTORY APPENDIX OF NORTHWESTERN BELL TELEPHONE COMPANY TABLE OF CONTENTS Page ges a oa eh kn a os been iii ee Sree a ape iv I 255s bx din A'o Ship oe Od wees I 1 TEE OP ECE LE Oa Op ore Argument... 17 I. The Canteen Erred In . Finding That North- western Bell Engaged In Illegal Contacts Which Affected The Commission’s Rate Case Delibera- Cs EG. i oss Bac as eee 17 A. There Was No Illegal Cintas Roveiend in Any of NWB’s Contacts With The Commis- ok ee bee eee 17 B. The Contacts Were Not Prohibited Ex Parte Contacts joa alee ieee os heen yes 21 A-2 C. The Commission Made Several Other Findings Regarding NWB’s Conduct Not Supported by Evidence in the Record 23 D. The Contacts Did Not Affect the Rate Case Deliberations or Order 25 II. The Commission Has No Express, Implied Or In- herent Authority To Reopen And Vacate A Final Rate Case Order Which Is Over 2%, Years Old 27 A. There Is No Statutory Nor Inherent Author- ity 27 B. The Authority Relied Upon by the Commis- sion Is Not Controlling in this Case 30 III. The Minnesota Supreme Court’s Determination In Henry v. MPUC That Northwestern Bell’s Rates Are Just And Reasonable Bars The Commission’s Action Under The Doctrine Of Res Judicata 41 IV. The Commission’s Order To Vacate, Reopen And Redeliberate A 2% Year Old Final Rate Case Order Violates The 10 Month Rule Of Minn. Stat. § 237.075 44 V. The Procedures Used By The Commission Violated Bell’s Constitutional And Statutory Rights 46 VI. Conclusion 49 Statutory Appendix TABLE OF AUTHORITIES Page Statutes : Minn, Stat. Chapter 10A 18,19 \| § 10A.01 16 Minn. Stat. Chapter 14 48 § 14.01 ll A-3 § 14.63 we ve Eilatie « ¢hahdhiaeduky ee § 14.64 7 Piewiaiedicns ¥en Minn. Stat. Chapter 216A ; 8 § 216A.02 - ore | | 8 § 216A.035 ...-19,20 § 216A.037 anc 20, 21 Minn. Stat. Chapter 216B | | § 2163.04, Subd. 4 naa 29 § 216B.25 29, 30, 38 Minn. Stat. Chapter 237 1, 8, 28, 29, 42 § 237.01, Subd. 2 . 1,8 § 237.075 .. | 8, 11, 48 § 237.075, Subd. 2 ee 45 § 237.075, Subd. 5 os 28 § 237.081 ; - 48 § 237.25 31 § 237.26 verere 31 Administrative Procedure Act, 5 U.S.C. § 1037 36 Minn. Rules Parts 7830.7000-7830.8000 21 7845.0100, et seq. 8 Cases: Anchor Cas. Co. v. Bongard’s Coop. Creamery Ass’n., 253 Minn. 101, 91 N.W.2d 122 (1958) 30 Application of Northwestern Bell Tel. Co., 367 N.W.2d 655, 661 (Minn. App. 1985) 30 Backus-Brooks Co. v. N.P. Ry. Co., (8th Cir.) 21 F.2d 4, 19 28 Bluefield Waterworks & Improvement Co. v. P.S.C. of W. Vir., 262 U.S. 679, 43 S.Ct. 675 (1923) 49 Continental Tel. Co. of Minn., Inc., 389 N.W.2d 910 (Minn. 1986) 48 A-4 Great Northern Railway Co. v. Public Service Commission, 284 Minn. 217, 220, 169 N.W.2d 732, 735 (Minn. 1969) 28 H. J. Inc. v. Northwestern Bell Telephone Company, 648 F. Supp. 419 (D.C. Minn. 1986) 2 H. J. Inc. v. Northwestern Bell Telephone Company, Minnesota Dist. Ct. Fourth Judicial Dist., File No. 86-24166, Judgment Docket, June 22, 1987 2 Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 92 N.W.2d 794 (1958) 33 Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) 35 Henry v. Minnesota Public Utilities Commission, 392 N.W.2d 209 (Minn. 1986) 1, 2, 41, 43 Hough Transit Ltd. v. Harig, 373 N.W.2d 327, 332 (Minn. App. 1985) 32, 42 In Re: McDonough, 296 N.W.2d 648 (Minn. 1980) 43 NWB Tel. Co. v. MPUC, C9-87-1257 7 Nelson v. Dorr, 239 Minn. 423, 58 N.W.2d 876 (1953) 43 Peoples Natural Gas Co. v. Minnesota Public Utilities Commission, 369 N.W.2d 530, 534 (Minn. 1985) 29 Professional Air Traffic Controllers Organizations v. FRLA, 685 F.2d 547 (D. C. Cir. 1982) 37-40 Re WORZ, Inc., 48 PUR 3rd 56 (1963) 25 Root Refining Co. v. Universal Oil Products Co., 169 F.2d 514 (3rd Cir. 1948) 34 Standard Oil Co. v. California, 429 U.S. 17 (1976) 35 A-5 State ex rel. Corbin v. Arizona Corporation Commission, 143 Ariz. 219, 698 P.2d 363 (1984) 36 State ex rel. Halton v. Four Lakes Tel. Co., 141 Minn. 124, 169 N.W. 480 (1918) 34 State on State ex rel. Turnb'a y. District Court, 259 Minn. 228, 107 N.W'2a > * (1960) 30 State v. Tri-State Tel. & Te:. Uo., 204 Minn. 516, 284 N.W. 294, 300 (1939) 27, 48, 49 Senior Citizens Coalition of Northern Minnesota v. Minnesota Public Utilities Commission, 355 N.W.2d 295, 303-304 (Minn. 1985) 29 U.S. v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed. 2d 642 (1966) 42 Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946) 34,35 Youngstown Mines Corp. v. Prout, 266 Minn. 450, 124 N.W.2d 328 (1963) 43 WKAT, Inc. v. FCC, 296 F.2d 375 (1961) 35, 36 LEGAL ISSUES I. Did the Minnesota Public Utilities Commission Er ‘or in Finding that Northwestern Bell Engaged in Illegal Contacts Which Affected the Commission's 1984 Rate Case Deliberations in Final Rate Order? The Commission ruled in the negative. A. Was there any illegal conduct involved in any of Northwestern Bell's contacts with the Commission? The Commission ruled in the affirmative. B. Were the contacts “prohibited” ex parte contacts? The Commission ruled in the affirmative. C. Was the Commission's Finding as to the “public's perception” of the contacts supported by substan- tial evidence? II. III. IV. ¥. A-6 The Commission did not rule on this issue but based its finding on an assumption. D. Did the contacts illegally affect the 1984 Rate Case Deliberations and Order? The Commission ruled in the affirmative. Does the Commission Have Statutory or Inherent Au- thority to Reopen and Vacate a Final Rate Order Which is Over 23/4, Years Old? The Commission Ruled in the Affirmative with respect to inherent authority but did not discuss statutory authority. Does the Minnesota Supreme Court’s Decision in Henry v. MPUC That Northwestern Bell’s Docket 600 Rates are Just and Reasonable Bar the Commission’s Action in Docket 177 Under the Doctrine of Res Judicata? The Commission ruled in the negative. Is The Commission’s Order to Vacate, Reopen and Re- deliberate a 234 Year Old Final Rate Case Order a Violation of the 10 Month Rule of Minn. Stat. 237.075? The Commission ruled in the negative. Were the Procedures Used By the Commission in Docket 177 a Violation of Northwestern Bell’s Constitutional and Statutery Rights? The Commission ruled in the negative. STATEMENT OF THE CASE Northwestern Bell Telephone Company (“Northwestern Bell” or “the Company”) is a telephone company within the meaning of Minn. Stat. § 237.01, Subd. 2. The Minnesota Pub- lic Utilities Commission (“MPUC” or “the Commission”’) is an administrative agency which has authority pursuant to Minn. Stat. Chapter 237 to set Northwestern Bell’s rates for intrastate telephone services under certain circumstances and after following certain statutory procedures. A-7 This case (“MPUC Docket 177”) is an appeal from an order of the Commission which collaterally reopened and vacated a 23/4, year old final general rate case order. ' A. Northwestern Bell’s Last Rate Case—Docket 600 Northwestern Bell’s current general telephone rates were established in MPUC Docket No. P-421/GR-83-600 — “Docket 600” — pursuant to a petition filed by the Company nearly four years ago on September 29, 1983. The Commission ap- proved interim rates effective November 28, 1983 and after lengthy and complex rate proceeding the Commission issued a 100 page determination establishing rates on July 27, 1984 (“the 1984 Rate Order.”’) The Commission’s 1984 Rate Order was appealed, and in Henry v. Minnesota Public Utilities Commission, 392 N.W.2d 209 (Minn. 1986) the Minnesota Supreme Court held, among other things, that the rates established by the 1984 Rate Order were just and reasonable and supported by substantial evidence on the record. (Henry, supra, pp. 215-216). Thus, Northwestern Bell’s current general telephone rates were established by a final order of the Commission which, prior to the issuance of the orders here in question, have been in effect for over 234, years. B. The “Summary” Investigation — Docket 177. On April 9, 1986 the Commission, in a separate docket — MPUC Docket No. U-999/CI-86-177 (hereinafter ‘Docket 177’) — issued an order initiating a “summary” investiga- 11f the Commission’s action is not overturned, amounts up to or in excess of $40 million which have already been collected by the Company and expended on operational expenses, maintenance of service, capital improvements and dividends may be subject to unconstitutional confiscation. In addition, until corrected in future rate proceeding up to $11.9 million per year in future rates may be subject to unconstitutional confiscation. (MPUC Order, Apri! 3, 1987, Docket 600.) A-8 tion. (A - 1). The Commission’s Docket 177 order noted the existence of various newspaper reports and governmental investigations relating to contacts alleged to have occurred between former Commissioners and various utilities, and stated the Commission believed it necessary to investigate whether any prior Commission decisions may have been ad- versely affecved by improper contacts. The Commission, therefore, directed the Minnesota Depart- ment of Public Service (“DPS’’) to continue an investigation regarding these contacts which the DPS had begun two months earlier and also to conduct an investigation on behalf of the Commissions. (A - 2-3). On July 8, 1986 the DPS completed its investigation and issued a report summarizing the result of its summary investigation (“DPS Report’). (A - 4). Attached to the DPS Report were 7 depositions taken by the DPS during its investigation and 91 “exhibits” which were collected by or created by the DPS investigators. The DPS Report made a number of findings and recom- mendations related to other parties and other dockets in ad- dition to Docket 600 not relevant here. With respect to Docket 600, however, the DPS Report concluded that: —During the 14-months that Docket 600 was pending be- fore the Commission, a representative of the Company had 2NWB has voluntarily assisted all said governmental investiga- tions and has not been found to have violited any law by any of said governmental investigations, including the FBI and Ramsey County Attorney’s investigations, referred to in the order. (NWB Petition for Reconsideration and Vacation, April 15, 1987, p. 2). Furthermore, a Federal judge has granted NWB a complete dis- missal of a private federal civil suit brought in connection with some of the same allegations. H. J. Inc. v. Northwestern Bell Telephone Company, 648 F. Supp. 419 (D. C. Minn. 1986); and a state district judge has granted NWB a complete dismissal of a similar private state civil suit, H. J., Ine. v. Northwestern Bell Telephone Company, Minnesota Dist. Ct., Fourth Judicial Dist., File No. 86-24166, Judgment Docket, June 22, 1987. A-9 a number of meetings with Commissioners in restaurants involving meals paid by the Company. (DPS Report, pp. 59, 64-65, A - 66, 71-72). —The two Commissioners and the Company representative who participated in these meals all testified under oath that at no time did these meetings involve discussions of Docket 600 issues. (DPS Report, pp. 58-59, Depositions of Weir, Adams and Hanson, A - 65-66). —During the period Docket 600 was pending there was no statute or rule in effect in Minnesota which prohibited a regulated Company from paying for meals consumed at meet- ings attended by Commissioners. (DPS Report, pp. 59-63, A - 66-70). : —It is unlikely that Commissioners could be bribed with free lunches or dinners. (DPS Report, pp. 58, A - 65). —During the period Docket 600 was pending there was no statute or rule in effect which prohibited ex parte dis- cussions between representatives of regulated companies and Commissioners. (DPS Report, pp. 66, A - 73). The DPS Report contained no evidence or conclusion that any particular vote of the Commission in Docket 600 had been influenced either by the purchase of meals or by any discus- sions which occurred during the meals. The DPS Report did not recommend reopening or reconsideration of the 1984 Dock- et 600 Rate Order. Upon receipt of this report the MPUC solicited comments from Northwestern Bell and other interested parties. (A - 89). Northwestern Bell gave written notice to the Commission and all parties that Northwestern Bell would object to any action taken by the Commission, based on the so called “evi- dence” created by the DPS under the “summary” investiga- tive procedures utilized in Docket 177, to reopen or reconsider A-10 the 1984 Docket 600 Rate Order. (NWB’s Comments Regard- ing the MPUC’s October 3, 1986 Order, dated October 22, 1986, pp. 16-17; A - 98-99). C. The Petitions for Reconsideration or Dismissal of the Docket 600 Rate Order. In July 1986 the Residential Utilities Division of the Office of Attorney General for the State of Minnesota (“AG-RUD” or “the Attorney General’) filed a petition with the Commis- sion requesting the Commission to reopen and reconsider the 1984 Rate Order in Docket 600 alleging that the Company had engaged in improper ex parte contacts regarding the Com- mission’s rate case deliberations. (A - 100). The AG-RUD’s petition was entirely based upon the DPS Report and the AG-RUD filed no evidence itself in support of its petition. The AG-RUD admitted in its petition that it had no knowledge of the specific content of any of the discussions which oc- curred between the Company representative and the Commis- sioners which were alleged to be improper. (AG-RUD Peti- tion, July 9, 1986, p. 5, A - 105). On August 14, 1986, the Minnesota Public Interest Re- search Group (“MPIRG”) filed a petition with the Commis- sion also based upon the DPS Report requesting the Com- mission to vacate and dismiss the 1984 Rate Order as well as the Commission’s November 13, 1984 Order in Docket 600 relating to intervenor compensation. MPIRG filed no evidence in support of its petition. MPIRG also admitted in its petition that it had no knowledge of the contents of any alleged ex parte discussions. (MPIRG Petition, August 14, 1986, p. 9). On October 22, 1986 the DPS filed comments with the Com- mission altering the DPS’s earlier position and recommend- ing that the Commission redeliberate the 1984 Rate Order in Docket 600. (Comments of DPS, October 22, 1986, p. 2). A-11 Northwestern Bell filed responses to the Petitions of the AG-RUD and MPIRG and the DPS Comments which, in sum- marized form, asserted: D. —The contacts about which the DPS, AG-RUD and MPIRG complain were not illegal. —The contacts about which the DPS, AG-RUD and MPIRG complain were not prohibited “ex parte” contacts. —The contacts about which the DPS, AG-RUD and MPIRG complain did not affect Docket 600. —Under the circumstances of the “summary nature” of the proceedings in Docket 177, the MPUC has no legal author- ity to reopen, reconsider or dismiss the 1984 Rate Order in Docket 600. —There are other substantial reasons for not reopening Docket 600. (NWB’s Reply to Comments of the Other Parties, November 3, 1986; Response of NWB to Petition to Reopen and Reconsider filed by the AG-RUD, July 18, 1986; Response of NWB to Petition of MPIRG; NWB’s Response to the AG’s Reply Brief, September 15, 1986; Response of NWB to July 8, 1986 Report of the DPS to the MPUC, August 13, 1986). The Commission’s Deliberation and Order to Vacate and Reopen the 1984 Rate Order. On November 7, 1986 the Commission met in Docket 177 and deliberated the AG-RUD and MPIRG petitions regarding the 1984 Rate Order in Docket 600. The Commission had not referred the matter to a contested case hearing and had no evidence before it except the disputed “evidence” created over Northwestern Bell’s objection in the DPS summary investi- gation. The Commission voted not to reopen any of the dockets recommended by the DPS in its original report. The Commis- sion also voted to deny MPIRG’s Petition to dismiss the Com- A-12 mission’s July 27, 1984 and November 13, 1984 Orders in Docket 600. The Commission did however vote to approve the AG-RUD’s Petition to reconsider the 1984 Rate Order in Docket 600. (A - 107-108). During the Commission’s November 7, 1986 deliberations and vote to reopen and reconsider Rate Case Docket 600, no Commissioner indicated he or she was aware of any evidence, in the DPS Report or otherwise, that any particular vote in Docket 600 had in fact been influenced by any contact be- tween any Commissioner and any representative of North- western Bell. (MPUC tape #86-166 (partial), tape #86-167, tape +86-168, tape #86-169, and tape #86-170 (partial) ). During said deliberations several of the Commissioners com- mented that they had no knowledge as to what was discussed at any of the meal meetings which occurred between the Com- pany’s representative and former Commissioners Adams and Hanson and had no knowledge that any particular vote was influenced by the contacts. (MPUC tape #86-166 (partial), +86-167, tape +#86-168, tape #86-169 and tape +86-170 (partial) ). Between February 12 - 19, 1987 the Commission met in Docket 600 and redeliberated on all the issues involved therein. At no time during the redeliberations and votes did any Com- missioner state that the rates which had been previously es- tablished in Docket 600 were unjust or unreasonable. (MPUC tapes +87-36 through #+87-65). The Commission voted, how- ever, to change a number of the decisions which had been made in Docket 600 several years earlier. Those changes, if put into effect, would result in lowering the Company’s annual revenue requirement by $11.9 million.* 3 The redeliberations and votes in Docket 600 and the MPUC’s re- sulting orders of April 3, 1987 and June 4, 1987 in Docket 600 are the subject of a separate appeal to this court in NWB Tel. Co. v. MPUC, C9-87-1257. A-13 On April 2, 1987 the Commission issued its final order in Docket 177 vacating the July 27, 1984 Rate Order in Docket 600. (A - 109). Northwestern Bell’s Motion for Reconsidera- tion was denied upon June 4, 1987. (A - 131). Northwestern Bell obtained a Writ of Certiorari to review said April 2, 1987 order and said June 4, 1987 order in this appeal. In the event Northwestern Bell is successful in this appeal in reversing those orders in Docket 177, the 1984 Rate Order would be reinstated and Northwestern Bell’s appeal in Dock- et 600, C9-87-1257, would be moot. STATEMENT OF FACTS As a “telephone company” within the meaning of Minn. Stat. § 237.01, Subd. 2 (1984) many of Northwestern Bell’s intrastate business activities are subject to regulation by the Minnesota Public Utilities Commission pursuant to various provisions of Chapter 237 and Chapter 216A of the Minne- sota Statutes. For example, the Commission has jurisdiction to determine appropriate changes in the general rates which the Company charges for its Minnesota intrastate telephone services. Minn. Stat. § 237.075. Ratemaking, however, is not the only activity which brings Northwestern Bell into contact with the MPUC. (Wier Dep. 25-26). As defined by Minn. Stat. § 216A.02 the MPUC en- gages in some functions which are “legislative” in nature, some which are “administrative” in nature, and some which are “quasi-judicial” in nature. An example of a legislative function would be the promul- gation of rules having general applicability to all telephone utilities such as MN Rule 7845.0100, et seq. (A - 138). An ex- ample of an administrative function would be the issuance of policy statements, not amounting to formal rulemaking, re- garding such matters as scheduling or staffing. Also, from A-14 time to time the Commission meets informally with groups such as Senior citizens, the handicapped or investment an- alysts for general background information purposes. (Hanson Depo. 12). An example of a quasi-judicial function would be resolving disputed issues resulting from a contested case hav- ing particular applicability to the conduct of a particular reg- ulated entity. Some of the issues in a ratemaking case such as Docket 600 fall into the quasi-judicial category. In addition, the MPUC engages in other activities which can have an affect on the telephone industry in general and Northwestern Bell as one of its members. For example, from time to time the Company or Commission takes positions on issues before the state legislature as to changes in the law or additions to the law applicable to the telephone industry. (Weir Dep. 16-17). Commissioners and staff members would sometimes seek information regarding such legislative con- cerns from Northwestern Bell. (Madison Dep. 54-56). During any given year there are hundreds if not thousands of topics of information which are of mutual interest to tele- phone companies such as Northwestern Bell and the MPUC. Some relate to particular pending matters but most relate to general background information. Furthermore, many fall into the legislative or administrative functions of the Commission and fewer fall into its quasi-judicial function. (Hanson Dep. 11-14). In order to facilitate the transfer of information between Northwestern Bell on the one hand and the state legislature or the Minnesota Public Utilities Commission on the other, the Company has utilized its Government Relations/Regula- tory Department. During 1984 and for eight years prior there- to Roy Weir was the head of that department. (Weir Dep. 21-23). There was a small group of employees, who had pri- mary responsibility for issues and concerns related to the A-15 state legislature who reported to Mr. Weir. There was a larger group of employees, who were primarily responsible for assist- ing Mr. Weir in preparing and providing information to the Commission and its staff and receiving information therefrom in connection with Regulatory matters. The total staff was about 32 or 33. (Weir Dep. 23-24). In addition the Company’s Legal Department would coordinate its activities with the Regulatory Department in providing information to the Com- mission of a legal nature. (Weir Depo. 24-25). 1984 was an extremely eventful year in the corporate life at Northwestern Bell. It was the first year following the breakup of AT&T on January 1, 1984 it was the first year Northwestern Bell operated under the ownership of the newly created U.S. West, Inc. It was the first year that a number of U.S. West subsidiaries were created and began working out relationships with Northwestern Bell. Similarly, state regulatory activities are significantly af- fected by regulation at the Federal level by the Federal Com- munication Commission (“FCC”) and by the decisions of U.S. District Court Judge Harold Greene who presided over the AT&T breakup. It is important for the Commission to know how the Company views the effects of Federal regula- tion on its Minnesota operations. During 1984 there was a veritable explosion of information related to the telecommunications industry in general and Northwestern Bell in particular completely unrelated to Dock- et 600. Some of it was related to technology, some was related to business concerns and some to state and regulatory issues. Most of this information had nothing whatsoever to do with particular pending quasi-judicial contested case issues such as Docket 600. During 1984, however, the Commission did consider and decided the extent to which Northwestern Bell’s request for A-16 an increase in rates would be granted in Docket 6€0 which had been filed in September 1983. In Docket 600 Northwestern Bell introduced testimony, exhibits and economic arguments through the normal con- tested case hearing process pursuant to Minn. Stat. § 237.075 and Minn. Stat. § 14.01, et seq. The Company argued in favor of aud believed it proved to the Commission that its general rates should be increased to approximately $107 million a year (its original application for $109 million was lowered during the hearing process) and that its authorized rate of return should be set at approximately 16.5%. The Com- mission’s decision in Docket 600 was issued July 27, 1984 to the following effect: —The Commission voted to slash approximately $50 million from the amount of the revenue increase NWB requested resulting in a $57.5 million increase. —The Commission voted to lower the Company’s requested authorized rate of return from 16.5% to 14.5%. —The Commission voted to order Northwestern Bell’s transfer of its Yellow Pages business to U.S. West Direct to be null and void. —The Commission also determined dozens of other issues many of which were against Northwestern Bell’s posi- tions. (MPUC Minutes re: Docket 600 Proceedings.) During 1983, 1984, and 1985 Mr. Weir had a number of personal contacts with Commission members. As head of the Company’s Regulatory activities Mr. Weir’s signature ap- peared on cover letters and correspondence which passed thousands of pages of documents to the Commission and its staff on a variety of subjects. (Weir Depo. p. 25-27, also see MPUC correspondence files.) Some were related to Docket 600, most were not. Mr. Weir also had a number of meetings A-17 with Commissioners in their offices as well as at other public locations such as restaurants. (Hanson Depo. 45-46, Adams Depo. 23-24). Some of these occurred on or near days the Commission was discussing Docket 600, but the vast majority did not. While Docket 600 was technically “pending” from the time it was filed in September 1983 unti! it was finally concluded in October 1984, there were only two dozen days out of that 14 month (420 day) period on which any Commission activity occurred regarding Docket 600. (MPUC Order April 12, 1986, pp. 6-9, MPUC Minutes, September 1983 - October 1984). On 15 of these 420 days the MPUC’s order selectively links, by time only, a date on which some Docket 600 activity occurred within three days (day before, day of, or day after) a meal oc- curring between Weir and one or more Commissioners. (MPUC April 2, 1987 Order, pp.6-9). At no time does the MPUC order find that any specific discussion occurred at any of the meal meetings regarding Docket 600. The MPUC order fails to mention that the DPS Report also produced “evidence” that during the 24 month period from May 1983 through April 1985, ten of which involved no Docket 600 activity, there were a total of approximately 125 meal meeting attended by Weir and one or more Com- missioner. (DPS Report, Exh. 17, Doc. “6,” Exh. 18, Doc. “E” and Doc. “F,” Exh. 23, Doc. “K”, Adams Depo. Exh. 4 and Madison Depo. Exh. 3). Again, only 15 of these 125 meal meetings were within three days (day before, day of, day after) some MPUC rate case activity. One hundred ten were not. (See Exhibits and Minutes referred to in this and prior paragraph). According to the depositions of Mr. Weir and Commission- ers Hanson and Adams taken by the Department of Public A-18 Services, Mr. Weir and both Commissioners had extremely busy schedules and they found it convenient to combine some of their discussions with meal time. These meals were paid for by Weir for which he was reimbursed by the Company. According to Company expense records Mr. Weir met more frequently with Commissioners Adams and Hanson but he also had at least some similar meetings with the other Com- missioners. Weir, Hanson and Adams have all testified under oath, however, that at no time at any of these meetings did they discuss the issues pending in Docket 600. (MPUC April 2, 1986 Order, p. 9 and DPS Report, p. 64). Furthermore, Han- son and Adams testified that neither was influenced in any way by the fact that the meals were provided at Company expense. (Adams Depo. 93-94, Hanson Depo. 53-57). Finally, Weir testified that he did not intend to influence the decision of the Commissioners Hanson and Adams regarding Docket 600 by the conduct of these meetings. (Weir Depo. 224-243, 257-261). Furthermore, a!] three deponents testified that topics which were discussed at these meetings were legitimate topics. For example, both Hanson and Adams testified that they were former members of the state legislature. They testified that they first became acquainted with Mr. Weir while he was acting as a lobbyist on behalf of Northwestern Bell regarding the state legislature. (Hanson Depo. 10, 39-40; Adams Depo. 8). Thus, they were familiar with the practice of legislators meeting with lobbyists for lunch. They were also comfortable in meeting Weir because they had come to know him well. Both Hanson and Adams testified, however, that they knew their role as MPUC members was different than that as leg- islators, and thus avoided some topics of discussion, such as A-19 contested rate case issues. (Hanson Depo. 22.24, 54: Adams Depo. 13-15, 25.) During his deposition Hanson also was asked to explain why the meetings between Hanson and Adams were more frequent than other Commissioners. (Hanson Depo. 44). Han- son testified that since Adams and Hanson were former leg- islators, and since Weir had first met them in that capacity, “the three of us shared a common history.” Their joint in- terest in that history and the politics associated with it formed the basis of many of their discussions. (Hanson Depo., p. 45). Hanson also testified that 1984 was the last year of his term on the Commission. Hanson testified that during 1984 he was approached regarding a vacant seat on the Minnesota House of Representatives and sought Weir’s opinion regarding that subject because he valued Weir’s legislative experience and political advice (Hanson Depo., p. 48). Hanson also testified that during 1984 there was general speculation that the senate seat formally occupied by Hanson might come up for election on short notice because the plans of the incumbent to seek another office. Hanson testified that he consulted with Weir regarding that subject. (Hanson Depo., 49-50). Hanson testi- fied that he sought Weir’s advice on whether it was worth- while for him to seek reappointment to the Commission given the fact that Hanson was a member of the opposite political party from the Governor who would be making the appoint- ment. (Hanson Depo., p. 50). Hanson also testified that during this period one or both of Weir’s parents died and Weir also was troubled from time to time regarding the serious illness of his granddaughter. Han- son testified that, “I have lost my mother and father and our families being the same age, although the families are not socializing together, we would talk at length about that.” A-20 (Hanson Depo., p. 50). Hanson testified that he believed during the same period he wrote an extensive “position paper” on the subject of “ameliorated rates.” This in-depth position paper was on an issue not before the Commission at the time. Hanson testified he valued Weir’s technical advice and political advice regarding this subject. (Hanson Depo., p. 51). Hanson was specifically asked under oath whether he be- lieved his personal relationship with Weir in anyway affected Hanson’s view of issues pending before the Commission. Han- son replied as follows: ... 1 realized that the process of making decisions in regulatory arena is a result of receiving expert testi- mony, receiving record evidence, and making a determina- tion strictly on what the Commission has before it ir- respective of who your friends are and even who your enemies are. I would say this is more, I would say some people can’t understand this and I realize that. But is more a carry- over from the legislative experience where it is not un- common at all and I have experienced it myself, where you are in a position to make very important decisions quite often against your friends, quite often against the people, your roommate, quite often against the people in the political party and everybody in the legislative process understands very well that your votes have noth- ing to do with who you know well or how well you know a person. They are strictly based on the merits before us. (Hanson Depo., p. 54). Weir also gave testimony concerning the legitimate topics of conversation which occurred during such meetings. Weir A-21 testified that he made himself available to Commissioners so that if Commissioners saw problems with the way the Com- mission was operating they could bring it to his attention. Weir also testified that he made himself available to Com- missioners at such meetings to clear up any rumors or hearsay they might have heard about the Company or to clarify any stories in the news media. (Weir Depo., p. 55). Weir was a registered lobbyist under Minn. Stat. § 10A.01 et seq. (Lobbyist Reg. No. 5-0185-0673—DPS Report, Exh. 11). Weir filed quarterly disclosure forms with the Govern- ment Ethics Practices Board which disclosed the quarterly amount he spent on entertainment and food and beverages in connection with legislative or administrative lobbying. (DPS Report, Exh. 11, Weir Depo. 268). Both Hanson and Adams testified that they had more dis- cussions with policy advocates of the Department of Public Service, one of the other parties in Docket 600, than they did with Weir and that the nature and extent of their discussions of regulatory matters with Weir was not substantially differ- ent from that with the Department of Public Services rep- resentatives. (Hanson Depo. 157-160; Adams 95-96). No wit- ness testified that any of the contacts involving Weir and the Commissioners at which meals were purchased involved discussions of Docket 600 issues. ARGUMENT I. THE COMMISSION ERRED IN FINDING THAT NORTHWESTERN BELL ENGAGED IN ILLEGAL CONTACTS WHICH AFFECTED THE COMMISSION’S 1984 RATE CASE DELIBERATIONS AND FINAL RATE ORDER. The Commission’s April 2, 1987 order in Docket 177 which vacated the 1984 Rate Order in Docket 600 purports to be A-22 based upon certain contacts which occurred between a Com- pany representative, Mr. Weir, and former Commissioners Adams and Hanson during the 14-month period between September 2, 1983 and October 23, 1984 while Docket 600 was pending. (MPUC April 2, 1987 Order, p. 10). The Com- mission found these contacts to be a serious abuse and viola- tion of the regulatory process because they were (1) allegedly illegal ex parte contacts relating to the Docket 600 rate case proceeding and (2) because Northwestern Bell paid for the meals involved in these contacts allegedly creating an illegal conflict of interest for the Commissioners. (MPUC April 2, 1987 Order, p. 12). It is clear, however, even from the summary nature of the DPS investigation and report, that none of these contacts were illegal and none of these contacts had any effect on the 1984 Rate Order. The Commission’s conclusions to the con- trary are not based upon substantial evidence in the record. A. There Was No Illegal Conduct Involved in any of Northwestern Bell’s Contacts With the Commission. During the period in question, September 1983 through October 1984, there was no Minnesota statute, rule or regu- lation in effect which specifically prohibited a representative of a regulated company from paying for meals consumed by members of the Public Utilities Commission while matters involving the regulated company were pending before the Commission. Similarly, during said period there was no Min- nesota statute, rule or regulation in effect which specifically prohibited a regulated company from engaging in ex parte contacts with members of the Public Utilities Commission. Furthermore, legislation which was in effect at that time im- plicitly authorized the contacts which the Commission now finds to be illegal. Finally, legislation and rules which have A-23 been passed long after said contacts occurred unquestionably demonstrate that both the State Legislature and the Com- mission are aware that the contacts in question did not violate any prior existing law or regulation. 1. Meals as Conflicts of Interest. The Minnesota Ethics in Government Act, Minn. Stat. Chap- ter 10A (1984), among other things, regulates lobbying activ- ities. It is clear from § 10A.01 of the Act as it existed during the pendency of Docket 600, that lobbying activities in con- nection with administrative actions, including utility rate determinations, were covered by the Act. The Act, however, did not prohibit the purchase of meals in connection with such activities but merely required that lobbyists register and file quarterly disclosure statements in a proscribed format regarding lobbying disbursements. Furthermore, since the proscribed lobbying disbursement form (DPS Report, Exh. 11) had specific line items for disclosing “entertainment” and “food and beverages” for “administrative” lobbying, it is clear that during the period in question Minnesota law autho- rized registered lobbyists to purchase meals for public officials including members of the Public Utilities Commission. Mr. Weir was a duly registered lobbyist under the Act. (Lobbyist Registration No. 5-0185-0673—-DPS Report, Exh. 11). As such Mr. Weir filed quarterly lobbyist disbursement reports with the Minnesota Government Ethics Practices Board on proscribed forms provided him by the state on which he dis- closed the quarterly amounts he spent on food and beverages in connection with his administrative lobbying activities. (DPS Report, Exh. 11; Weir Depo. 268). The Commission’s findings, conclusions and order of April 2, 1987 and order denying reconsideration of June 4, 1987 totally ignore the applicability of Minn. Stat. Chapter 10A A-24 (1984) to Mr. Weir’s contacts in this matter. Furthermore, the Commission’s orders totally ignore the finding of the DPS Report that the purchase of said meals was not a viola- tion of law as it existed during the pendency of Docket 600. (DPS Report, pp. 58-62, A-66-70). Similarly, the Commission’s orders totally ignore the only Minnesota Statute which specifically discusses conflicts of interest and members of the Public Utilities Commission. Minn. Stat. § 216A.035 (a) (1984), as it existed during the pendency of Docket 600, specifically stated: No person during his term of membership on the Public Utilities Commission shall receive any significant portion of his income directly or indirectly from any public util- ity.... (Emphasis added). Since the law at that time specifically stated that a Com- missioner could receive some portion of his income from a public utility’ so long as it was not a significant portion of his income, it is clear that the Commission’s determination that NWB’s purchase of meals for Commissioners Adams and Hanson was an illegal conflict of interest is without merit. It is also important to note that in March 1986, long after the conduct in this case had occurred, the Minnesota State Legislature changed the law. Minn. Stat. § 216A.035 was amended in two relevant respects. First, it now prohibits members of the Public Utilities Commission from receiving any income from any public utility. Second, the 1986 amend- ments specify that the new prohibitions apply to telephone companies as well as public utilities. Thus, it is clear the state legislature has recognized that the conflict of interest pro- 4 Minn. Stat. § 216A.035(a) (1984) only applied to gas and electric public utilities in 1984. In 1986 it was amended to apply to tele- phone companies as well. A-25 visions of the prior statute were not applicable to the present case. For the Commission to attempt to bring Northwestern Bell’s 1984 conduct under the reach of a 1986 change in the law, therefore, would be a gross and obvious denial of due process. ' 2. Meals as Ex Parte Contacts. In March 1986 the Minnesota State Legislature passed Minn. Stat. § 216A.037 which for the first time required the Commission to adopt rules regarding “permissible and im- permissible ex parte communications.” Prior to the passage of Minn. Stat. § 216A.037 in 1986 there was no Minnesota statutory nor regulatory definition of ex parte communica- tions, let alone a prohibition against such communications in MPUC proceedings. The Commission has now adopted rules defining impermissible ex parte contacts. They did not be- come effective until 1987. (A-137). The legislative activity of the Minnesota State Legislature and the rulemaking activ- ity of the Commission in 1986 and 1987, respectively, clearly underscores the fact that the contacts which occurred be- tween Mr. Weir and Commissioners Hanson and Adams in 1984 were not then illegal. For the Commission to rely on ex post facto statutory and regulatory prohibitions to punish conduct which previously was perfectly legal would be a clear violation of due process of law. 7 B. The Contacts Were Not “Prohibited” Ex Parte Contacts. The Commission’s April 2, 1987 order in Docket 177 wrong- fully characterizes the meetings between Mr. Weir and Com- missioners Adams and Hanson as illegal ex parte contacts. However, even under the current statute (Minn. Stat. § 216A.- 037 (1986)) and the new Commission rules (Minn. Rules Parts 78545.7000-78545.7600), which were not in effect dur- A-26 ing 1984, a communication is not an illegal ex parte contact unless it involves communications regarding a “material is- sue” in a pending contested case proceeding or disputed petition. (A-137). Thus, the mere fact that a party to a proceeding meets and has discussions with a Commissioner without other parties being present while a contested matter is pending is not a “prohibited” ex parte contact in and of itself. There must be probative evidence on the record that such a meeting also involved the discussion of a “material issue” in the contested proceeding to make the ex parte contact impermissible. While the Commission’s 1987 orders in Docket 177 ignore this ‘material issue” requirement of prohibited ex parte con- tacts, prior to the current controversy the Commission’s own legal counsel did not. On August 1, 1985 the Special Assistant Attorney General assigned to the Commission issued a legal memorandum which gave the Commission some “guidelines” in answering the question, “what is an ex parte contact?” After providing a formal definition which included such re- quirements as (a) the communication must be “related to a specific case or docket,” and (b) the communication must include, “specific facts relating to a specific utility or tele- phone” company, the opinion went on to state: However, not all contacts with parties or persons in- terested in a case are ex parte contacts. Inquiries that do not address the merits of the case . .. would not be considered an ex parte contact.” (Attorney General’s Office Memorandum, August 1, 1985 referred to in DPS Report Exh. 69; A-141, emphasis added). The contacts involving Mr. Weir and Commissioners Adams and Hanson which the Commission’s April 2, 1987 order found to be illegal were not such contacts. Former Commis- A-27 sioner Adams testified that at the meetings in question, “[WJe would discuss anything that was not a contested case before the Commission.” (Adams Depo., pp. 13-14, emphasis added). Similarly, Hanson testified that he and Weir did not discuss “anything that would be even remotely or tangentially related to the 83-600 case.” (Hanson Depo., p. 80). Further- more Hanson testified that Weir did not attempt to influence Hanson’s decision on the 600 case “during any of those meals or at any other time.” (Hanson Depo., pp. 83-84). Weir also testified that he did not discuss contested case dockets or issues with the Commissioners ex parte. (DPS Report, p. 66, A-73).5 Since none of the petitioning parties to this docket have produced any evidence which refutes this sworn testimony, there is no evidence in the record which supports the Commis- sion’s finding and conclusion that Northwestern Bell engaged in illegal ex parte contacts during Docket 600. Thus, those portions of the Commissions orders should be stricken as not based upon substantial evidence in the record and the 1984 Rate Order should be reinstated. C. The Commission’s Finding as to the “Public’s Percep- tion” of the Contacts is not Supported by any Evidence in the Record. In addition to the matters discussed in the previous section, the Commission made a number of other findings regarding Northwestern Bell’s conduct during Docket 600 which are not supported by evidence in the record. One of these related to the “public’s perception” of the contacts in questions. 5 There are many more similar sworn statements from Adams, Hanson and Weir which establish this point which are set forth in the Statement of Facts, supra, pages 13-16. A-28 On page 12 of its order the Commission finds that North- western Bell’s contacts with the Commission in connection with Docket 600 “have created an atmosphere of public dis- trust and lack of confidence in the regulatory process.” On page 4 of its order the Commission states that the Com- mission is concerned not with whether the original decision in a Docket 600 was correct but with “the public’s perception of the process” used in making that decision. There is, how- ever, absolutely no evidence in the record as to what the publie’s perception is of that process or that supports the Commission’s finding that Northwestern Bell created an atmosphere of distrust. During the original Docket 600 proceedings in 1984, a number of public hearings were held in communities all over the state which enabled the public to testify as to their view- point on the merits of Northwestern Bell’s rate increase application. In addition, during the 1984 Docket 600 eviden- tiary hearings some of the parties submitted public opinion survey data regarding some of the original issues contested in Docket 600. Thus, with respect to those original issues the Commission, the parties and the Administrative Law Judge felt it important and necessary to provide some evidence in the record as to the public’s perception. With respect to the Commission’s Docket 177 order to vacate and reopen the 1984 Rate Order, however, there was absolutely no public testi- mony taken regarding the public’s perception of the alleged contacts or their affect on the Docket 600 ratemaking process, nor did any of the parties submit any public opinion survey data regarding said public’s perception. The Commission, nevertheless, based its cataclysmic de- cision to throw out a 23, year old rate order, not on evidence that particular votes or issues were improperly influenced, vt A-29 but on the Commission’s unsupported belief that the public distrusted the process. In fact, in the MPUC’s official minutes of its motion and vote the Commission admits it was an “as- sumption” not a “finding.” (A-107). Thus, the Commission’s “finding” and conclusion in its Docket 177 order regarding the public’s perception of the processes used in conducting Docket 600 not only lacks substantial evidence to support it but it lacks any evidence whatsoever. The Commission’s find- ings, conclusions and order regarding the public’s perception of the processes used in Docket 600, therefore, should be stricken. D. The Contacts did not Affect the 1984 Rate Case De- liberations or Order. As stated earlier Commissioners Adams and Hanson both gave sworn testimony during the DPS investigation denying that the contacts involving Weir had any affect whatsoever on their decision-making in Docket 600. None of the parties to Docket 177 have offered any evidence that any specific vote or decision made in Rate Case Docket 600 was affected by said contacts. In fact, a number of the parties have ad- mitted in their pleadings in Docket 177 that they are not aware of what was discussed during the contacts in question and what effect any such discussions may have had on any particular issue in the case. The Commission’s April 2, 1987 order attempts to sub- stitute disbelief, suspicion and inference for evidence to refute the uncontradicted sworn testimony of record. As noted by the FCC in Re WORZ, Inc., 48 PUR 8rd 56 (1963), however: “Sworn denials, while not conclusive of the facts, are not to be brushed aside lightly on the basis of an indefin- able ‘normal human experience,’ . . . Suspicion, specula- A-30 tion, and conjecture are not proper substitutes for evidence, and cannot of themselves form the basis for conclusions that an applicant engaged in improper con- duct requiring its disqualification and that two or more witnesses testified falsely. .. .” (/d., p. 60-61, emphasis added). Furthermore, during the deliberations in this matter a number of Commissioners admitted they did not know what Weir may have discussed with Commissioners Adams and Hanson and did not know that any particular vote was in- fluenced in anyway by such contacts. (MPUC tape recordings 86-166 through #86-170). In fact, in its April 2, 1987 order the Commission specifically found that, “. . . it is difficult to accurately assess the effect NWB’s actions had on partic- ular votes on particular issues.” (April 2, 1987 Order, p. 10). It is also apparent from the origina] decision in Docket 600, however, and the Commission’s later analysis of that decision that it was not improperly influenced in any way by the contacts in question. During the 1984 original Docket 600 proceeding, Northwestern Bell had requested and believed it had proved to be entitled to a rate increase in excess of $107 million. The Commission, however, voted to cut that request by approximately $50 million. The Company originally re- quested and believed it proved to be entitled to an authorized rate of return of 16.5%. The Commission, however, voted to cut that request to 14.5% (which also was lower than the then existing actual authorized return of 14.9%). Two years later on August 21, 1986 the Commission received a report jointly prepared by the Commission staff and the DPS staff. (A-146). The Joint Staff Report analyzed the financial operations of the company for 1985, the first full year Northwestern Bell operated under the rates set by the 1984 Rate Order, and made the following conclusions: A-31 —Based on 1985 economic data the Commission in 1984 had set the Company’s authorized rate of return (14.5%) too low. It should have been set at 15.25%. —The rates set by the Commission’s 1984 Rate Order were also too low to allow the Company to earn either its authorized rate of return (14.5%) or the rate of return which should have been required (15.25%). Thus it is clear that Weir’s contacts with Commissioners Adams and Hanson in 1984 did not have a pro Company affect on the 1984 Rate Order. Otherwise, the Joint Staff Report would have found the Company’s authorized rate of return and rates to be too high, not too low. Since there is absolutely no evidence in the record that any of the alleged improper contacts had any affect on any decision made in Docket 600, there is no factual basis upon which the Commission can support its order to vacate and reopen the 1984 Rate Order due to tainted affect. All Com- mission decisions must be based upon substantial evidence in the record. State v. Tri-State Tel. & Tel. Co., 204 Minn. 516, 284 N.W. 294, 300 (1939). Il. THE COMMISSION HAS NO STATUTORY OR IN- HERENT AUTHORITY TO REOPEN AND VACATE A FINAL RATE CASE ORDER WHICH IS OVER 2% YEARS OLD. A. There is No Statutory Authority. The Commission’s sole authority for determining rates regarding Northwestern Bell comes from Minnesota Statutes, Chapter 237. There is no provision in that Chapter which authorizes the Commission to reopen and reconsider a tele- phone rate order once it has become final—let alone one that has been fina! for over 2%, years. Minn. Stat. § 237.075, Subd. 5 states that once the Com- mission has issued an order fixing the rates of a telephone A-32 company and has served that order on the telephone company —all of which happened in this case in 1984—“the rates shall thereafter be observed until changed, as provided by this Chapter.” (Emphasis added.) Since the State Legislature has not provided the Commission authority under Chapter 237 to change a final rate order established pursuant to Chapter 237 other than by following the procedures set forth therein, the Commission does not have express statutory authority to reopen and vacate the 1984 Rate Order. The MPUC is a creation of the State Legislature and its jurisdiction and authority are strictly limited as provided by statute. As noted by the Minnesota Supreme Court in Great Northern Railway Co. v. Public Service Commission, 284 Minn. 217, 220, 169 N.W.2d 732, 735 (Minn. 1969): It is elementary that the Commission, being a creature of statute, has only those powers given to it by the legis- lature. Backus-Brooks Co. v. N. P. Ry. Co., (8th Cir.) 21 F.2d 4, 19, where the court said: It is well settled the powers of a state Commission are special and limited, and they can exercise only such authority as is legally coa- ferred by express provisions of law, where such. cs is by fair implication and intendment incident to and in- cluded in the authority expressly conferred for the pur- pose of carrying out and accomplishing the objects for which the Commission was created, and that any reason- able doubt of existence of any particular power in the Commission should be resolved against the exercise of such power. (Emphasis added). The Minnesota Supreme Court in recent years has continued to insist that the Commission live by this doctrine of limited express authority. Peoples Natural Gas Co. v. Minnesota Public Utilities Commission, 369 N.W.2d 530, 534 (Minn. =——— ~