Union Telephone Co. v. Wyoming Public Service Commission , 1991 Wyo. LEXIS 177 ( 1991 )

URBIGKIT, Chief Justice,

dissenting.

I join in the dissent of Justice Macy. As recognized in majority opinion, it appears that all parties agree that the basic issue presented for appeal is whether the Public Service Commission order granted AT & T expanded authority for services previously provided by Mountain Bell with a concurrent requirement for Union Telephone to contract its historical conduct of business enjoyed prior to 1984 when the AT & T divestiture occurred, or whether the status quo of the pre-1984 business relationships of Union Telephone and Mountain Bell would be now maintained between AT & T and Union Telephone. It was the divestiture which put AT & T into the prior position occupied by Mountain Bell.

When the syllogism is stated in that fashion, all litigative participants and the majority seem to agree that the Public Service Commission order presently restricting activities of Union Telephone and commensurately expanding the rights of AT & T is directed to restore the status quo which existed prior to 1984.

With this syllogism properly stated for the issue to be appropriately defined, I observe the arguments to be academically expansive, but find that the factual assertion and conclusion by the Public Service Commission, as now restated in the majority, to be factually in error. Discussion about the “scope” of authorization of the pre-1984 certificates of convenience and necessity issued either to Mountain Bell or to Union Telephone seems to be either inconclusive in dispute or arcane in application. The real issue addressed to the real world is whether the actual conduct existent pre-1984 is maintained or now to be altered to result in harm to Union Telephone and benefit to AT & T within this area of out-of-certificated territory telephone service.

Volume I of the agency record starts with a hearing notice by the Public Service Commission dated in early 1988. The agency record in fourteen extensive volumes continues for more than a year. Judicial involvement, pursued through three more volumes of this record, started in November 1989. After an extended session conducted by the trial court on May 8, 1990, the case was certified to this court on July 9, 1990.

It would seem that a record developed and argument pursued for that period of time could have dispositively resolved one simple question as a determinable fact: Does the present Public Service Commission order reduce authorized activities of Union Telephone compared to their conduct of business before 1984 and commensurately expand AT & T into activities Mountain Bell did not conduct before 1984 — intrastate interLATA?

Although somewhat concealed in the totality of the pages of this accumulated record, I find the answer disarmingly apparent. Before 1984, Union Telephone was the retail provider to conduct this character of telephone service, but the present decision factually transfers that status to AT & T. The pre-1984 status is not maintained, the asserted goal is missed or ignored, and this decision is consequently wrong.¹ I join in the dissent of Justice Macy.

1 . It is much more difficult to sift out of the briefing, argument and record exactly what operational changes resulted from the transference of retail provider from Union Telephone to AT & T. What it does include is service of operators, billing, revenue stream, primary contact status, telephone dialing numbers and signs on telephone booths. Amazingly, all of this really started from the status of one pay telephone at one newly constructed truck stop located within the certificated territory of Union Telephone.