MCI Telecommunications Corp. v. State ( 1996 )

SUNDBY, J.

(dissenting). I agree with the trial court that the word "intrastate" as used in § 196.85(2), STATS., means "existing or occurring within the boundaries of a state ...The Random House Dictionary of THE English Language 1001 (2d ed. 1987). "Interstate" is, of course, "intrastate's" antonym. RANDOM HOUSE defines "interstate" as "connecting or involving different states: interstate commerce." Id. at 999.

I further agree with the trial court that construction of the statute is unnecessary in view of its plain language. See Girouard v. Circuit Court for Jackson Co., 155 Wis. 2d 148, 156, 454 N.W.2d 792, 795 (1990). However, because we are dealing with the construction of a statute by an administrative agency which has existed over time, we must find that the Commission's construction is unreasonable. See Carrion Corp. v. DOR, 179 Wis. 2d 254, 265, 507 N.W.2d 356, 359 (Ct. App. 1993); see also Lisney v. LIRC, 171 Wis. 2d 499, 506, 493 N.W.2d 14, 16 (1992).

The Commission's request for deference is considerably weakened by the fact that its construction was first adopted in 1984 even though the disputed language was added in the 1931 Special Session of the legislature.¹ As the court in American Motors Corp. v. DILHR, 101 Wis. 2d 337, 357, 305 N.W.2d 62, 71 (1981), stated: "This 'Johnny Come Lately' construction of the statute hardly meets the requirement that there be substantial contemporaneity to be accorded judicial deference."

In § 196.85(2), Stats., the legislature made a policy decision that the Commission's expenditures reasonably attributable to the performance of its duties relating to public utilities, and expenditures of the state for state governmental operations to support the performance of its duties, shall be assessed to a public utility only for its operating revenues "derived from intrastate operations." There is a logic to this public policy. The legislature may have concluded that fairness dictated that it require the Commission to recover only its expenditures for the provision of intrastate services to public utilities. I find it significant that § 196.85(2) requires the Commission to calculate not only its expenditures reasonably attributable to the performance of its duties relating to public utilities, but also expenditures of the state for state governmental operations to support the performance of such duties. The legislature may have considered that state governmental operations such as the provision of roads, schools, police protection, welfare services, and similar services could not fairly be attributed to the interstate operations of a public utility. We should not forget that the language we review came into the statutes in 1931. The revenues of a telephone company from long distance services in 1931 and the Commission's performance of services for such operations may have been a minor fraction of the telephone company's total revenues and of the Commission's expenditures. The legislature may well have made a different policy determination were it addressing the issue in 1996, and I suggest the Commission should convince the legislature that performance of its duties and expenditures of the state for state governmental operations to support such duties have changed dramatically, and it is now fair, even imperative, that the Commission assess telecommunication's utilities for interstate as well as intrastate operations.

Finally, I return to the language of the statute. After the Commission calculates its expenditures reasonably attributable to the performance of its duties relating to public utilities and expenditures of the state for state governmental operations to support the performance of such services, the Commission makes certain deductions and then the statute requires that, "[t]he commission shall assess a sum equal to the remainder plus 10% of the remainder to the public utilities and power districts in proportion to the respective gross operating revenues during the last calendar year, derived from intrastate operations." (Emphasis added.) If the Commission's construction of the statute is correct, the emphasized clause of this section is meaningless. The effect of the Commission's interpretation is to amend the statute to read: "The commission shall assess a sum equal to the remainder plus 10% of the remainder to the public utilities and power districts in proportion to the respective gross operating revenues during the last calendar year."

For these reasons, I cannot join in our decision. I dissent.

1 Section 196.85, STATS., became effective June 6, 1931. Laws of 1931, ch. 183, § 3.