ORDER NO. 98-233

ENTERED Jun 12 1998

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

AR 330/AR 331

DISPOSITION: APPLICATION FOR RECONSIDERATION DENIED

On April 17, 1998, Beaver Creek Cooperative Telephone Company and Stayton Cooperative Telephone Company (Beaver Creek and Stayton) filed an application for rehearing or reconsideration of Order No. 98-060 in these dockets, pursuant to

ORS 756.561. In that order, the Commission adopted amendments to rules using the term "telecommunications utility" (OAR 860-027-0070(2), 860-032-0005(10), and 860-032-0100(1) and (2) (AR 330) and adopted a rule to define joint and through services under ORS 759.220 (AR 331)).

Beaver Creek and Stayton challenge the Commission’s ordering paragraph number 1, which adopts the proposed amendments to rules OAR 860-027-0070(2), 860-032-0005(10), and 860-032-0100(1) and (2). Beaver Creek and Stayton also challenge the portion of the order finding that the Commission has jurisdiction to require the Form O and Form I reports from cooperatives as part of our rate jurisdiction over through services.

Beaver Creek and Stayton assert that their challenges to the order have to do with the extent to which the Commission requires cooperatives to file annual reports. Beaver Creek and Stayton request that the Commission reconsider its adoption of the changes to OAR 860-027-0070 and 860-032-0005, thus allowing cooperatives to avoid the unnecessary expense of preparing annual reports. Beaver Creek and Stayton base their request on OAR 860-014-0095(3)(c), asserting that the Commission made an error of law in adopting the proposed rule amendments. Beaver Creek and Stayton also argue that there is new information that should be considered.

APPLICABLE LAW

The statement of appeal rights at the end of Order No. 98-060 reads:

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A party may appeal this order to a court pursuant to applicable law.

ORS 756.561(1) provides:

After an order has been made by the Public Utility Commission in any proceeding, any party thereto may apply for rehearing or reconsideration thereof within 60 days from the date of service of such order. The commission may grant such a rehearing or reconsideration if sufficient reason therefor is made to appear.

OPINION

The statement of appeal rights at the end of Order No. 98-060 is erroneous. The Commission will change this statement of rights in future rulemaking dockets. The statute mentioned there applies only to contested cases. Although the language of subsection (1) refers to "any proceeding," that broad meaning is restricted by the following clause, which refers to "any party thereto." Only contested cases have parties. OAR 860-011-0035(7). ORS 756.561 applies only to contested cases, which adjudicate the rights of individuals.

Rulemaking is part of the Commission’s legislative function. Like lawmaking, the process culminates in a rule that, once adopted, has the force of law and is presumed lawful. ORS 756.565. The proper challenges to a rule are set out at ORS 183.390. That provision allows an interested person to petition the Commission to promulgate or amend a rule. A successful petition will result in a new rulemaking proceeding. The Attorney General has adopted Uniform Rule 137-001-0070 governing submission, consideration, and disposition of petitions filed under ORS 183.390. See Oregon Attorney General’s Administrative Law Manual and Uniform and Model Rules of Procedure under the Administrative Procedures Act 47, A-17, and G-11 (1997). The Uniform Rule contains no time limitation on filing such a petition.

CONCLUSION

Because Beaver Creek and Stayton’s filing does not meet the standards of ORS 183.390, their application should be denied.

ORDER

IT IS ORDERED that the application of Beaver Creek and Stayton for reconsideration of Order No. 98-060 is denied.

Made, entered, and effective ________________________.

A party may appeal this order to a court pursuant to applicable law.