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06/06/96 PEOPLE EX REL. COMMERCE COMMISSION v.

June 6, 1996

THE PEOPLE EX REL. THE COMMERCE COMMISSION, PLAINTIFF-APPELLANT,
v.
OPERATOR COMMUNICATION, INC., D/B/A ONCOR COMMUNICATIONS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. 94 CH 5288. Honorable Edwin M. Berman, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court: Theis and S.m. O'brien, JJ., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

This appeal is addressed, not to the merits of the litigation, but to the question of where it must begin. We consider under what circumstances the Illinois Commerce Commission may seek an injunction under section 4-202 of the Public Utilities Act without first affording a public utility a hearing before the Commission. We agree with the trial court's conclusion that a hearing was required in this case, and we affirm the dismissal of the complaint for an injunction.

The Illinois Commerce Commission regulates public utilities under the Public Utilities Act (220 ILCS 5/1-101 et seq. (West 1994)). The Universal Telephone Service Protection Law of 1985 (220 ILCS 5/13-100 et seq. (West 1994)) incorporates article X of the Public Utilities Act (220 ILCS 5/10-101 to 5/10-204 (West 1994)). 220 ILCS 5/13-101 (West 1994). The Telephone Protection Law requires telecommunications carriers, before they can operate, to file a tariff with the Commission which describes the nature of the service, applicable rates, and other charges. 220 ILCS 5/13-501 (West 1994). Oncor Communications, a carrier under the Public Utilities Act, filed a tariff with the Commission and is now licensed to provide telecommunications services.

The seed of this litigation was planted when employees of the Commission made 25 intrastate telephone calls from 20 different pay telephones in Chicago on February 7, 8, and 9, 1994. Oncor serviced the calls. The employees charged the calls to credit cards and received a bill from Oncor on March 1, 1994. The staff of the Commission analyzed the bill. They then prepared a "Resolution" which was adopted by the Commission on June 10, 1994. The "Resolution" states:

"The detailed charges from Oncor for pay phone calls made by staff between February 7 and February 9, 1994, and which calls were charged by staff to a credit card, showed for particular calls misstated charges, including charges for services which were not rendered to the staff, earlier start times for calls than those made by staff, longer call durations than those recorded by staff, and in all cases indicated charges which could not be verified by staff based on Oncor's filed tariffs."

The "Resolution" asks the Attorney General to initiate an injunctive proceeding against Oncor.

The Attorney General, prompted by the resolution, filed an action in the circuit court on behalf of the Illinois Commerce Commission against Oncor. The complaint alleges "the Commission found that Oncor is violating Illinois law" according to the "Resolution" prepared and adopted by the Commission on June 10, 1994. The complaint seeks to enjoin Oncor from "charging rates other than those found in its tariffs, charging for operator assisted telephone calls when no operator assistance occurred, and assessing more time than is allowed under its tariffs for intrastate telephone calls."

The complaint was filed under section 4-202 of the Public Utilities Act which is entitled "Mandamus or injunction proceedings at instance of Commission." That section provides:

"Whenever the Commission shall be of the opinion that any public utility *** is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or any order, decision, rule, regulation, direction or requirement of the Commission, issued or made under authority of this Act, the Commission shall file an action or proceeding in the circuit court *** in the name of the People of the State of Illinois, for the purpose of having the violation or threatened violation stopped and prevented, either by mandamus or injunction." 220 ILCS 5/4-202 (West 1994).

Oncor moved to dismiss the complaint under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)). Oncor denied that it was acting in violation of its tariffs and argued that the Commission failed to give it notice and the opportunity for a hearing as required by section 10-101 of the Public Utilities Act and section 10-25(a) of the Administrative Procedure Act. Section 10-101 of the Public Utilities Act states:

"In the conduct of any investigation, inquiry or hearing the provisions of the Illinois Administrative Procedure Act *** shall be applicable and the Commission's rules shall be consistent therewith. Complaint cases initiated pursuant to any Section of this Act, investigative proceedings and ratemaking cases shall be considered 'contested cases' ***." 220 ILCS 5/10-101 (West 1994).

Section 10-25(a) of the Administrative Procedure Act states "in a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice." 5 ILCS 100/10-25(a) (West 1994). A contested case is "an adjudicatory proceeding *** in which the individual legal rights, duties, or privileges of a party are required by law to be ...


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