1989-10-10_REVISION - M1988112 ‎(35)‎

• Permit No: M1988112
• IBM Index Class Name: REVISION
• Doc Date: 10/10/1989
• Doc Name: MEMO MLRB CONTINUING JURISDICTION DURING PENDENCY OF JUDICIAL APPEAL
• From: PARCEL MAURO HULTIN & SPAANSTRA PC
• Type & Sequence: AM1
• Media Type: D
• Archive: No

The O'Brvant decision, presents the most egregious example of
agency action which not only conflicts with the jurisdiction of the
reviewing court but which also attempts to reduce the relief
previously granted to a party. This factual situation is
sufficient to significantly limit application of the holding in
O'Bryant, to other cases. In O'Brvant, Mountain Bell disconnected
O'Bryant's long distance telephone service as a result of his
failure to pay his long distance telephone bill. O'Bryant filed
a complaint with the Public Utilities Commission ("PUC") alleging
that Mountain Bell had violated PUC Rule 13(b) which provides that
"service shall not be discontinued or refused for failure to pay
any indebtedness except as incurred for utility servicees rendered
by the utility in the State of Colorado." In a hearing before a
hearing examiner O'Bryant presented evidence that Mountain Bell
attempted to evade this rule by entering into a confidential
contract with AT&T whereby Mountain Bell would collect ;AT&T's long
distance charges. The hearing examiner found that Mountain Bell
had wilfully violated Rule 13.(b) and the hearing examiner
recommended an order which required, (1) that Mountain Bell
immediately cease from disconnecting any of its customers for
failure to pay any charges except for services rendered loy Mountain
Bell; and (2) that Mountain Bell restore service to customers
currently disconnected for failure to pay long distance charges.
The PUC adopted the recommended order, and as a result of the
finding that Mountain Bell (1) had violated a rule of general
consumer interest, O'Bryant was entitled to his attorne~f fees, and
(2) had willfully violated Rule 13(b), O'Bryant was e~.ntitled to
punitive damages.
Mountain Bell filed a writ of Certiorari for review in
the district court naming as defendants the PUC, O'Bryant and
individual members of the PUC. While judicial review w<as pending,
Mountain Bell and the PUC entered into a settlement agreement which
contained the following relevant provisions:
(1) a stipulation that the PUC decision requirinc{
Mountain Bell to cease from disconnecting it:y
customers for failure to pay charges except:
for services furnished by Mountain Bell wary
rendered moot by an amended Rule 13 which would
allow Mountain Bell to disconnect its services
for failure to pay the long distance charges
of AT&T;
(2) a stipulation that the portion of the PUC order-
requiring Mountain Bell to immediately restoree
service to customers whose telephones were
disconnected in violation of Rule 13(b) be
modified in such a manner as to require>.
reconnection only upon the customers' request;
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