concurring.
I concur with the majority that the Public Utility Commission’s (PUC) proposed method of monitoring in this case is not within the exceptions to Section 5704 of the Pennsylvania Wiretap Act, 18 Pa.C.S. § 5704, but write separately because, unlike the majority, I believe that the PUC can consider whether the wiretap laws preclude it from exercising its statutory obligation to exercise oversight of a public utility. If the PUC cannot consider whether such statutory defenses are proper, at worst, there would be gridlock between the parties and, at best, parties would have to seek declaratory judgments in this court complicating the administrative process.
The PUC proposed to monitor phone calls between customers of United Telephone Company (United) and United’s customer service representatives. United raised the Wiretap Act as a defense against PUC investigatory monitoring. The PUC held that the Wiretap Act did not preclude monitoring of the customer service and collection telephone calls reasoning that because United could monitor calls by its employees, the PUC could, for the purpose of regulating United, stand in its shoes and monitor its employees. The majority opinion holds that the PUC has no jurisdiction to make a determination as to whether the Wiretap Act prohibits its proposed monitoring and, further, holds that the Wiretap Act precludes the proposed monitoring. While I don’t disagree that the Wiretap Act precludes the proposed monitoring by the PUC, I would hold that the PUC may determine whether a defense to actions authorized by its enabling statute are precluded by other statutes such as the Wiretap Act.
For its position that the PUC has no jurisdiction, the majority relies on McClellan v. Pennsylvania Public Utility Commission, 159 Pa.Cmwlth. 675, 634 A.2d 686 (1993). However, McClellan does not control because, in that case, a customer of a public utility complained that the utility participated in illegal wiretaps. We agree with the PUC that it is not the proper tribunal to authorize wiretaps, to criminally prosecute violations of the Wiretap Act or to enforce the Act for the benefit of victims. Id. 634 A.2d at 688. But, unlike in McClellan, this case involves only proposed PUC regulatory action that is resisted by a public utility asserting possible Wiretap Act violations. The decision in McClellan does not restrict the PUC from addressing this issue.
This conclusion is supported by the decisions in Barasch v. Pennsylvania Public Utility Commission, 529 Pa. 523, 605 A.2d 1198 (1992), affirming, 133 Pa.Cmwlth. 285, 576 A.2d 79 (1990). Those opinions, although not addressing jurisdiction directly, approved the PUC’s consideration of whether the Wiretap Act applies or affects the grant or denial of a public utility’s request to provide a new type of service. To hold otherwise would be to allow the PUC to approve new services which directly violate the protections of the Wiretap Act without ever considering those protections. It is well to note that the PUC’s ultimate determination as to these ancillary questions are subject to our full review.1
*1255I also write separately because I disagree with the impression that United’s employees must consent to the monitoring because they have some sort of privacy interest. Customer service representatives can have no expectation of privacy in calls made for their employer, and the only reason the PUC cannot monitor those calls is our restrictive Wiretap Act. Inherent in its “full powers in regulating services”, Fairview Water Company v. Pennsylvania Public Utility Commission, 509 Pa. 384, 502 A.2d 162, 165-66 (1985), the PUC is neither precluded from ordering United to install separate microphones on the employee’s equipment so that only their responses could be heard so as to move the monitoring outside the Wiretap Act,2 nor from requiring United to make it a condition of employment that the employees consent to PUC monitoring of their side of the customer service conversations.
SMITH, J., joins in this concurring opinion.
. The courts give deference to an agency’s interpretation of statutes when that agency is interpreting a statute that it is charged with enforcing or the administrative decision is one within its area of expertise. Pennsylvania Electric Company v. Pennsylvania Public Utility Commission, 166 Pa.Cmwlth. 413, 648 A.2d 63, 75 (1994), petition for allowance of appeal denied, 542 Pa. 680, 668 A.2d 1141 (1995). Because the Wiretap Act is not a statute the PUC is charged with enforcing and it has no expertise in the area, its interpretation of the Wiretap Act would not be given deference by this court.
. Section 5702 of the Wiretap Act, 18 Pa.C.S. § 5702, defining "wire communication”.