concurring. I agree that the Public Service Commission’s decision in this case, approving the assets sale (CA 00-855), and in the companion case, approving the rate increase (CA 00-1109), should be vacated and remanded. I write separately to encourage the parties to request rebriefing and further oral argument before this Court after the record has been supplemented with the parity order that, strangely, was not made part of the record by the Commission or by any of the parties to these appeals. As the principal opinions in these companion cases state, the record lacks a sufficient basis for us to determine whether the Commission’s decisions, which hinged on the application of the parity order, was supported by substantial evidence.
The appeal in CA 00-855 is from Order No. 15, issued by the Commission on March 29, 2000. In this order, the Commission approved the joint application of Century Tel and General Telephone Electric (GTE) to purchase and sell, respectively, certain GTE assets and properties for $843,000,000. The Commission affirmed the finding of its Administrative Law Judge (ALJ), that the sale was consistent with the public interest pursuant to Arkansas Code Annotated section 23-3-102 (1987). The Commission also affirmed the ALJ’s denial of a motion by Alltel Arkansas, Inc., AT&T, Sprint, and Southwestern Bell (SWB) to rescind the parity order prescribing that intrastate access switching rates be the same as interstate access rates.1 Alternatively, Alltel, AT&T, Sprint, and SWB sought a determination from the Commission that the parity order is inapplicable to the asset purchase and sale. The Commission denied that motion when it approved the asset purchase.
On appellate review, our task is to determine whether the Commission’s determination that the asset sale and purchase was consistent with the public interest, pursuant to section 23-3-102, is supported by substantial evidence and was taken in regular pursuit of its authority. This review includes a determination of whether Order No. 15 violated any of appellants’ rights under the United States Constitution or the Arkansas Constitution. See Ark. Code Ann. § 23-2-423(c)(3), (4) (Supp. 2001). We have often said that if an order of the Commission is supported by substantial evidence and is neither unjust, arbitrary, unreasonable, unlawful, or discriminatory, then we must affirm the Commission’s action. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).
It is a basic principle of appellate review that the decision being reviewed must be accompanied by a sufficient record containing the evidence pertinent to that decision. See Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000). That principle affects our appellate review of the instant appeal, as well as the appeal from the companion decision in this case. Although both decisions are explicitly dependent upon the Commission’s application of the parity order, the order itself is not part of the record. Moreover, the record does not demonstrate the manner in which the order was adopted nor the parties to whom the order was intended to apply. Therefore, we have no way to intelligently conclude whether the Commission’s application of the parity order is supported by substantial evidence. We do not know whether the order applies to adjudication involving the parties to the instant appeals or is limited to other parties. Nor do we know whether the parity order is perpetual or limited in its duration. We do not know whether the order resulted from a decision on the merits of a controversy or resulted from a settlement. If it is a settlement, we do not know who the settling parties were, let alone what their settlement has to do with the decisions now being appealed.
It follows, then, that we must vacate the Commission’s decision in Order No. 15 approving the sale, remand the matter to the Commission, and direct the Commission to supplement the record by forwarding the parity order discussed so prominendy in its order and in the briefs submitted by the parties to this appeal. I join the decision to vacate and remand for that purpose. I also venture to suggest that the parties may desire to petition our Court to rebrief the case and orally argue it afresh once we have reviewed the order that is so critical to the appeals.
Order No. 37 in Docket 83-042-U.