dissenting. I disagree with the majority’s decision to vacate and remand the orders of the Public Service Commission. I believe we have sufficient information before us to decide the case on the merits and, if the merits were reached, I would affirm.
Numerous arguments are raised by the appellants in this appeal and the companion appeal, some twenty in all. I would affirm on all issues; however, I write to address what I believe is the crux of both appeals, i.e., the Commission’s decision to allow CenturyTel to use the parity order to establish intrastate switched access rates.
Despite the majority’s concern about gaps in the development of the record, I believe we can glean enough information from the testimony and exhibits to reach the issues presented. The record shows that the parity order was entered in 1985 to implement certain policy considerations, among them, to lower intrastate access rates to the same level as interstate rates.1 From the date of its implementation, all companies that filed intrastate switched access rates filed them as “parity filings,” that is, they filed intrastate rates that simply mirrored the corresponding interstate rates. In 1997, however, most telecommunications companies chose alternative regulation, pursuant to Act 77 of 1997. As a result, they were no longer subject to the parity order. GTE, however, did not choose alternative regulation; it remained subject to the order as would its successor CenturyTel if this sale were approved. The appellants’ primary argument on appeal is that, because of these changes in the regulatory environment and because of the unique situation in which an order that once had industry-wide application is now applicable to only one company, the Commission should not allow use of the parity order to establish intrastate access rates.
Appellants make some rather persuasive arguments on this point, but we cannot ignore the standard by which we review orders of the Public Service Commission. As the majority points out, the Commission has broad discretion in exercising its regulatory authority, and we may not pass upon the wisdom of the Commission’s actions or say whether the Commission has appropriately exercised its discretion. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm’n, 58 Ark. App. 145, 946 S.W.2d 730 (1997). Further, the Commission’s action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis. Bryant v. Arkansas Pub. Serv. Comm’n, 55 Ark. App. 125, 931 S.W.2d 795 (1996). In this case, the Commission might well have determined, as suggested by the PSC staff, that parity continued to be viable because it assured that like services would be charged at the same rate. That is a rational basis for the Commission’s action, and, because that rational basis exists, we should affirm the Commission’s decision. Further, I am hesitant, in the absence of clearly arbitrary decision-making, to direct the Commission to rescind one of its own orders.
I am also concerned that the majority opinion has branched into a realm that need not be visited in this case. Part of the majority’s decision to remand is based on the idea that there is not sufficient evidence in the record to allow us to determine whether the parity order produces just and reasonable rates. I do not believe we need to go behind the parity order to determine whether it produces just and reasonable rates, i.e., whether there is something inherently flawed about the parity order itself. The parity order, which was entered over fifteen years ago and has been in effect ever since, is not the order appealed from. The relevant inquiry is whether the Commission has regularly pursued its authority in continuing to apply one of its legitimately issued orders.
I am authorized to state that Judge VAUGHT joins me in this dissent.
I am disturbed by all parties’ failure to include the parity order in the record, but I believe that the testimony at the hearing, which is abstracted, provides sufficient information regarding the relevant content of the order.