dissenting. I disagree with the majority’s position for two primary reasons. First, the majority has failed to acknowledge that the parties in this action, along with other state utility commissions and public utility companies, were just recently involved in an action in the United States Court of Appeals, Fourth Circuit, wherein that court upheld *292the lawfulness of the FCC preemption order.3 See Sections 2342 et seq., Title 28, U.S. Code. Inasmuch as the federal circuit courts of appeals have exclusive jurisdiction in this area and, inasmuch as the resolution of that action has a direct and substantial impact on the outcome of this case, this court would be well-advised to set this cause for rehearing to allow the parties to rebrief and reargue orally the merits of this cause in light of the decision rendered by the federal court.
Secondly, the lifting of the stay and the concomitant release of the funds accumulated in this case at this time are unnecessary. Since March 9, 1983, the date when the commission ignored the FCC preemption order and proceeded to order CBT to instead utilize whole life depreciation accrual schedules, a stay has been in effect pursuant to this court’s authority under R.C. 4903.16. By order of this court and in accordance with this stay, CBT has deposited over $13,000,000 into a trust account (see R.C. 4903.18), the vast majority of which represents the difference between depreciation rates prescribed by the commission and those ordered to be implemented by the FCC. This stay and the establishment of the trust account adequately protect both the public’s interest in this case as well as CBT’s. Nevertheless, the majority, in callous disregard of the decision released by the Fourth Circuit, has ordered the disbursement of this money to CBT’s customers at this time. Since the FCC order was upheld by the Fourth Circuit, the release of this money at this point in time could irreparably harm CBT. Accordingly, in view of the fact that the stay currently in effect adequately protects both the interests of CBT and its customers, I would extend the stay pending rehearing of this cause before this court.
Holmes, J., dissenting. While I agree with Justice William Brown’s opinion above, I write to voice my disagreement with other conclusions reached by the majority.
In case No. 83-392, the commission erred on rehearing when it considered additional evidence with respect to ENFIA usage and did not allow CBT to present rebutting evidence concerning the usage. This court has already held that such procedure is incorrect. In Forest Hills Utility Co. v. Pub. Util. Comm. (1974), 39 Ohio St. 2d 1 [68 O.O.2d 1], the court examined a commission’s ruling in which the commission took administrative notice of a utility’s cost for the purpose of rate base considerations. The cost analysis was not available at the initial hearing and the utility was not given an opportunity to explain or rebut the figures. This court reversed the commission and stated that “ ‘[e]ven though an administrative authority has statutory power to make independent investigations, it is improper for it to base a decision or findings upon facts so obtained, unless such evidence is introduced at a hearing or otherwise brought to the knowledge of the interested parties prior to decision, with an opportunity to explain or rebut.’ ” See, also, Annotation (1951), 18 A.L.R. 2d 552, and cases cited therein.
*293By failing to recognize Forest Hills, the majority establishes the precedent to allow the commission to take administrative notice of facts which are subject to dispute. Now the commission can effectively preclude a party from demonstrating the unworthiness of the evidence in question. In my view, taking administrative notice of facts without permitting an opposing party the opportunity to explain or rebut such evidence is a denial of a fair hearing and due process.
As to the issue of expensing station connection charges within case No. 83-733, see my dissenting opinion in Consumers’ Counsel v. Pub. Util. Comm. (1984), 10 Ohio St. 3d 49, 51.
In case No. 83-1595, the commission clearly abused its discretion when it ruled that two letters written by FCC members were inadmissible as hearsay. While the commission is not stringently confined to the Rules of Evidence in admitting evidence during an administrative proceeding, the rules do provide excellent criteria to guide the commission’s discretion.
Evid. R. 803(8) sets forth the hearsay exception for public records and reports. In essence, a report is admissible under the rule if the official making the statement has a legal duty to report the matters contained in the document. The FCC officials who wrote the correspondence were duly authorized to engage in the activity, and the statements contained in the letters clarified the position of the FCC in matters relating to this appeal. Furthermore, one letter had an additional element of reliability as it was published in the Federal Register under the mandates of Section 552(a)(1)(D), Title 5, U.S. Code.
CBT has been prejudiced due to the commission’s evidentiary rulings as it has not been afforded the opportunity to sufficiently address the subscriber plant factor issue. The FCC had already interpreted the factor. However, from the record it is apparent that the commission refused to consider this interpretation. CBT was thereby precluded from demonstrating the FCC’s view that the freezing of the subscriber plant factor permits corresponding fluctuation in the MTS/WATS or ENFIA factors to maintain an overall freeze. I believe the FCC interpretation was certainly relevant to this issue and the commission committed error in its refusal to consider such evidence.
Accordingly, I would extend the stay order pending a rehearing in case No. 83-392 to determine the lawfulness of the FCC preemption in light of the Fourth Circuit Court of Appeals’ decision, and reverse the rulings made by the commission as to the foregoing issues.
Case No. 83-1136, argued October 7, 1983, released June 19, 1984.