dissenting. I am once again compelled to dissent to the cavalier approach taken by this court in affirming an order of the Public Utilities Commission of Ohio (“PUCO”). The PUCO order of February 11, 1986 is clearly unlawful and unreasonable under R.C..4903.13.
Initially, MCI Telecommunications Corporation (“MCI”) was statutorily entitled to notice and a hearing prior to the issuance of the order. The PUCO relies upon R.C. 4905.26 as authority to set the access rates in the order. With respect to a complaint concerning the lawfulness or reasonableness of a utility rate, R.C. 4905.26 provides that when “it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof * * *.” Although hearings were held before the PUCO issued its May 21, 1984 order which created the system for determining access charges and the residual revenues pool, the February 11, 1986 order which implements the system provided for in the May 21, 1984 order is controlled by R.C. 4905.26 as well.
Therefore, the February 11, 1986 order should have been preceded by a hearing also, rather than the “notice and comment” procedure used by the PUCO. The portion of the statute requiring that there be reasonable grounds for complaint was satisfied, in that there was great debate among the parties as to how much each had contributed to the residual revenues pool and as to how the pool surplus should be divided. As a result, MCI was denied due process of law when the PUCO issued its February 11, 1986 order without holding a hearing and giving notice to the parties under R.C. 4905.26.2
*315Although I am of the view that the failure of the PUCO to give notice and hold a hearing prior to issuing the order is sufficient to require a reversal of that order, there is an additional reason why the order is unlawful and unreasonable. R.C. 4903.09 requires that in “all contested cases heard by the public utilities commission, * * * the commission shall file * * * findings of fact and written opinions setting forth the reasons prompting the decisions arrived at, based upon said findings of fact.”
The majority cites, and then conveniently ignores, cases in which we have held that PUCO orders should be reversed and remanded if they are not based upon the record or any specific finding of fact. See Ideal Transportation Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 195, 71 O.O. 2d 183, 326 N.E. 2d 861; Motor Service Co. v. Pub. Util. Comm. (1974), 39 Ohio St. 2d 5, 68 O.O. 2d 3, 313 N.E. 2d 803. In the case subjudice, the PUCO did not base its order on the facts in the record. The PUCO merely concluded that there was a lack of available information on which to base a distribution of the local surplus. Essentially, the PUCO assumed that the local and long distance companies contributed equally to the pool, and its order provides that the pool surplus should therefore be distributed pro-rata. Thus, the order is unlawful because it violates R.C. 4903.09. A hearing should have been held to resolve the conflicting views of the parties involved in this issue and to enable the PUCO to gather information on which to base a more equitable distribution of the pool surplus.
Again, I must express my disillusionment with the manner in which the majority reaches its conclusion to affirm the PUCO order. This court is under a statutory duty to determine if a PUCO order is unlawful or unreasonable. Simply deferring to the decisions of the PUCO, in my view, is an evasion of the responsibility placed upon this court pursuant to R.C. 4903.13.
Based upon the foregoing, I would reverse and remand this case for further proceedings.
The majority states that the appellant was not prejudiced by the failure of the PUCO to hold a hearing. I disagee. MCI was prejudiced because the PUCO never *315gave MCI an opportunity to substantiate its allegations at an evidentiary hearing before it promulgated the order. In this respect, the “notice and comment” procedure was obviously deficient.