dissenting.
I dissent because I do not agree that Or Newspaper Publ. v. Peterson, 244 Or 116, 415 P2d 21 (1966), "compels the conclusion that the statutes do not delegate to the Commissioner the authority to enact the 'tagline’ rule.” 43 Or App 1006.
In Peterson, a Board of Pharmacy ruling prohibiting advertising was held outside that Board’s statutory authority. A reading of the ORS chapters creating *1018the position of Public Utility Commissioner and describing his powers and duties convinces me that his function is distinguishable from that of the Board of Pharmacy and that the legislature has granted the Commissioner sufficient authority to justify the "tag-line” regulation.
At the time of the Peterson decision the Board of Pharmacy was composed of five members all of whom had to be licensed Pharmacists.1 Apart from several more specific powers, the Board was empowered by former ORS 689.620 to
"(1) Make regulations, necessary for the protection of the public, pertaining to the practice of pharmacy and the lawful performance of its duties.
"(2) Regulate the practice of pharmacy.”
As quoted by the majority, the Peterson court concluded that nothing in ORS 689.620 or elsewhere in the chapter suggests that advertising was contemplated as a proper subject of regulation.
In the case before us we are dealing not with a competitive profession regulated by its own members, but with public utilities regulated by a commissioner who is not allowed to have any pecuniary interest in those entities which are subject to his regulation. ORS 756.026(l)(c) and (d).
The Commissioner is given broad investigatory and regulatory powers in ORS chs 756 and 757. As cited by the majority ORS 756.040(1) empowers the Commissioner to "represent the customers * * * generally in all controversies respecting rates, valuations, service and all matters of which has been jurisdiction” and to "protect such customers, and the public generally, from unjust and unreasonable exactions and practices and to obtain for them adequate service at fair and reasonable rates.” I do not agree with the majority’s interpretation which would make this statute a toothless
*1019grant of authority, since the authority granted therein is specifically granted '[i]n addition to the powers and duties now or hereafter transferred to or vested in the commissioner. ”
ORS 756.040(2) empowers the Commissioner to regulate and supervise public utilities in furtherance of the jurisdiction granted by section (1) and "to do all things necessary and convenient in the exercise of such power and jurisdiction.”
I read ORS 756.040, in conjunction with the rule-making authority provided by ORS 756.060, as granting the Commissioner the authority to make regulations which will aid him in his statutory function of protecting the customer. I believe my reading is bolstered by ORS 756.062(2) which calls for a liberal construction of the laws administered by the Commissioner.
The majority points to ORS 757.105(l)(c) as restricting any power the Commissioner may have over advertising to political advertising and then further finds that the statute does not in fact empower the Commissioner to regulate political advertising. I find this discussion beside the point, since ORS 757.110(2) provides that
"(2) Nothing in ORS 757.105 or 757.107 prevents the commissioner from at any time making and filing orders rejecting imprudent and unwise expenditures or payments. Such orders when so made shall be in full force and effect, and the public utility shall not have the right to make such expenditures or payments found to be imprudent or unwise until the order has been vacated or set aside in a suit brought and prosecuted as provided in ORS 756.580 to 756.610 or modified or set aside by the commissioner.”
Advertising is an expenditure of the regulated industries and the Commissioner is empowered and required to protect customers from unjust expenditures. By requiring taglines, the Commissioner is providing *1020the customers with the information necessary for them to give him their views about utility advertising expenditure.2 It is these views that the Commissioner is required by ORS 756.040 to represent in regulating industries.
In discussing the "tagline” rule, the majority cites the Peterson language which states that there is nothing in chapter 689 to authorize regulation by the Board of advertising and concludes that the same is true of those statutes granting power to the Commissioner. 43 Or App 1007. Yet the majority would allow regulation of advertising in the form of the guidelines, because of the Commissioner’s broad rate-making authority. I agree that the Commissioner has broad rate-making authority, "commensurate with that of the legislature itself.” American Can Co. v. Davis, 28 Or App 207, 221, 559 P2d 898 rev den (1977). I read this broad grant of rate-making authority as sweeping enough, particularly when read together with the duties and powers provided for in ORS 756.040, to give the Commissioner the power to provide customers of the regulated industries with information which can assist him in representing customers in the setting of rates and in protecting customers from unreasonable and unjust expenditures. Since I read the Commissioner’s rate-making authority as broad enough to allow for the tagline rule, I find all of the majority’s arguments justifying the "guidelines” to be equally persuasive as to the "taglines.”
*1021Unlike the Board in Peterson, the Commissioner is not forbidding advertising; nor is he regulating its message as he does to a certain extent through the guidelines. He is merely setting up a mechanism for communication with customers of the regulated industry.3 I am convinced that the legislature intended to thus empower the Commissioner when it admonished him to represent and protect the customer, for this representation of customers appears to be at the heart of the Commissioner’s function; whereas, the Pharmacy Board, at least as it functioned at the time of the Peterson opinion, was largely in the business of licensing and overseeing its competitive profession and did not, nor does it now, have power over a collection of quasi-public, monopolistic industries. The exclusively public function of the Commissioner distinguishes him and his powers in my mind from the Pharmacy Board and its powers.
I conclude that the unique authority of the Commissioner, as set forth in ORS chs 756 and 757, more than justifies his promulgation of the tagline rules and sufficiently meets the Peterson requirement that agency regulations must be shown to fall "within a clearly defined statutory grant of authority.” 244 Or at 123.4 I, therefore, respectfully dissent.
1965 ORS 689.510 and 689.530. Current ORS 689.530 provides for two members of the general public to serve on the Board along with five pharmacists.
The necessity for this information is thrown into greater relief by the following stipulation agreed upon by the parties.
"A substantial portion of the customers who correspond with the Oregon Public Utility Commissioner and his Staff demonstrate an explicit belief or implicit assumption that all utility advertising costs are charged directly to rate-payers. The Commissioner’s allowances or disallowances of the utility’s advertising expenses for ratemaking purposes sometimes are contested issues and, therefore, are discussed in official rate orders. Only those individual customers who become parties to the administrative proceedings automatically receive copies of the rate orders.”
The Commissioner’s order expressed the following purpose for the tagline regulation:
"The purpose is to provide customers with information. Although customer awareness initially may create some customer dissatisfaction, utility management has an obligation to justify its advertising practices to its customers and its investors. The labeling rule will notify customers as to which advertisements they are paying for, and permit them to seek, if they desire, management’s justification.”
While I find authority for the Commissioner under the standard enunciated in Ore. Newspaper Pub. v. Peterson, I note, as did Justice Sloan in his dissent to that opinion that the Supreme Court has not overruled Van Ripper v. Liquor Cont. Com., 228 Or 581, 365 P2d 109 (1961), wherein the Supreme Court stated:
" 'Obviously the [Liquor Control], in writing rules and enforcing them, can not undertake anything contrary to the statute itself. But it *1022can fill in interstices in the legislation (Gouge v. David, supra) and thereby aid the statute to accomplish its purposes. The legislature, in drafting an act, can not always foresee the developments that will occur when an agency created by it proceeds to administer the act. Such was the juncture of events that occurred in the case now before us. Since the legislators can not peer far into the future they may confer upon an agency to which they entrust the administration of the act enacted by them power to write the needed rules when a crises threatens that is within the purview of the act.
"* * * * *
" 'The interpretation of an act by the agency entrusted with its administration is generally given careful consideration by the courts, Gouge v. David, supra. There can be no doubt but that the [Liquor Control] construes the "Sale of Alcoholic Liquor by Individual Drink” act as enjoining upon it the duty to prevent the recurrence of the evils that lurked in the saloon. In the latter, as we have noted, alcoholic beverages, if not the sole objects of sale, were the principal objects thereof.’ 228 Or at pp. 591-593.” 244 Or at 116.
In Van Ripper, the Supreme Court allowed a regulation requiring commercial establishments to keep records and show that their gross receipts for the sale of food amount to 25 per cent of gross receipts for the sale of both food and alcohol. The court allowed the regulation despite the fact that it was not specifically authorized by statute, relying instead on general grants including a grant of power
"[t]o adopt such regulations as are necessary and feasible for carrying out the provisions of this chapter and to amend or repeal such regulations, and to exerise such other powers, duties and functions covered by this chapter, and all powers incidental, convenient or necessary to enable it to administer or cany out any of the provisions of this chapter.” ORS 472.060(1)(d).
This court has also decided cases wherein it was concluded that it was reasonable for the involved agencies to assume the subject rule-making was within their broad grants of statutory authority. See, e.g., Brusco Towboat v. State land Bd., 30 Or App 509, 567 P2d 1037 (1977), affirmed as modified 284 Or 627, 589 P2d 712 (1978); Crouse v. Workmen’s Comp. Bd., 26 Or App 849, 554 P2d 568, rev den (1976); McQuaid v. SAIF, 36 Or App 83, 583 P2d 572 (1978), rev den (1979).
Further, the Supreme Court’s recent decision in McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979), requires administrative agencies to take responsibility for defining statutory terms which call for "completing a value judgment that the legislature itself has only indicated.” 285 Or at 550. McPherson indicates an increased willingness by the Supreme Court to allow administrative agencies to exercise discretion in interpreting legislative language and casts doubt upon the continuing viability of the Peterson decision. See also Marbet v. Portland Gen. Elect., 277 Or 447, 561 P2d 154 (1977); Oliver v. Employment Division, 40 Or App 487, 595 P2d 1252 (1979); Springfield Education Assn. v. School Dist., 42 Or App 93, 600 P2d 425 (1979).