concurring.
I concur in the result.
APPENDIX A
A.R.S. § 13-2920 provides as follows: Advertisements and required preamble message for telephone information services; telecommunications corporation compensation; definitions; classification.
A. An information access telephone service provider shall not provide or sponsor an advertisement, publication or other communication regarding information access telephone service that does not clearly and conspicuously display the price for each call or for each minute of the call or provide or sponsor a television or radio advertisement that does not include a clearly audible voice announcement of the price for each call or for each minute of the call.
B. Information access telephone service providers shall begin each information access telephone service call with a clear statement, without charge, of whether the call is billed on a per minute or a per call basis and the price for the call or for each minute of the call.
C. Information access telephone service providers shall compensate any telecommunications corporation transporting the provider’s service for all charges associated with blocking information access telephone services, and shall make arrangements with the telecommunications corporation for a one time adjustment per residential customer account for an information access telephone service charge if the adjustments involve calls made by minors without authorization or involve claims of fraud, theft or misrepresentation. An adjustment pursuant to this subsection, except for billing and transport charges, shall be charged to the information access telephone service provider who shall not attempt private collection of any adjustments to customers’ accounts made by a telecommunications corporation.
D. An information access telephone service provider shall not provide an information access telephone service which describes or depicts, directly or indirectly, sexual conduct or activity or which contains sexually suggestive content unless access to such service is restricted to persons eighteen years of age or older and requires that the service is provided by subscription through the information access telephone service provider.
E. An information access telephone service provider shall not provide recorded announcements or live programs which forward or refer callers to telephone numbers which are not 976 service or 676 service for the purpose of the type of services provided by 976 service or 676 service.
F. In this section:
1. “Information access telephone service” means telephone service and facilities which provide access to a provider-sponsored prerecorded or live announcement or program and which is commonly referred to as “976 service” or “676 service”.
2. “Provider” means a person, partnership, corporation or organization that contracts with a telecommunications corporation to transport telephone calls, bill customers or collect charges for a prerecorded or live announcement or program.
3. “Adjustment” means a waiver of all unpaid charges incurred by the residential customer for information access telephone services up to the time the customer contacts the telecommunications corporation and requests the adjustment.
G. A person who violates this section is guilty of a class 3 misdemeanor.
SUPPLEMENTAL OPINION
FELDMAN, Vice Chief Justice.Mountain Bell has applied for attorney’s fees pursuant to A.R.S. § 12-348(A)(5), which provides as follows:
*360A. In addition to any costs ... a court shall award fees and other expenses to any party ... which prevails by an adjudication on the merits in any of the following:
5. A special action proceeding brought by the party to challenge an action by the state against [that] parly.
(Emphasis added).
Mountain Bell’s special action challenged the regulations imposed by the Arizona Corporation Commission under Decision No. 56039. The word “state” in A.R. S. § 12-348 includes “any agency, ... board or commission of this state.” A.R.S. § 12-348(H)(3). Despite the Commission’s protestations, we must acknowledge that Mountain Bell “prevailed] by an adjudication on the merits” when this court held that the subscription requirement portion of the Commission’s order was void and unenforceable. We conclude that A.R.S. § 12-348(A)(5) applies and Mountain Bell has a right to attorney’s fees.
The Commission nevertheless argues that we may exercise discretion to deny fees or reduce them significantly. If we had discretion to do so, we undoubtedly would accede to the Commission’s position, for one very good reason — the dispute here is essentially one between the utilities’ ratepayers and the state’s taxpayers. Shifting fees will do little to ameliorate the burden of litigation except, perhaps, for the lawyers involved. Mountain Bell argues, however, that the statute gives this court no discretion regarding the fee allowance it sought.
As noted, the statute provides that the court “shall award fees.” Occasions exist in the law where the word “shall” has been interpreted as something less than a mandatory requirement. See, e.g., Arizona Downs v. Arizona Horsemen’s Foundation, 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981) (the word “shall” is usually mandatory, but may be construed as permissive depending on the context and intent of the drafters); State v. Sanchez, 119 Ariz. 64, 68, 579 P.2d 568, 572 (Ct.App. 1978) (the word “shall” in a wrongful death statute means “must” or “may” depending on the context of the statute and the legislative intent), cited in Summerfield v. Superior Court, 144 Ariz. 467, 472, 698 P.2d 712, 717 (1985).
The legislative history of A.R.S. § 12-348(A)(5) informs our decision. The original version of HB 2229, which as modified became A.R.S. § 12-348, provided as follows:
[A] court shall award fees and other expenses to any party other than the state which prevails in any civil action ..., unless the court finds that the position of this state was substantially justified or that special circumstances make an award unjust.
(emphasis added). The emphasized portion of the proposed statute provided the court with discretion to deny or reduce fees where the award would be unjust. In fact, the drafters of HB 2229 based the bill on the federal Equal Access to Justice Act (28 U.S.C. § 2412), which provides that a court “may award reasonable fees.” See Minutes of Senate Judiciary Committee, Apr. 7, 1981, at 4.
In various Senate and House committees, however, witnesses and legislators expressed concern over the “substantially justified” language in both the Senate and House versions of the bill. See Minutes of Senate Standing Subcommittee of Committee on Judiciary, Feb. 16, 1981, at 1 (discussing SB 1047 of 1981 and recommending it be held until it could be considered with “similar house bills,” presumably HB 2229 of 1981); Minutes of House Committee on Tourism, Professions and Occupations, Feb. 23, 1981, at 3 (discussing HB 2229 of 1981); Minutes of House Judiciary Committee, Mar. 9, 1981, at 4 (discussing HB 2229 of 1981); Minutes of Senate Judiciary Committee, Apr. 7, 1981, at 5 (discussing HB 2220 of 1981). Witnesses, including Robert Robb from the Arizona Chamber of Commerce, testified in support of the Senate and House bills but also expressed “concerns” with the “substantially justified” language.
*361Specifically, on March 9, 1981, Mr. Robb appeared before the House Committee on the Judiciary, in support of an amendment to HB 2229 eliminating the “substantially justified” language. Mr. Robb explained “that the federal [version] would have allowed the government to escape the payment of attorney fees and that the amendment tightens up the process.” Minutes of Meeting, Committee on the Judiciary, Mar. 9,1981, at 4. It was then moved that “HB 2229 as amended do pass.” The motion carried and, so far as we can tell, resulted in deletion of the discretionary language in the original proposal and the adoption of A.R.S. § 12-348 in its present form.
Given this legislative history, we conclude that by the use of the words“shall award fees” in § 12-348(A), instead of the phrase “may award fees” used in the federal analog, the legislature intended to make an award mandatory. Thus, the statute entitles a “party” prevailing “by an adjudication on the merits” in a proceeding challenging action by a state commission to an award of attorney’s fees. The only exceptions to this rule are those set forth in § 12-348(B), which permits the court to deny or reduce awards where the prevailing party has protracted the final resolution, where an intervening change in applicable law has occurred, or where the prevailing party refused a settlement as favorable as the relief ultimately granted. None of these exceptions applies to this case.
As happens sooner or later when courts are deprived of discretion to apply common sense and principles of justice to diverse factual situations, the statute here compels a result that falls somewhat short of good sense. Nevertheless, applying the statute in accordance with specific legislative intent, we must order the taxpayers who fund the Commission to reimburse the ratepayers who pay the operating costs of their telephone utility for attorney’s fees expended by the latter in fighting the former. If the legislature desires that this court have discretion to exercise common sense, it can so indicate by appropriate amendments to the statute.
One final issue remains. Mountain Bell requests fees significantly exceeding the statutory limit. A.R.S. § 12-348(D) provides that the fees awarded shall be based on “prevailing market rates,” except that the “maximum amount of seventy-five dollars per hour” shall be allowed for attorney’s fees “unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee.” A.R.S. § 12-348(D)(2). Although counsel for Mountain Bell are certainly qualified attorneys, we have no doubt that many other law firms would also consider themselves qualified to represent Mountain Bell on the general free speech issues involved in this case. Given our disinclination to award any fees, we are not disposed to exercise what little discretion we have by exceeding the hourly maximum set by statute. See Tanner Companies v. Arizona State Land Department, 142 Ariz. 183, 196, 688 P.2d 1075, 1088 (Ct.App.1984). We therefore limit the allowance to $75 per hour, even though we note that the market rate for services such as those provided here exceeds that amount.
The application is granted. Costs are allowed as claimed. Fees will be allowed in accordance with this opinion.
GORDON, C.J., CAMERON, J., and GRANT, Court of Appeals Chief Judge, concur. Justice James Moeller did not participate in this decision; pursuant to' Ariz. Const, art. 6, § 3, Chief Judge Sarah D. Grant of the Court of Appeals, Division One, was designated to sit in his stead; Justice William A. Holohan retired before the decision of this case; Justice Robert J. Corcoran did not participate in the determination of case.