with whom ROBERTS, Active Retired Justice, joins, dissenting.
[¶ 25] Because I conclude that the Basic-Service Calling Area rule, M.P.U.C. Reg. 65-407, ch. 204 (June 25, 1994), constitutes retroactive ratemaking and that its promulgation was beyond the statutory authority of the Maine Public Utilities Commission, I must respectfully dissent.
[¶ 26] “It is axiomatic that ‘the powers of the Public Utilities Commission are derived wholly from statute.’ ” New England Tel. & Tel. Co. v. Public Utils. Comm’n, 362 A.2d 741, 753 (Me.1976) (NET II) (citing Stoddard v. Public Utils. Comm’n, 137 Me. 320, 19 A.2d 427, 428 (1941)). Thus, when reviewing the actions of the Commission, “we must look to the statutes creating the Commission and endowing it with the power to regulate the public utilities of this State.” Id. Our usual deference to the Commission’s expertise will give way when the Commission is not explicitly or implicitly granted the authority to take the particular action under review.
[¶ 27] As the Court correctly recognizes, our past decisions clearly demonstrate that the Commission is without explicit or implicit authority to remedy past rates that are subsequently declared unjust or unreasonable. See New England Tel. & Tel. Co. v. Public Utils. Comm’n, 354 A.2d 753, 764 (Me.1976) (NET I) (holding that the Commission does not have the power to “establish ‘temporary rates as a means of providing an after the fact remedy for an entirely past situation no longer continuing at the time the Commission establishes ‘temporary rates”); NET II, 362 A.2d at 753 (holding that the Commission “lacks authority to attach refund or surcharge provisions to utility rate schedules”); First Hartford Corp. v. Central Me. Power, 425 A.2d 174, 181 (Me.1981) (holding that changes in statute did not change the “cardinal principle ... that the Commission had no express, implied, or incidental power to revise rates retroactively”); Maine Pub. Advocate v. Public Utils. Comm’n, 476 A.2d 178, 183 (Me.1984) (holding that even past errors that resulted in unjust or unreasonable rates, cannot be remedied retroactively, because “[i]t is well established that errors made in the calculation of a utility’s base rates may be remedied only prospectively”).
[¶ 28] One of the philosophical difficulties with a system that prohibits retroactive correction of rates is that it anticipates and tolerates injuries to the system’s participants during the periods of “regulatory lag” — the periods before the Commission is able to declare rates in existence to be unjust or unreasonable and to correct those rates prospectively. See NET I, 354 A.2d at 762; NET II, 362 A.2d at 748. The regulation at issue in this case assumes from the start that implementing the new basic service calling area will result in rates that, in the future, would be determined to be unjust and unreasonable. Accordingly, the regulation calls for a tracking period during which information concerning costs and revenues will be gathered to help the Commission to make a future determination as to what rates would be just and reasonable. Once that information is collected, the Commission and the regulated companies will use it to set new rates for future services that accurately reflect the costs of the new system and which provide enough revenue to ensure an adequate return on investment. See Maine Pub. Advocate v. Public Utils. Comm’n, 476 A.2d at 179. To that extent, the regulation is prospective in nature.
[¶29] Distinctly different from that action, however, is the provision in the BSCA rule that allows the regulated companies to *209recover any losses that might have been incurred during the tracking period by increasing future rates in an amount sufficient to recover the shortfall. In this way, the Commission has attempted prospectively to ameliorate the expected “regulatory lag,” during which either the consumer or the company would have suffered some loss, thereby attempting to solve the philosophical dilemma inherent in our statutory scheme. Such an approach, while a seemingly logical method of assuring just and reasonable rates, is nonetheless “merely an indirect route to retroactive ratemaking.” Id. at 183. Indeed, there is no substantive difference between this regulation and the refund/surcharge provision we declared illegal in NET II,7 where we said:
The purpose of a refund/surcharge provision is to allow a regulatory body to determine after the fact that a certain rate was, when charged, too high or too low, and to adjust it by refund or surcharge. The ultimate result of such adjustment is that the rate charged during a specified period ... will be the rate which, it is later determined, was just and reasonable during that period.
362 A.2d at 757. Like that refund/surcharge provision, the BSCA regulation is an after-the-fact remedy for rates that have now been determined to be unjust or unreasonable— the only difference is that the BSCA regulation is carefully couched in terms designed to portray it as an accounting device rather than a mechanism to equalize revenue.
[¶ 30] Here, the simple reality is that the Commission approved NYNEX’s recovery, through an increase in future rates, of a shortfall of $6 million that was incurred during the two years between implementation of the BSCA rule and the date of the Commission’s final order. In other words, during that two-year period, NYNEX received $6 million less than what was determined at the end of the two year period to be just and reasonable, and the Commission approved a plan to recover that loss by increasing its future rates. This is a classic example of retroactive ratemaking.
[¶ 31] The Court goes awry today in its conclusion that, by announcing in advance its process for retroactive ratemaking, the regulation constitutes a deferred accounting mechanism which is authorized by the Commission’s statutory power to “prescribe the forms of all books, accounts, papers and records required to be kept.” 35-A M.R.S.A. § 502(1) (1988).8 In so doing, the Court has relied on specific decisions from other jurisdictions and has fallen prey to the inconsistent approaches to ratemaking that exist in those jurisdictions. Commenting on the application of the rule in Illinois, one author noted that: *210Stefan H. Krieger, The Ghost of Regulation Past: Current Applications of the Rule Against Retroactive Ratemaking in Public Utility Proceedings, 1991 U. ILL. L. REV. 988, 992 (emphasis added).
*209The [Illinois] cases are good examples of how the courts have had difficulty applying the rule against retroactive ratemaking in a socially beneficial fashion in the modern context. [M]ost courts have applied it in the same manner as the Illinois courts: they pledge fidelity to it but either ignore the rale or develop ad hoc exceptions to it when it stands in the way of the decision they want to make.
*210[¶ 32] Relying on decisions that have announced creative exceptions to the rule, the Court appears to agree that it is not retroactive ratemaking “to defer collection of certain charges until the point at which they become ascertainable, so long as the rate payers have notice that the charges will be collected in the future.” Town of Norwood, Mass. v. Federal Energy Regulation Comm’n, 53 F.3d 377, 383 (D.C.Cir.1995), and that, “the Commission may authorize deferred-accounting treatment for post-in-service costs” because simply “reducing the impact of regulatory lag does not equate to retroactive ratemaking.” Cities for Fair Util. Rates v. Public Util. Comm’n, 884 S.W.2d 540, 550 (Tex.App. 1994).
[¶ 33] I do not find such exercises in semantics to be persuasive. By any other name the accounting practices engaged in here result in rates that are established retroactively. Unfortunately, the Court has now become one of many courts that “while maintaining verbal allegiance to the retroactivity rule, attempt to distinguish it away for a particular set of circumstances.”9 The creation of such an ad hoc exception to the rule will result in uncertainty in its application and leave the parties with little guidance in future disputes.
[¶ 34] The Court appears to have been swayed by the sensibility and logic of allowing utilities to defer recovery of their costs until reliable data is collected, allowing for more accuracy and fairness in ratemaking. Indeed, the BSCA process at issue in this case appears to be a sensible and fair way to deal with the dilemma of regulatory lag. The Public Utilities Commission’s powers, however, are derived wholly from statute, and retroactive ratemaking, even when characterized as an accounting device, is an ultra vires act.
[¶ 35] Thus, the decision whether to allow the Public Utilities Commission to adopt regulations such as the BSCA is not, in my opinion, ours to make. By its decision today, the Court has begun the piecemeal dismantling of the rule against retroactive ratemak-ing in Maine and has delegated to the PUC authority not given to it by the Legislature, thereby opening the door to any retroactive ratemaking which is signalled by advance regulation.
[¶ 36] If the time has come to reexamine the validity and flexibility of the rule, that process should be undertaken by the Legislature. Any decision to eliminate or reduce the prohibition on retroactive ratemaking should be made, not by the Court, but by the Legislature. Until the Legislature acts, our role is not to judge whether the BSCA regulation is a good, sensible, or fair rule, but rather simply to judge whether the Public Utilities Commission has the statutory authority to adopt such a rule.
[¶ 37] Because I conclude that the Commission does not have that authority, I would vacate the orders of the Public Utilities Commission.
. In NET II, the parties attempted to distinguish the planned refund/surcharge provision from retroactive ratemaking by arguing that it was, in fact, prospective in nature, “since both the utility and the public knew, before the amounts later to be refunded or surcharge accrued, that a refund or surcharge could be collected.” 362 A.2d at 753 n. 17. We dismissed that argument in a footnote, see id., and held that even if the provision was prospective in nature, it was still promulgated without the statutory authority to engage in retroactive ratemaking. See id. at 757-58.
. Furthermore, the court ascribes too much importance to the Commission’s emphasis on the fact that the BSCA regulation was intended to be "revenue-neutral” and to operate without effect on investors' rates of return. The fact that the BSCA regulation will not result in any additional net income for the companies that it regulates is irrelevant to a determination of whether it constitutes retroactive ratemaking. Although courts have recognized that one purpose for declining to allow retroactive ratemaking is to prevent a utility "from employing future rates as a means of ensuring the investments of its stockholders,” Narragansett Electric Co. v. Burke, 415 A.2d 177, 179 (R.I.1980) (citing Georgia Ry. & Power Co. v. Railroad Comm’n, 278 F. 242, (D.Ga.1922)), our focus has always been on whether the rate is designed to compensate the company or the customers for a rate that has been in effect and that has been, for whatever reason, declared unjust and unreasonable. See Maine Pub. Advocate v. Public Utils. Comm’n, 476 A.2d at 183.
. Krieger, supra, at 1047.