dissenting.
Notwithstanding some case law from other jurisdictions to the contrary, the conduct of PSI in the matter before us was "under color of state law."
PSI's tariff was not gratuitously filed with IURC. It was required to be filed before it could have force and effect. I.C. 8-1-2-38 (Burns Code Ed.1988); 170 IAC 4-1-29 (1988). The tariff is subject to review, modification,. approval or denial by IURC. When filed, and when the utility, as here, conducts its activities pursuant to the tariff, such conduct is under color of state law.1
In Kadlec v. Illinois Bell Telephone Co. (1969, 7th Cir.) 407 F.2d 624, cert. denied, 396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95, cited by the majority, termination of telephone service was involved. There, the only apparent state connection with the activity rested in the fact that the utility filed its regulations with the state authorities. The court acknowledged that the utility might operate under color of state law where "greater state involvement or control" exists. Id. at 627. Judge Kerner's separate concurrence in Kadlec is even more to the point in observing that "color of state law" will be found where the utility "is subject to close regulation by a statutorily-created body...." Id. at 628 (Kerner, J., concurring). In Indiana there is a great degree of involvement and control by the IURC with reference to the rendering of utility service to captive consumers.
With regard to the issue of exhaustion of administrative remedies, the majority finds *693persuasive significance in the fact that Haggard "failed to seek any review of the Commission's action on [his] letter ... pursuant to L.C. 8-1-2-34.5." (At 691).
It is clear that the Commission had made its determination with reference to the dispute. This position was unmistakably set forth in the October 27, 1987 letter from the Commission. Undoubtedly, any further efforts by Haggard to obtain a reversal of that position would have been futile. A party is not required to pursue further administrative avenues under such cireum-stances. City of Lake Station v. State ex rel. Moore Real Estate, Inc. (1990) Ind., 558 N.E.2d 824; see Wright, Administrative Law, Survey of Recent Developments in Indiana Law, 18 Ind.L.Rev. 37 at 42 (1985).
Although 1.C. 8-1-2-34.5(b) (Burns Code Ed.1988) authorizes the Commission to establish an appeals division, it appears that the IURC has not done so. See 170 IAC 4-1-17 (1988). Accordingly, Haggard, having received the IURC rejection letter of October 27, 1987, had no further remedy available to him within the administrative process.
I would reverse and remand for further proceedings.
. -It has been held that when an entity, such as a utility or public carrier which is closely regulated by the state agency, does not comply with the provisions of an approved tariff, such constitutes a violation of an order of the commission. State ex rel. Evansville City Coach Lines v. Rawlings (1951) 229 Ind. 552, 99 N.E.2d 597.