¶15 Dobson appealed, requesting that the Commissions denial be reversed. We retained the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,215, and 116,422.
STANDARD OF REVIEW
¶16 This Courts review of decisions of the Commission is governed by the Oklahoma Constitution, article 9, § 20, which states as follows, in relevant part:
The Supreme Courts review of appealable orders of the Corporation Commission shall be judicial only, and in all appeals involving an asserted violation of any right of the parties under the Constitution of the United States or the Constitution of the State of Oklahoma, the Court shall exercise its own independent judgment as to both the law and the facts. In all other appeals from orders of the Corporation Commission the review by the Supreme Court shall not extend further than to determine whether the Commission has regularly pursued its authority, and whether the findings and conclusions of the Commission are sustained by the law and substantial evidence.
Okla. Const. art. 9, § 20.
¶17 The issue in this appeal concerns the Commissions legal interpretation of the OUSF statute and the alleged arbitrary and capricious denial of funding in violation of the Oklahoma Constitution. Constitutional implications as well as statutory interpretation dictate our de novo review of this case. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Commn, 2007 OK 55, ¶ 9, n.17, 164 P.3d 150, 156. Under the de novo standard of review, the Court has plenary, independent and non-deferential authority to determine whether the trial tribunal erred in its legal rulings. Cox Oklahoma Telecom, LLC v. State ex rel. Oklahoma Corp. Commn, 2007 OK 55, ¶ 9, n.16, 164 P.3d 150, 156 ; Neil Acquisition v. Wingrod Investment Corp., 1996 OK 125, ¶ 5, 932 P.2d 1100, 1103 ; Fanning v. Brown , 2004 OK 7, ¶ 8, 85 P.3d 841, 845.
¶18 This Court has found that the Commissions power must be exercised only within the confines of its limited jurisdiction as provided by the Oklahoma Constitution and state statute.
Pub. Serv. Co. v. State ex rel. Corp. Commn , 1997 OK 145, ¶ 23, 948 P.2d 713, 717. The Commissions power to regulate is not unfettered. Pub. Serv. Co. v. State ex rel. Corp. Commn , 1996 OK 43, ¶ 21, 918 P.2d 733, 738.
DISCUSSION
¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 access lines are entitled to recover increases in costs as a result of changes to facilities that are required by state or federal law. 17 O.S.Supp.2016, § 139.106(K). It is undisputed that Dobson is an eligible provider under the Act. It is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur an increase in costs. The Act mandates that where changes are required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, and such changes cause an eligible provider to experience an increase in costs, the provider shall recover such cost increases from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis added). We have interpreted the use of the word shall by the Legislature as a legislative mandate equivalent to the term must, requiring interpretation as a command. Minie v. Hudson, 1997 OK 26, ¶ 7, 934 P.2d 1082, 1086. Thus, under the express provisions of the Act, Dobson was entitled to receive reimbursement from the OUSF for these cost increases.
¶20 In support of its decision to deny Dobsons requested funding, the Commissions majority found that Dobson failed to produce sufficient evidence into the record. Despite acknowledging that its Administrator was afforded, and took advantage of, the opportunity to perform a review of the Application, contractors invoices, internal invoices, construction drawings, pre-engineering plans, work orders, plans and maps, timesheets, reimbursement checks, contracts, responses to data requests, relevant Oklahoma Statutes, its own administrative rules regarding the OUSF, the Commission ignored the Administrators finding that the documents provided by Dobson supported its request for funding. The Commission complained that it was limited to a mathematical review as many of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobsons place of business and were not made publicly available due to the confidential nature of the documents.
¶21 Dobson points out that up until the filing of these companion cases, the Commission had for years previously accepted the Administrators review of confidential documents on site. Dobson maintains that they should not be penalized for the Commissions option not to take advantage of the opportunity to review, or even request to review, any of the confidentially-redacted documents. Dobson also cites cases supporting the proposition that long-standing actions or interpretations by an agency will not be idly cast aside without proper notice to affected parties. See, e.g., Oral Roberts Univ. v. Okla. Tax Commn , 1985 OK 97, ¶ 10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing construction where parties having great interest in such construction will be prejudiced by its change); Big Horn Coal Co. v. Temple , 793 F.2d 1165, 1169 (10th Cir. 1986) (Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures.).
¶22 The Administrator agreed with Dobson that the standard procedure followed by the Commission had always been for an applicant to fill out a Commission-approved form and make confidential information supporting its application available for the Commission to review on-site. He offered that this practice occurred not only in OUSF cases, but in numerous other Commission matters. We find the Commission was not entitled to discount Dobsons entire application merely because the documents the Administrator inspected and relied upon for his approval were not publicly filed of record before the Commission.
¶23 Dobson argues, and the Commission does not dispute, that the Commissions own rules and long-standing practices encouraged applicants to retain its confidential supporting materials on site, making such materials available for review and inspection as needed to support an application. In fact, Commission rule, OAC 165:59-3-72(d), specifically contemplates that documentation not contained in the public record and not filed in the cause may nevertheless be relied upon by the OUSF Administrator in approving or denying an application. The Administrator disclosed that the Commission does not even have procedures in place that would allow it to handle the responsibility or liability of receiving such confidential materials.
¶24 Dobson filed an application, completed by using a Commission-issued form, which certified that as a result of an ODOT mandate to relocate its facilities it incurred an increase in costs in the amount of $55,032.54. The company presented the testimony of a company witness who reviewed all of Dobsons pertinent, confidential materials, and who confirmed the validity of the requested amounts. The Administrator also reviewed the confidential materials and agreed that Dobsons application and documentation supported the relief requested, as nominally modified by the Administrator to a lump sum of $54,766.71. The ALJ-although declining to recommend approval-likewise agreed with both the independent witness and the Administrator that Dobsons application and offered materials supported approval thereof. Despite these findings, the Commission unexpectedly faulted Dobson for failing to publicly submit its confidential materials when documents of such a nature have not been typically filed with the Commission, nor required. Such flawed reasoning should not support a denial of the application herein.
¶25 Additionally, for the first time in these companion cases, the Commission interpreted Subsection (K) to impose a finding that Dobsons rates for primary universal services are reasonable and affordable pursuant to Subsection (B) and that the requested funding is necessary to maintain such reasonable and affordable rates. As mentioned, supra, § 139.106(K)(1)(b) plainly provides that where a provider incurs increased costs due to a state law, order or policy, the provider SHALL recover the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a condition that the applicant must prove that its rates are reasonable and affordable nor is there a requirement to find the reimbursement necessary to maintain such rates. To the contrary, § 139.106(K)(2) specifically states that an applications approval shall not be conditioned upon any rate case or earnings investigation by the Commission.
17 O.S.Supp.2016, § 139.106(K)(1)(b). We are not inclined to add requirements to a statute that the Legislature chose not to impose. See Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶ 19, 82 P.3d 587, 591 (It is not the function of the courts to add new provisions which the legislature chose to withhold.); Minie v. Hudson , 1997 OK 26, ¶ 12, 934 P.2d 1082, 1087 (This Court may not, through the use of statutory construction, change, modify or amend the expressed intent of the Legislature.).
¶26 Dobson contends that the Commissions complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose. Generally, applicants who filed under Subsection (K) could expect a quick reimbursement after approval by the Administrator that the application had followed the statutory process. The Commissions in-depth review of a Subsection (K) application would only arise if an outside entity filed a Request for Reconsideration of the Administrators determination. Where no such reconsideration request is filed, the Administrators approval, after a proper statutory review, would typically trigger a Commission order granting the applicants request.
¶27 The Commission also criticized the fact that the relocated lines were used for services not related to primary universal services. The Commission maintains that Dobson should have allocated the cost of the project between such services. Dobson argues that a request for reimbursement under Subsection (K) does not require any such cost allocation nor has the Commission ever required one in previous Subsection (K) matters.
¶28 Subsection (K) plainly provides that where a provider incurs cost increases due to a state law or order, the provider SHALL recover the cost increase from the OUSF. 17 O.S.Supp.2016, § 139.106(K)(1)(b). There is no mention of a requirement for cost allocation and we are not inclined to impose such requirement now. The Commission again ignores the plain language of the Act and attempts to impose new conditions not required by the Act, nor supportive of its purpose.
¶29 Dobson contends that the Commissions complete denial of funding disregards the very purpose of the OUSF to ensure the availability of affordable telephone service to customers in rural and high cost areas where, absent the subsidies, their provision would be cost-prohibitive. We agree. The Commission majoritys disapproval of the policy behind the OUSF legislation has no bearing on the validity of an applicants request for funding. We agree with the dissenting Commissioner that it is our duty to uphold legislation as it is enacted.
CONCLUSION
¶30 Although the Commission is not bound by the Administrators recommendation, we find that the record reflects ample evidence with which to support the Administrators determination. The Administrator, as well as the dissenting Commissioner, both agreed Dobson was entitled to reimbursement of the increased costs it incurred as a result of ODOTs mandate to relocate the telephone lines. The Commissions wholesale denial of Dobsons request was in error. Accordingly, we vacate the order of the Commission and remand the cause for further proceedings consistent with this opinion.
ORDER OF THE OKLAHOMA CORPORATION COMMISSION VACATED AND REMANDED.
CONCUR: GURICH, C.J., KAUGER, WINCHESTER, EDMONDSON, and DARBY, JJ.
CONCURRING SPECIALLY (by separate writing): COMBS, J.
NOT PARTICIPATING: COLBERT, AND REIF, JJ.
The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has:
the power and authority and [is] charged with the duty of supervising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, alter or amend.
Subsection 139.106(K) of the Act provides in toto:
K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following:
a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange telecommunications service provider shall recover the decreases in revenues from the OUSF,
b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, or
c. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduction in costs. 2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service provider.
17 O.S.Supp.2016, § 139.106(K).
The ALJ likewise believed that Dobson was an eligible provider who had provided sufficient documentation to receive OUSF funding. Nevertheless, the ALJ deferred to the Commission rulings in the prior companion cases and recommended denial of the requested funds.