NO. 4-04-0911

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE APPLETON delivered the opinion of the court:

In 2004, in administrative rule-making proceedings, theIllinois Commerce Commission (Commission) adopted a rule entitled"Wholesale Service Quality for Telecommunication Carriers" (83Ill. Adm. Code pt. 731 (2004), as adopted at 28 Ill. Reg. 12083(eff. September 1, 2004)). In this new rule, the Commissionregulates a type of wholesale telecommunications service called"special access." 83 Ill. Adm. Code §731.310 (2004), as adoptedat 28 Ill. Reg. 12083, 12101-02 (eff. September 1, 2004). Petitioner, Illinois Bell Telephone Company, appeals on twogrounds. First, the statute from which the Commission claims toderive its regulatory authority, section 13-712(g) of the PublicUtilities Act (Act) (220 ILCS 5/13-712(g) (West 2004)), confersno authority to regulate special access. Second, by classifyingtelecommunications carriers into four levels (83 Ill. Adm. Code§731.110 (2004), as adopted at 28 Ill. Reg. 12083, 12095-96 (eff.September 1, 2004)) and regulating only the special accessprovided by "Level 1 carriers" (83 Ill. Adm. Code §731.310(2004), as adopted at 28 Ill. Reg. 12083, 12101-02 (eff. September 1, 2004)), the Commission violates section 13-712(a) of theAct (220 ILCS 5/13-712(a) (West 2004)).

We find section 13-712(g) to be ambiguous on thequestion of whether the Commission has authority to regulatespecial access. Because the legislature has charged the Commission with the task of administering and enforcing section 13-712,we defer to the Commission's interpretation of subsection (g), aninterpretation we find to be reasonable. As for petitioner'ssecond contention, the Commission's four-tiered classification ofcarriers does not offend section 13-712(a). On its face, subsection (a) applies to "basic local exchange service," not specialaccess. 220 ILCS 5/13-712(a) (West 2004). Therefore, we affirmthe denial of petitioner's application for rehearing, and weuphold the challenged rule. See 220 ILCS 5/10-201(e)(v) (West2004).

I. BACKGROUND

Petitioner is a "local exchange carrier." A "carrier"is a provider of "telecommunications services between pointswithin the State which are specified by the user." 220 ILCS5/13-202 (West 2004). A "local exchange carrier" provides local,"switched" telephone service. 220 ILCS 5/13-204, 13-206 (West2004). A "switch" is a computer that routes calls to theirdestination. An "exchange" is the geographical area--usually acity, town, or village--in which calls are deemed local under the"tariff," or schedule of rates, of the carrier. 220 ILCS 5/13-204, 13-206 (West 2004). (Long-distance or "interexchangetelecommunications service" is service between two or moreexchanges. 220 ILCS 5/13-205 (West 2004).)

Respondents are the Commission and an alliance ofwireless carriers, the Wireless Coalition. From the standpointof a wireless carrier, wireless telecommunication is not entirelywireless. When someone makes a call on a cellular (cell) phone--whether it be a local, toll, or long-distance call--the wirelesscarrier receives the signal at a cell site (an antenna mounted ona tall structure such as a tower or building) and then transmitsthe signal, at high speed, to the wireless carrier's switch. Totransmit the signal from its cell site to its switch, the wireless carrier uses special-access circuitry maintained by a localexchange carrier such as petitioner.

Special access differs from basic local exchangeservice in two ways. First, special access does not pass throughthe switches of the local exchange carrier; instead, it uses "adedicated non-switched transmission path" to reach the switch ofthe wireless carrier. 83 Ill. Adm. Code §731.105, as adopted at28 Ill. Reg. 12083, 12095 (eff. September 1, 2004) (definition of"wholesale special access"); cf. 220 ILCS 5/13-204 (West 2004)(defining "local exchange telecommunications service" as"switched telecommunications services"). Second (and thisdistinction is perhaps just another aspect of the first), specialaccess enables telecommunications to travel outside rather thaninside the local exchange--or "carrier[]to[]carrier" as the ruleputs it (83 Ill. Adm. Code §731.105 (2004), as adopted at 28 Ill.Reg. 12083, 12095 (eff. September 1, 2004) (definition of "wholesale special access")). Thus, special access can never be basiclocal exchange service, the very purpose of special access beingto bypass the local exchange.

Although wireless carriers bypass the local exchange,they cannot bypass the local exchange carrier. They depend onthe special access that the local exchange carrier provides. Tothe extent that special access fails, the wireless service fails,resulting in dropped calls, an inability to make or receivecalls, and poor call quality.

After workshops with industry stakeholders, evidentiaryhearings, and briefing, the Commission found a need to regulatethe quality of special access. Several witnesses from wirelesscarriers testified that local exchange carriers provided poorwholesale special access and thereby impaired their companies'ability to compete. The Commission found these witnesses to becredible.

In Illinois, the Commission found, the vast majority ofspecial access came from three local exchange carriers: petitioner; Verizon North, Inc.; and Verizon South, Inc. (we willcall the latter two "Verizon," collectively). The rule dividescarriers into four levels on the basis of differing size andcharacteristics (83 Ill. Adm. Code §731.110 (2004), as adopted at28 Ill. Reg. 12083, 12095-96 (eff. September 1, 2004)) andregulates special access provided by "Level 1 carriers," i.e.,those with 400,000 or more access lines (83 Ill. Adm. Code§731.310 (2004), as adopted at 28 Ill. Reg. 12083, 12101-02 (eff.September 1, 2004)), but not special access provided by the(smaller) carriers in the remaining three levels. Petitioner andVerizon are the only two carriers in Illinois that meet thedescription of a "Level 1 carrier," and therefore they are theonly ones whose special-access services the Commission regulates.

On August 4, 2004, having received a certification ofno objection from the Joint Committee on Administrative Rules(JCAR), the Commission adopted the rule over petitioner's objection. Petitioner filed an application for rehearing, arguing, asit did before JCAR, that the Commission lacked jurisdiction toregulate special access. The Commission denied the applicationon September 22, 2004. This appeal followed. See 220 ILCS 5/10-201(a) (West 2004).

II. ANALYSIS

A. Standard of Review

In this appeal, petitioner does not challenge theCommission's factual findings or its evidentiary basis foradopting the rule. Instead, this appeal presents two narrowissues, both of which require nothing more than statutory construction. First, does section 13-712(g) of the Act empower theCommission to regulate special access? Second, does section 13-712(a) allow the Commission to limit its regulation of specialaccess to that provided by "Level 1 carriers"?

As a creature of statute, an administrative agency suchas the Commission has only the powers that the statute confers. People ex rel. Kilquist v. Brown, 203 Ill. App. 3d 957, 961, 561N.E.2d 234, 237 (1990). An agency may adopt a rule and regulatean activity only insomuch as a statute empowers the agency to doso. Popejoy v. Zagel, 115 Ill. App. 3d 9, 11, 449 N.E.2d 1373,1374 (1983). An administrative rule unauthorized by statute isinvalid, and we must strike it down. Illinois RSA No. 3, Inc. v.Department of Central Management Services, 348 Ill. App. 3d 72,76, 809 N.E.2d 137, 140 (2004); 220 ILCS 5/10-201(e)(iv)(B), (C)(West 2004).

Because the meaning of a statute is a question of law,we generally construe statutes de novo. Quad Cities Open, Inc.v. City of Silvis, 208 Ill. 2d 498, 508, 804 N.E.2d 499, 505(2004). We say "generally" because if the legislature hascharged an agency with administering and enforcing a statute, we"will give substantial weight and deference" to the agency'sresolution of any ambiguities in that statute--even if theambiguity concerns the extent of the agency's jurisdiction underthat statute. Illinois Consolidated Telephone Co. v. IllinoisCommerce Comm'n, 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300 (1983). In Illinois Consolidated Telephone Co., 95 Ill. 2d at 145-46, 447N.E.2d at 296, for instance, the issue was whether the definitionof "public utility" in section 10.3(b) of the Act (Ill. Rev.Stat. 1979, ch. 111 2/3, par. 10.3(b)) gave the Commissionauthority to regulate radio paging. On appeal, the Commissioninterpreted section 10.3(b) to exclude radio paging (IllinoisConsolidated Telephone Co., 95 Ill. 2d at 145, 447 N.E.2d at296), and the supreme court deferred to that interpretation(Illinois Consolidated Telephone Co., 95 Ill. 2d at 152, 447N.E.2d at 299-300). The court said: "In reaching the judgmentthat [the radio-paging company] was not a [']public utility[']and was not within the jurisdiction of the Commission, we haveconsidered and given weight to the interpretation the Commissiongives to the *** Act." Illinois Consolidated Telephone Co., 95Ill. 2d at 152, 447 N.E.2d at 299-300. As the court made clearin that case, "'the general principle of judicial deference toadministrative interpretation applies in full strength where suchinterpretation involves resolution of jurisdictional questions.'" Illinois Consolidated Telephone Co., 95 Ill. 2d at 152-53, 447N.E.2d at 300, quoting Pan American World Airways, Inc. v. CivilAeronautics Board, 392 F.2d 483, 496 (D.C. Cir. 1968); see alsoMississippi Power & Light Co. v. Mississippi ex rel. Moore, 487U.S. 354, 381, 101 L. Ed. 2d 322, 344, 108 S. Ct. 2428, 2444(1988) (Scalia, J., concurring).

Thus, if reasonable readers of a statute could differover the extent of the regulatory authority it confers, we deferto the agency's interpretation if the interpretation is defensible. That rule holds true even if the agency only recentlyarrived at the interpretation. Illinois Consolidated TelephoneCo., 95 Ill. 2d at 154, 447 N.E.2d at 300-01. The longer anagency has adhered to an interpretation of the statute, the moreweight the interpretation deserves; but consistency and durationare not prerequisites to our duty of deference. Illinois Consolidated Telephone Co., 95 Ill. 2d at 153-54, 447 N.E.2d at 300.

Ambiguity is, however, a prerequisite: the statutemust be ambiguous. Boaden v. Department of Law Enforcement, 171Ill. 2d 230, 239, 664 N.E.2d 61, 65 (1996) ("As we find that thestatute is not ambiguous, we decline to defer to the [agency's]interpretation"). If the legislative intent is clear, "that isthe end of the matter." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 81 L. Ed. 2d694, 703, 104 S. Ct. 2778, 2781 (1984). But if the statute isambiguous--if reasonably well-informed persons could understandit in more than one sense (People ex rel. Birkett v. City ofChicago, 202 Ill. 2d 36, 46, 779 N.E.2d 875, 881 (2002))--"thecourt does not simply impose its own construction on the statute,as would be necessary in the absence of an administrative interpretation. Rather, *** the question for the court is whether theagency's answer is based on a permissible construction of thestatute." Chevron, 467 U.S. at 843, 81 L. Ed. 2d at 703, 104 S.Ct. at 2782. "A court will not substitute its own constructionof a statutory provision for a reasonable interpretation adoptedby the agency charged with the statute's administration." Churchv. State, 164 Ill. 2d 153, 162, 646 N.E.2d 572, 577 (1995),citing Chevron, 467 U.S. at 842-45, 81 L. Ed. 2d at 702-04, 104S. Ct. at 2781-83.

The Commission's interpretation of section 13-712 doesnot "bind" us in the sense that we must accept it unconditionally, regardless of its reasonableness (see Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 97-98, 606 N.E.2d 1111, 1121-22 (1992)), but if the Commission'sinterpretation is a permissible one, the fact that we ourselvesmight have interpreted the statute differently will not justifyreversal (Church, 164 Ill. 2d at 162, 646 N.E.2d at 577; Chevron,467 U.S. at 843-44, 81 L. Ed. 2d at 703, 104 S. Ct. at 2782).

B. The Scope of "Carrier[-]to[-]Carrier Wholesale Service"

Section 13-712 of the Act reads as follows:

"§13-712. Basic local exchange servicequality; customer credits.

(a) It is the intent of the GeneralAssembly that every telecommunications carrier meet minimum service quality standardsin providing basic local exchange service ona non-discriminatory basis to all classes ofcustomers.

(b) Definitions:

***

(2) 'Basic local exchangeservice' means residential andbusiness lines used for [']localexchange telecommunications service['] as defined in [s]ection 13-204 of this Act [(220 ILCS 5/13-204(West 2004))] ***.

***

(c) The Commission shall promulgateservice quality rules for basic local exchange service ***. ***

(d) The rules shall, at a minimum, require each telecommunications carrier to doall of the following:

(1) Install basic local exchange service within 5 businessdays after receipt of an order fromthe customer ***. *** A telecommunications carrier offering basiclocal exchange service utilizingthe network or network elements ofanother carrier shall install newlines for basic local exchangeservice within 3 business daysafter provisioning of the line orlines by the carrier whose networkor network elements are being utilized is complete. ***

(2) Restore basic local exchange service for a customerwithin 24 hours of receiving noticethat a customer is out of service. ***

(3) Keep all repair and installation appointments for basiclocal exchange service ***.

(4) Inform a customer when arepair or installation appointmentrequires the customer to be present.

(e) The rules shall include provisionsfor customers to be credited by the telecommunications carrier for violations of basiclocal exchange service quality standards ***. *** At a minimum, the rules shall includethe following:

(1) If a carrier fails torepair an out-of-service conditionfor basic local exchange servicewithin 24 hours, the carrier shallprovide a credit to the customer. ***

(2) If a carrier fails toinstall basic local exchange service as required under subdivision(d)(1), the carrier shall waive 50%of any installation charges ***. ***

(3) If a carrier fails to keepa scheduled repair or installationappointment when a customer premises visit requires a customer tobe present, the carrier shallcredit the customer $50 per missedappointment. ***

(4) If a violation of a basiclocal exchange service qualitystandard is caused by a carrierother than the carrier providingretail service to the customer, thecarrier providing retail service tothe customer shall credit the customer as provided in this[s]ection. The carrier causing theviolation shall reimburse the carrier providing retail service theamount credited the customer. Whenapplicable, an interconnectionagreement shall govern compensationbetween the carrier causing theviolation, in whole or in part, andthe retail carrier providing thecredit to the customer.

* * *

(f) Therules shall require each telecommunicationscarrier to provide to the Commission, on aquarterly basis and in a form suitable forposting on the Commission's website, a publicreport that includes performance data forbasic local exchange service quality of service. ***

(g) The Commission shall establish andimplement carrier[-]to[-]carrier wholesaleservice quality rules and establish remediesto ensure enforcement of the rules." 220ILCS 5/13-712 (West 2004).

Respondents reason that because special access is a"carrier[-]to[-]carrier wholesale service," section 13-712(g), byits plain terms, empowers the Commission to regulate specialaccess. Petitioner complains that respondents are liftingsubsection (g) out of its context. According to petitioner, thetitle of section 13-712 and the declaration of intent in subsection (a) make clear that by "carrier[-]to[-]carrier wholesaleservice," the legislature did not mean all carrier-to-carrierwholesale service (including special access) but only that usedto provide basic local exchange service.

Petitioner offers a reasonable interpretation ofsection 13-712(g). The heading of section 13-712--"Basic localexchange service; customer credits"--is part of the statute thatthe General Assembly enacted, and we should give it some consideration when resolving ambiguities in the text. See Hansen v.Caring Professionals, Inc., 286 Ill. App. 3d 797, 805, 676 N.E.2d1349, 1354 (1997). Interpreting a statute as a whole meansinterpreting a specific provision in the context of other partsof the statute, including the heading under which the provisionappears. People v. Warren, 173 Ill. 2d 348, 357, 671 N.E.2d 700,705 (1996). Special access is, as we have explained, fundamentally different from basic local exchange service, and is animportant service in the telecommunications industry: theefficient functioning of wireless telecommunications depends onit. Therefore, it could strike one as strange that the legislature would provide for the regulation of special access in asection ostensibly devoted to basic local exchange service.

Arguably, the heading of section 13-712 is indeed afaithful guide to the meaning of subsection (g) because, subsection by subsection, section 13-712 explicitly pertains to basiclocal exchange service--until we reach subsection (g). Instatutes and other forms of discourse, people rely on context totacitly limit the scope of statements that, taken in isolation,would be too broad. R. Dickerson, Interpretation & Applicationof Statutes 200-01 (1975). Even though subsection (g) does notexplicitly refer to basic local exchange service, one couldreasonably infer that subsection (g) continues the thought insubsections (d)(1) and (e)(4). In those subsections, the statuterefers to two carriers: Carrier No. 1, which provides basiclocal exchange service to retail customers, and Carrier No. 2,which provides wholesale service to Carrier No. 1--i.e., letsCarrier No. 1 use its "network"--so that Carrier No. 1 can inturn provide the basic local exchange service. 220 ILCS 5/13-712(d)(1), (e)(4) (West 2004). The legislature intended that"every telecommunications carrier meet minimum service qualitystandards in providing basic local exchange service." (Emphasisadded.) 220 ILCS 5/13-712(a) (West 2004). In subsections (d)(1)and (e)(4), the legislature recognized that inefficient carrier-to-carrier service on the wholesale level could lead to inefficient basic local exchange service on the retail level andthereby frustrate the legislative intent in subsection (a). Onecould fairly read subsection (g) with the tacit assumption thatthe only type of "carrier[-]to[-]carrier wholesale service" thelegislature had in mind, in this context, was wholesale serviceused to provide basic local exchange service--since, after all,basic local exchange service does appear to be what section 13-712 is about.

As respondents argue, however, the problem with solimiting subsection (g) is the limitation has no basis in thelanguage of subsection (g) itself. Contrary to petitioner'srepeated assertion in its brief, the legislature did not "expressly limit" subsection (g) to wholesale service used toprovide basic local exchange service; rather, petitioner infersthat limitation from other parts of section 13-712. "If themeaning of any particular phrase or section[,] standing alone[,]is clear[,] no other section or part of the act may be applied tocreate doubt." 2A N. Singer, Sutherland on Statutory Construction §47:02, at 211 (6th ed. 2000). The meaning of subsection(g), standing alone, is crystal-clear. It says: "The Commissionshall establish and implement carrier[-]to[-]carrier wholesaleservice quality rules ***." 220 ILCS 5/13-712(g) (West 2004). Special access is indisputably a carrier-to-carrier wholesaleservice. Reading a provision in context does not give one alicense to disregard the clear language of the provision itself. Statutes are highly deliberative utterances (section 13-712certainly appears to be, with its definitions, sub-definitions,and exceptions). Thus, we should normally assume that wheneverthe legislature intended a limitation, it expressed that limitation; conversely, if the limitation is absent from the text, thelegislature presumably did not intend the limitation. Theutility of statutes depends on the reader's being able to rely onthe plain meaning of the text.

Petitioner relies on context, but so do respondents. Subsections (d)(1) and (e)(4) demonstrate that the legislatureknew how to use the term "basic local exchange service" inconjunction with a discussion of carrier-to-carrier wholesaleservice. 220 ILCS 5/13-712(d)(1), (e)(4) (West 2004). Thelegislature did not use that term in subsection (g)--an omissionone could consider to be significant. 220 ILCS 5/13-712(g) (West2004). "[If] the legislature uses certain words in one instanceand different words in another, it intends different results." Divane v. Smith, 332 Ill. App. 3d 548, 553, 774 N.E.2d 361, 365(2002). Unless an improbably absurd construction results, weshould be reluctant to second-guess the plain, unqualifiedlanguage of a statutory provision (In re D.D., 196 Ill. 2d 405,418-19, 752 N.E.2d 1112, 1120 (2001)), especially if, elsewherein the statute, the legislature demonstrates an ability to statethe qualification (In re Perona, 294 Ill. App. 3d 755, 760, 690N.E.2d 1058, 1062 (1998); Community Unit School District 200 v.Illinois Insurance Guaranty Fund, 358 Ill. App. 3d 1056, 1063,832 N.E.2d 472, 479 (2005)).

We do not find it improbable that the legislatureintended the Commission to regulate all "carrier[-]to[-]carrierwholesale service." Arguably, it is improbable that the legislature used that term without realizing what it entailed. Thelegislature could have decided that while regulating wholesaleservice used to provide basic local exchange service, the Commission might as well regulate wholesale special access, too, sincemany consumers use cell phones to make local calls and one of thepurposes of article 13 of the Act is to enhance the quality of"telecommunications services" in general (220 ILCS 5/13-103(a)(West 2004)). This is not to equate basic local exchange servicewith wireless local calls but merely to point out that if thelegislature cared about one, it probably was not indifferent tothe other. "Statutes must be construed in the most beneficialway which their language will permit so as to prevent hardship orinjustice, and to oppose prejudice to public interests." Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303, 313, 527N.E.2d 1264, 1269 (1988).

Although one might have thought that the topic ofspecial access deserved a heading and section of its own, caselaw warns against putting undue emphasis on such organizationaldevices. Headings cannot "'limit the plain meaning of thetext.'" Michigan Avenue National Bank v. County of Cook, 191Ill. 2d 493, 505-06, 732 N.E.2d 528, 536 (2000), quoting Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519,529, 91 L. Ed. 1646, 1652, 67 S. Ct. 1387, 1392 (1947); see also73 Am. Jur. 2d Statutes §45 (2001). If a general statutoryprovision and a specific statutory provision relate to the samesubject, the specific provision prevails. People v. Botruff, 212Ill. 2d 166, 175, 817 N.E.2d 463, 468 (2004). "As a rule[,] thewords of the heading[,] being more general[,] will not controlthe more specific words of the act ***." 2A N. Singer, Sutherland on Statutory Construction §47:14, at 256 (6th ed. 2000).

Not only are headings "mere catchwords" (2A N. Singer,Sutherland on Statutory Construction §47:14, at 256-57 (6th ed.2000); see also Michigan Avenue National Bank, 191 Ill. 2d at506, 732 N.E.2d at 536), but as catchwords, they tend not to berigorously complete summaries of everything in the substantivetext (see E. Crawford, Construction of Statutes §207, at 360(1940) (noting that headings have a "probability of inaccuracy"). The United States Supreme Court has explained:

"[H]eadings and titles are not meant to takethe place of the detailed provisions of thetext. Nor are they necessarily designed tobe a reference guide or a synopsis. Wherethe text is complicated and prolific, headings and titles can do no more than indicatethe provisions in a most general manner; toattempt to refer to each specific provisionwould often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the generalpattern are frequently unreflected in theheadings and titles." Brotherhood of R.R.Trainmen, 331 U.S. at 528, 91 L. Ed. at 1652,67 S. Ct. at 1392.

In summary, good arguments can be made for and againstthe opposing interpretations of section 13-712(g) in this case. The parties cite cases interpreting other statutes. Because thestatutes in those cases bear little resemblance to the Act, we donot find those cases to be very relevant except for the canons ofstatutory construction which they invoke and which we haveapplied to section 13-712. Depending on the canons one choosesand how one deploys them, one could agree with either petitioneror respondents. Our duty, then, is clear: we defer to theCommission's interpretation. See Church, 164 Ill. 2d at 162, 646N.E.2d at 577.

C. Regulation of Only Some Providers of Wholesale Special Access

Petitioner contends that by regulating only the specialaccess provided by "Level 1 carriers," the Commission violatessection 13-712(a) of the Act. That subsection provides: "It isthe intent of the General Assembly that every telecommunicationscarrier meet minimum service quality standards in providing basiclocal exchange service on a non-discriminatory basis to allclasses of customers." (Emphasis added.) 220 ILCS 5/13-712(a)(West 2004). In subsection (a), the General Assembly neverdeclared an intent that every telecommunications carrier meetminimum service quality standards in providing special access. Therefore, regulating special access provided only by "Level 1carriers" does not violate subsection (a).

III. CONCLUSION

For the foregoing reasons, we affirm the denial ofpetitioner's application for rehearing, and we uphold part 731 ofTitle 83 of the Illinois Administrative Code.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.