CO Code § 40-6-109 (2021)
2021 Colorado Code|Title 40 - Utilities|Article 6 - Hearings and Investigations|§ 40-6-109. Hearings - Orders - Record - Review - Representation of Entities in Nonadjudicatory Proceedings

  At the time fixed for any hearing before the commission, any commissioner, or an administrative law judge, or, at the time to which the same may have been continued, the applicant, petitioner, complainant, the person, firm, or corporation complained of, and such persons, firms, or corporations as the commission may allow to intervene and such persons, firms, or corporations as will be interested in or affected by any order that may be made by the commission in such proceeding and who shall have become parties to the proceeding shall be entitled to be heard, examine and cross-examine witnesses, and introduce evidence. A full and complete record of all proceedings had before the commission, any commissioner, or an administrative law judge in any formal hearing and all testimony shall be taken down by any reporter appointed by the commission or, as deemed appropriate by the commission, a commissioner, or an administrative law judge, as applicable, recorded electronically. All parties in interest shall be entitled to be heard in person or by attorney.    Whenever any hearing, investigation, or other proceeding is assigned to an administrative law judge or individual commissioner for hearing, the administrative law judge or individual commissioner, after the conclusion of said hearing, shall promptly transmit to the commission the record and exhibits of said proceeding together with a written recommended decision which shall contain his findings of fact and conclusions thereon, together with the recommended order or requirement. Copies thereof shall be served upon the parties, who may file exceptions thereto; but if no exceptions are filed within twenty days after service upon the parties, or within such extended period of time as the commission may authorize in writing (copies of any such extension to be served upon the parties), or unless such decision is stayed within such time by the commission upon its own motion, such recommended decision shall become the decision of the commission and subject to the provisions of section 40-6-115. The commission upon its own motion may and where exceptions are filed shall reconsider the matter, either upon the same record or after further hearing, and such recommended decision shall thereupon be stayed or postponed pending final determination thereof by the commission. The commission may adopt, reject, or modify the findings of fact and conclusions of such individual commissioner or administrative law judge or, after examination of the record of any such proceeding, enter its decision and order therein without regard to the findings of fact and conclusions of any individual commissioner or administrative law judge. Any commissioner to whom a proceeding may be so assigned shall not be disabled thereby from participating with the commission in the final decision.    After the conclusion of any hearing, investigation, or proceeding before the commission, the commission shall make and file its decision. The decision shall be a report in writing in which the commission shall state its findings of fact and conclusions thereon together with its order or requirement. The decision, under the seal of the commission, shall be served upon all parties and made available to all participants in the proceeding.    Unless otherwise provided in this title, all decisions of the commission shall become effective upon a day to be fixed by the commission in any such decision and shall continue in force either for a period which may be designated therein or until changed or abrogated by the commission. Decisions containing negative orders shall be effective on the date of entry thereof, unless otherwise provided in any such decision. If an order or requirement cannot, in the judgment of the commission, be complied with within the time prescribed therein, the commission, on application made within such time and for good cause shown, may extend the time for compliance fixed in its decision.    The commission may by general rule or regulation provide for the taking of evidence in uncontested or unopposed proceedings by affidavit or otherwise, without the necessity of a formal oral hearing. Such shortened or informal proceedings shall otherwise be subject to all of the provisions of this title. Upon its own motion the commission may and upon request of a party timely made the commission shall assign any such uncontested or unopposed proceeding for hearing.    The commission may make the initial decision in cases where it has not presided at the taking of evidence, and the recommended decision of the individual commissioner or administrative law judge may be omitted in any case in which the commission finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires.    The commission may by general rule or regulation provide for appearances pro se by, or for representation by authorized officers or regular employees of, the commission's staff, corporations, partnerships, limited liability companies, sole proprietorships, and other legal entities in certain nonadjudicatory matters before the commission.     History. Source: L. 13: P. 494, § 46. C.L. § 2955. CSA: C. 137, § 46. L. 45: P. 529, § 7. CRS 53: § 115-6-9. C.R.S. 1963: § 115-6-9. L. 69: P. 944, § 41. L. 89: (1), (2), and (4) to (6) amended, p. 1530, § 13, effective April 12. L. 93: (7) added, p. 2064, § 18, effective July 1. L. 2008: (3) amended, p. 1796, § 15, effective July 1. L. 2009: (1) amended,(HB 09-1118), ch. 130, p. 563, § 12, effective August 5. History. Source: L. 13: P. 494, § 46. C.L. § 2955. CSA: C. 137, § 46. L. 45: P. 529, § 7. CRS 53: § 115-6-9. C.R.S. 1963: § 115-6-9. L. 69: P. 944, § 41. L. 89: (1), (2), and (4) to (6) amended, p. 1530, § 13, effective April 12. L. 93: (7) added, p. 2064, § 18, effective July 1. L. 2008: (3) amended, p. 1796, § 15, effective July 1. L. 2009: (1) amended,(HB 09-1118), ch. 130, p. 563, § 12, effective August 5.    ANNOTATION   Law reviews. For note, “Right of Cross-Examination Before Administrative Agencies in Colorado”, see 29 Dicta 446 (1952). For note, “The Right to Cross-Examine Adverse Witnesses as a Part of Due Process in Hearings Before Colorado Agencies”, see 31 Dicta 383 (1954).   Only the public utilities commission (PUC) has authority to interpret existing carrier permits to determine the territory included thereunder, which determination, if deemed erroneous, may be reviewed by the courts. Lane v. Pub. Utils. Comm'n, 152 Colo. 335 , 381 P.2d 818 (1963).   A carrier desiring an interpretation of its authority may seek a hearing before the commission. Lane v. Pub. Utils. Comm'n, 152 Colo. 335 , 381 P.2d 818 (1963).   Carrier may apply to the courts for review. If a carrier considers the PUC's interpretation of its authority under its certificate to be erroneous, it may apply to the courts to review the ruling. Lane v. Pub. Utils. Comm'n, 152 Colo. 335 , 381 P.2d 818 (1963).   Courts are limited to affirming or reversing. In a proceeding to review a decision of the PUC, the courts are limited to affirming or reversing such decision and have no authority to make new findings. Pub. Utils. Comm'n v. Colo. Interstate Gas Co., 142 Colo. 361 , 351 P.2d 241 (1960).   Review of PUC decisions by the courts is restricted to review on a record as made before the PUC and is further limited by § 40-6-115 . Colo. Transp. Co. v. Pub. Utils. Comm'n, 141 Colo. 203 , 347 P.2d 505 (1959).   In providing for “hearings”, the general assembly contemplated proceedings, judicial in character, with participation by all parties who might be interested in or affected by any order that may be made by the PUC. Pub. Utils. Comm'n v. Northwest Water Corp., 168 Colo. 154 , 451 P.2d 266 (1969).   This section gives the right to a full hearing, and confers the privilege of introducing testimony, and at the same time imposes the duty of deciding in accordance with the facts proved. A finding without evidence is arbitrary and baseless. Consolidated Freightways Corp. v. Pub. Utils. Comm'n, 158 Colo. 239 , 406 P.2d 83 (1965).   A decision which is not grounded on evidence fails to apply the standard of “full hearing” set by congress as a guide to the commission in the performance of its quasi-judicial duties. Consolidated Freightways Corp. v. Pub. Utils. Comm'n, 158 Colo. 239 , 406 P.2d 83 (1965).   Abbreviated hearing procedure permitted. Where the commission believes that an economic emergency may exist, and it may permit new rates to become effective without a hearing, participatory values are better served by allowing the commission to conduct a hearing with abbreviated procedures and a limitation on the issues to be considered. Pub. Serv. Co. v. Pub. Utils. Comm'n, 653 P.2d 1117 (Colo. 1982).   Findings must be made. This is a statutory mandate. Wells Fargo Armored Serv. Corp. v. Pub. Utils. Comm'n, 190 Colo. 204 , 545 P.2d 707 (1976).   While findings of the PUC which are supported by the evidence may not be set aside, findings of the commission not supported by evidence cannot be upheld on appeal. J.C. Trucking v. P.U.C., 776 P.2d 366 (Colo. 1989).   The essential findings are that there is a need for this additional service and that economic feasibility will not be lost by the granting of the application. Wells Fargo Armored Serv. Corp. v. Pub. Utils. Comm'n, 190 Colo. 204 , 545 P.2d 707 (1976).   This section contemplates two types of intervenors, (a) those which the commission may permit to intervene, and (b) those who will be interested in or affected by any order that the commission may make. DeLue v. Pub. Utils. Comm'n, 169 Colo. 159 , 454 P.2d 939, cert. denied, 396 U.S. 956, 90 S. Ct. 428, 24 L. Ed. 2d 421 (1969).   Two classes may participate: Those who may intervene as of right; and those whom the PUC permits to intervene. RAM Broad. of Colo. v. Pub. Utils. Comm'n, 702 P.2d 746 (Colo. 1985); Pub. Serv. Co. of Colo. v. Trigen-Nations Energy Co., 982 P.2d 316 (Colo. 1999).   Potential competitors of applicant who were not currently serving applicant's customers were not entitled to intervene in proceeding under “by-pass” statute and thereby gain access to information, including prospective customers' names, contained in application. Pub. Serv. Co. of Colo. v. Trigen-Nations Energy Co., 982 P.2d 316 (Colo. 1999).   Competitor limousine service's interest in its own certificate of public convenience and in providing the limousine service thereby authorized in such manner as to adequately serve the public convenience and necessity satisfies the requirements of this section. Yellow Cab Coop. Ass'n v. Pub. Utils. Comm'n, 869 P.2d 545 (Colo. 1994).   Whether PUC “regularly pursued its authority” pursuant to § 24-4-106 (7) depends on several factors, including whether the decision is based on evidence introduced at evidence-gathering stage of process, the PUC order is supported by findings of fact, the PUC supplied legislative standards guiding its decision-making function, and the PUC acted within authority conferred on it. Home Builders Ass'n v. Pub. Utils. Comm'n, 720 P.2d 552 (Colo. 1986).   Applied in City of Loveland v. Pub. Utils. Comm'n, 195 Colo. 298 , 580 P.2d 381 (1978); Caldwell v. Pub. Utils. Comm'n, 200 Colo. 134 , 613 P.2d 328 (1980); Cottrell v. City & County of Denver, 636 P.2d 703 (Colo. 1981); Caldwell v. Pub. Utils. Comm'n, 692 P.2d 1085 (Colo. 1984).