CPS Energy, Time Warner Cable Texas LLC, and Southwestern Bell Telephone Company D/B/A AT&T// Public Utility Commission of Texas v. Public Utility Commission of Texas// Cross-Appellee, CPS Energy, Time Warner Cable Texas LLC and Southwestern Bell Telephone Company D/B/A AT&T, 03-14-00340-CV

Background

The Public Utility Commission of Texas (PUC) issued an advisory opinion about whether later FCC rule amendments are incorporated into Texas Utilities Code §54.204(c); the advisory statement arose after an ongoing enforcement proceeding by CPS Energy.
The FCC amended pole-attachment rules effective June 8, 2011, excluding depreciation, taxes, and rate of return from attachment-fee calculations, substantially lowering maximum rates.
CPS Energy’s enforcement action concerned maximum pole-attachment rates for test years 2005–2009 (pre-dating the FCC amendments); litigation ran from Jan. 2009 to Feb. 2013, and the FCC changes became effective during that litigation.
The ALJ certified the legal question whether §54.204(c) incorporates FCC rule revisions adopted after Sept. 1, 2006 and when such revisions become applicable; the PUC answered that the statute’s plain language incorporates FCC revisions.
The PUC now asks the Court of Appeals to decline to adjudicate the certified-question issue for lack of subject-matter jurisdiction because the PUC’s statement is an advisory opinion about future enforcement and the question is not ripe.
Alternatively, the PUC argues that if the court reaches the merits, the Commission correctly interpreted §54.204(c) to incorporate FCC revisions and to apply them prospectively.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction to review the PUC’s statement on FCC rule incorporation (advisory opinion)	CPS Energy treats the PUC’s order as reviewable on the merits	PUC: order is advisory, unripe, and thus not reviewable for lack of subject-matter jurisdiction	PUC contends the court lacks jurisdiction because the statement is advisory and not ripe; if reached, merits favor PUC’s interpretation
Whether the PUC, an executive agency, may issue advisory opinions	CPS Energy implies the advisory label concedes error or binds the PUC	PUC: as an executive agency it may give nonbinding advisory guidance; advisory findings are superfluous and non-preclusive	PUC argues advisory guidance is permissible and non-preclusive; court should not reverse on that basis
Ripeness of claim that FCC amendments apply to municipal utility enforcement under §54.204(c)	CPS Energy maintained the issue is ripe enough for review	PUC: application of FCC amendments to future enforcement is contingent and not yet an injury; ripeness fails	PUC asserts the claim is unripe; no justiciable controversy until the PUC applies amendments to a municipal utility
Whether this is a declaratory-judgment (UDJA) action permitting review now	AT&T/Time Warner and CPS assert purely legal questions could be decided as declaratory	PUC: this was an enforcement action, not a UDJA claim; UDJA precedent is inapposite and the PUC’s statement remains advisory	PUC contends UDJA authority does not make the advisory statement immediately reviewable; review awaits a concrete dispute

Key Cases Cited

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 (Tex. 1993) (courts should not issue advisory opinions; separation of powers concerns)
City of Garland v. Louton, 691 S.W.2d 603 (Tex. 1985) (ripeness doctrine bars advisory opinions)
Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439 (Tex. 1998) (ripeness implicates subject-matter jurisdiction; concrete injury required)
TXU Elec. Co. v. Pub. Util. Comm’n, 51 S.W.3d 275 (Tex. 2001) (agency advisory findings about the future have no res judicata effect)
State Bar of Tex. v. Gomez, 891 S.W.2d 243 (Tex. 1994) (ripeness and jurisdictional principles)
Mayhew v. Town of Sunnyville, 964 S.W.2d 922 (Tex. 1998) (ripeness as a jurisdictional threshold)
Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331 (Tex. 1969) (distinguishing advisory opinions from justiciable controversies)
Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450 (U.S. 1945) (federal prohibition on advisory opinions)