Before Steadman, Schwelb and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Petition for Review of a Decision of the Public Service Commission of the District of Columbia
Today this court is called upon to vindicate the reputation of a public pay telephone owned by petitioner Bell Atlantic - Washington, D.C., Inc. Reversing the findings and decision of its hearing officer, the Public Service Commission determined that the payphone was involved in "illegal or suspicious activity" and ordered its removal. We hold that the record does not support a finding that the payphone in question was used for illegal purposes. We find ourselves uncertain whether the regulations of the Commission authorize it to order removal of a payphone based solely on a finding of "suspicious activity," and if so what the standard of "suspicious activity" means in this context. We therefore remand this matter to the Commission to permit it to speak to those questions in the first instance.
At issue in this case are two regulations promulgated by the Public Service Commission as part of its Public Pay Telephone rules, set out in Chapter 6 of Title 15 of the District of Columbia Municipal Regulations. The first regulation, 15 DCMR § 605.8 (1998), provides that "[t]he causes for filing a complaint over a public pay telephone shall include, but not be limited to, the following: . . . (b) [t]he instrument is being used for illegal purposes; or suspicious activity at the instrument." *fn1 The second regulation, § 601.9, provides that public pay telephones "found to be used for illegal purposes shall be subject to termination or alteration of service." *fn2 The term "suspicious activity," which appears in § 605.8, is absent from § 601.9. That term, the meaning of which is critical to this appeal, is not defined and does not appear elsewhere in the Public Pay Telephone rules. *fn3
In 1999 a private citizen named Earle Rands filed a complaint with the Commission pursuant to § 605.8 requesting the removal of ten public payphones in a three block stretch of H Street, N.E., on the ground that the payphones were being used for illegal purposes in violation of § 601.9. One of those ten payphones, situated near 1106 H Street, N.E., is the instrument whose fate is at issue in this appeal. An evidentiary hearing was eventually held at which Mr. Rands, a resident of the neighborhood named Jane Silver, and Sergeant Diane Groomes of the Metropolitan Police Department testified that drug dealing, public drinking, loitering, littering and other forms of disorderly or undesirable conduct occurred in the vicinity of payphones located in the "H Street corridor." The gist of their testimony was that the presence of the payphones encouraged and contributed to the unwelcome street activity that the witnesses described, especially because so many instruments were concentrated in a relatively confined area. As to each particular payphone that was the subject of the complaint, however, the evidence varied.
Mr. Rands and Ms. Silver were able to testify about drug transactions and other objectionable conduct in the vicinity of payphones at 1111, 1122 and 1125 H Street. Neither of them could testify specifically about activity involving the Bell Atlantic payphone at 1106 H Street. Sergeant Groomes testified that she had made an arrest for cocaine distribution at the 1111 H Street payphone, and that she had received complaints from local merchants about other phones. Regarding the payphone at 1106 H Street, Sergeant Groomes testified as follows:
1106, okay, that's my biggest problem right now. 1106 H Street. . . . 1106 is my problem now. In fact, two days ago they complained about [name omitted], my drug dealer on my beat right now. He used to use the ones at 1101, and we have arrested him for distribution of crack cocaine. . . . Two days ago, [a merchant] complain[ed] about [name omitted]. He goes: He's dealing drugs. I'm trying to get more information. Where is he hiding it? He hides it in his crotch. Now, unless we have a legal reason to stop this man and arrest him on something else, we can't just search his groin area for no reason. But that is the - this, 1106, is my number one right now. In fact, it's in front of a vacant building, really, and then the barber shop's on the corner, like right catercorner to it. And that's the problem. And there's steps that a lot of the homeless people sit on.
This was the only testimony at the hearing specific to Bell Atlantic's payphone at 1106 H Street, N.E.
The hearing officer ruled that the evidence was insufficient to establish that any of the payphones in issue were being used for illegal purposes in violation of 15 DCMR § 601.9. *fn4 With respect to the payphone at 1106 H Street, N.E., the hearing officer stated:
The only evidence concerning the 1106 H Street payphone was Sgt. Groomes' testimony regarding citizen complaints about loitering and possible illegal activity occurring around that payphone. Sgt. Groomes did not testify that she had observed illegal activity occurring on that payphone, so there is no concrete evidence that illegal activity has occurred on that payphone.
Mr. Rands' request for an order removing the payphones on H Street, N.E. was denied.
On appeal to the full Commission, the Office of the People's Counsel (representing Mr. Rands pursuant to D.C. Code § 43-406 (d)(3) (1998)) argued that the hearing officer should have considered whether the evidence established "suspicious activity" at the payphones in question. Bell Atlantic and the other payphone owners did not object to this retroactive broadening of the inquiry, and the Public Service Commission agreed that under 15 DCMR § 605.8, the hearing officer's "failure to consider" evidence of "suspicious activity" was reversible error. Deciding to reconsider the evidence itself on the record before it, the Commission found that there was sufficient "illegal or suspicious activity occurring at five of the instruments subject to the hearing" to justify ordering their removal. Id. The Commission included the payphone at 1106 H Street among the five because "Sergeant Groomes considered the 1106 H Street payphone her major problem, implying that a known drug dealer used this payphone." Id. On motion for reconsideration, the Commission adhered to its ruling. Stating that "Sergeant Groomes' testimony was corroborated ...