Appeal of Bretton Woods Telephone Co.
164 N.H. 379
N.H.2012Background
- Incumbent rural LECs petition to rescind or void CLEC registrations in RLEC territories; PUC denied motion; parties requested reconsideration; court reviews PUC’s preemption ruling under 47 U.S.C. §253 and NH law; Court previously held in Appeal of Union Tel. Co. that prior notice/hearing may be required; PUC concluded RSA 374:26 and 374:22-g II preempted by §253(a) and §253(b) and would pursue rulemaking; record developed with intervenors segTEL and NECTA; stipulation framed a multi-step adjudicative process for CLEC entry rejected as too burdensome; court affirms the PUC’s preemption ruling and notes potential for future rulemaking to ensure competitively neutral entry.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 253(a) preempts RSA 374:22-g II | Bretton Woods argues 374:22-g II not preempted | PUC found 374:22-g II preempts due to inhibiting competition | Yes, preempted by § 253(a) |
| Whether § 253(b) saves RSA 374:22-g II | § 253(b) permits competitively neutral rules; NH law not neutral | § 253(b) does not save non-neutral factors | No, not saved by § 253(b) |
| Whether the notice/hearing requirement is preempted by § 253(a) based on burden | Process is fair; burden burdensome, not absolute prohibition | Hearing requirements conflict with federal policy favoring multiple entrants | Preempted; lengthy adjudicative process burdensome and inhibits entry |
| Whether the PUC acted within its authority by recognizing possible future rulemaking | Ri pe, not ripe; rules could address neutrality | Rulemaking appropriate to craft competitively neutral regime | Ripe for review not at this stage; court defers on rulemaking scope |
| Whether § 253(f) applies to exempt providers | § 253(f) could impose entry requirements | Exempt providers not covered by § 253(f) | Not applicable/raised but not decided |
Key Cases Cited
- Appeal of Union Tel. Co., 160 N.H. 309 (2010) (sets standard for § 253 preemption and need for notice/hearing)
- Appeal of Union Tel. Co., 160 N.H. 319 (2010) (recognizes preemption issue and potential need to preempt state law)
- In the Matter of the AVR, L.P. d/b/a Hyperion of Tennessee, L.P., 14 F.C.C.R. 11064 (1999) (illustrates non-neutral state rules and preemption concerns)
- RT Communications, Inc. v. F.C.C., 201 F.3d 1264 (10th Cir. 2000) (example of non-neutrality preemption)
- Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (discusses scope of § 253(a) preemption)
- Level 3 Communications, LLC v. City of St. Louis, 477 F.3d 528 (8th Cir. 2007) (interprets what constitutes prohibition under § 253(a))
- The Municipality of Guayanilla v. Puerto Rico, 450 F.3d 9 (1st Cir. 2006) (preemption context cited regarding competitive entry)