Appeal of Northern New England Telephone Operations, LLC
165 N.H. 267
N.H.2013Background
- PUC ordered Verizon (2008) to stop imposing carrier common line (CCL) charges on certain calls; this court reversed in Appeal of Verizon New England, holding CCL is a component of switched access and may be charged when other switched-access functions are provided.
- FairPoint acquired Verizon’s New Hampshire assets; PUC reopened the docket and ordered FairPoint to revise its tariff to clarify CCL is charged only when FairPoint’s common line is used.
- FairPoint filed a tariff on Dec. 22, 2011 revising the CCL and proposing an increased interconnection charge; PUC approved the CCL revision but rejected the interconnection-rate increase, treating that portion as voluntary/illustrative.
- Petitioners moved to dismiss the interconnection-charge portion; PUC found an FCC order and federal rules capped interconnection rates at the Dec. 29, 2011 level and dismissed that part of the docket.
- FairPoint sought reconsideration of both PUC orders and lost; FairPoint appealed to the New Hampshire Supreme Court, which affirms the PUC orders.
Issues
| Issue | FairPoint's Argument | Petitioners/PUC's Argument | Held |
|---|---|---|---|
| Rehearing timeliness | FairPoint did not need to move for rehearing on every PUC order | RSA chapter 541 requires timely rehearing only as to matters raised; FairPoint moved for reconsideration timely | Court: FairPoint’s rehearing was adequate; arguments considered |
| Scope of proceeding / tariff revisions | PUC exceeded scope by ordering tariff changes despite a 2006 procedural order | PUC later found administrative convenience warranted considering tariff revisions in same docket | Court: PUC reasonably acted; FairPoint failed to show error |
| Sufficiency of evidence re: CCL as "contribution element" | CCL is a contribution element recoverable even when common line not used | Record contains adversarial testimony (AT&T) showing CCL recovers common-line costs only when common line used | Court: PUC’s factual finding that CCL is not a contribution element is supported |
| Due process / opportunity to relitigate CCL purpose | PUC unlawfully precluded relitigation of CCL purpose, depriving FairPoint of meaningful hearing | FairPoint accepted the record "as is"; Verizon previously had opportunity to litigate; no showing of evidence it would have offered | Court: No due-process violation; FairPoint had meaningful opportunity |
| Interconnection-charge classification and federal cap | Interconnection charge is local transport element not subject to FCC cap | PUC found charge, even if local transport, is applicable to Tandem-Switched Transport and capped at Dec. 29, 2011 rates | Court: PUC correctly concluded federal cap applies; rejection of rate increase proper |
| Statutory time limits and partial approval of filing | PUC had to act on whole tariff filing and follow RSA 378:6 time limits | PUC may treat portions differently; some items were non-voluntary and not subject to the suspension period; it can approve/reject parts | Court: No error; PUC may approve/reject or alter portions of filings and denial caused no material prejudice |
Key Cases Cited
- Appeal of Verizon New England, 158 N.H. 693 (2009) (CCL is a component of switched access service)
- Appeal of Bretton Woods Tel. Co., 164 N.H. 379 (2012) (standard of review for PUC orders; presumption of validity for agency factfinding)
- Appeal of Pennichuck Water Works, 160 N.H. 18 (2010) (judicial deference to PUC policy choices; statutory interpretation de novo)
- Appeal of Office of Consumer Advocate, 148 N.H. 134 (2002) (PUC proceedings and relation to RSA chapter 541)
- Rainville v. Lakes Region Water Co., 163 N.H. 271 (2012) (plain statutory language controls)
- Appeal of Coffey, 144 N.H. 531 (1999) (issues not raised in rehearing cannot be raised on appeal)
- Ruel v. N.H. Real Estate Appraiser Bd., 163 N.H. 34 (2011) (procedural error requires material prejudice to set aside agency decision)
- Appeal of Concord Natural Gas Corp., 121 N.H. 685 (1981) (no set-aside for procedural irregularity absent material prejudice)
- Appeal of Concord Steam Corp., 130 N.H. 422 (1988) (inadequate notice can deny meaningful opportunity to be heard)
- Appeal of Sch. Admin. Unit #44, 162 N.H. 79 (2011) (state and federal due-process analysis)
- Backer v. Public Serv. Co. of N.H., 119 N.H. 356 (1979) (PUC’s plenary power over rates except in defined instances)
- Appeal of Omega Entm’t, 156 N.H. 282 (2007) (unsupported constitutional claims need not be considered)