Crown Castle NG East LLC and Pennsylvania-CLE LLC v. PA PUC
188 A.3d 617
Pa. Commw. Ct.2018Background
- Crown Castle and Pennsylvania-CLE operate neutral-host Distributed Antenna System (DAS) networks that transport wireless traffic for wireless service providers (WSPs) via nodes, fiber transport, and hubs.
- From ~2005–2015 the Pennsylvania PUC certificated DAS operators as Competitive Access Providers (CAPs) under the Code’s public utility definition for conveying or transmitting communications (66 Pa. C.S. §102(1)(vi)).
- In 2016 the PUC opened an investigatory proceeding to determine whether DAS operators instead fall within the statutory exclusion for entities that “furnish[] mobile domestic cellular radio telecommunications service” (66 Pa. C.S. §102(2)(iv)), i.e., commercial mobile radio service (CMRS).
- After comments, the PUC issued the March 17, 2017 DAS Order concluding DAS operators furnish CMRS (or operate equipment that does) and therefore are excluded from Commission jurisdiction and ineligible for Certificates; the PUC directed review (and possible rescission) of existing Certificates.
- Crown Castle petitioned for reconsideration (denied) and then filed this appeal in Commonwealth Court; the Court granted a stay and reviewed whether the PUC’s new interpretation of the Code was lawful.
- The Commonwealth Court reversed the PUC, holding the PUC improperly expanded subsection (2)(iv) to cover owners/operators of facilities that merely facilitate CMRS and that DAS transport services are certificable telecommunications services under Pennsylvania precedent.
Issues
| Issue | Plaintiff's Argument (Crown Castle) | Defendant's Argument (PUC) | Held |
|---|---|---|---|
| Whether DAS operators are public utilities under 66 Pa.C.S. §102(1)(vi) or excluded by §102(2)(iv) | DAS provides wholesale transport/telecommunications (not CMRS); §102(2)(iv) excludes only those who actually "furnish" CMRS, not facility operators | DAS facilities are used to furnish CMRS; read together §102(1)(vi) and (2)(iv) exclude facility operators whose equipment supplies mobile service | Held for Crown Castle: §102(2)(iv) excludes only entities that themselves furnish CMRS; PUC’s reading that adds "operators of equipment that facilitate CMRS" is unlawful expansion of the statute |
| Whether the PUC’s changed interpretation deserves deference | Deference is limited where agency reverses longstanding interpretation without statutory change; prior PUC practice and other jurisdictions support certification | Agency expertise and technical role justify deference to its statutory construction | Held: limited deference due to PUC’s abrupt reversal from long-standing practice; the Court assesses de novo and rejects PUC interpretation |
| Whether DAS operators actually "furnish" CMRS under federal CMRS definitions | DAS lacks spectrum, phone numbers, customer relationship with retail users, and control of RF generation — it merely provides transport analogous to transmission path service in Rural Telephone | DAS equipment receives/transmits RF and links end users to PSTN via WSPs, satisfying functionality of furnishing mobile interconnected service | Held for Crown Castle: DAS operators do not themselves furnish CMRS; their transport service is a telecommunications service that can be certificated (consistent with Rural Telephone) |
| Whether FCC Wireless Infrastructure Order supports PUC’s conclusion | FCC order extends siting protections to DAS facilities but does not classify DAS network operators as CMRS providers; FCC distinguishes facilities from the services they carry | PUC relies on FCC language treating DAS facilities as used to provide personal wireless services to support finding DAS are within CMRS regulation | Held: FCC order does not equate facilities with provision of CMRS; it does not justify PUC’s statutory expansion, so PUC reliance on FCC order is unpersuasive |
Key Cases Cited
- Popowsky v. Pennsylvania Pub. Util. Comm’n, 706 A.2d 1197 (Pa. 1997) (agency statutory interpretations ordinarily entitled to deference)
- Rural Telephone Co. Coalition v. Pennsylvania Pub. Util. Comm’n, 941 A.2d 751 (Pa. Cmwlth. 2008) (transmission-path/transport services are telecommunications services subject to certification even if they carry non-jurisdictional information services)
- Dauphin Cty. Indus. Dev. Auth. v. Pennsylvania Pub. Util. Comm’n, 123 A.3d 1124 (Pa. Cmwlth. 2015) (less deference to an agency’s new interpretation that contradicts longstanding practice)
- Mazza v. Secretary of Dep’t of Health & Human Servs., 903 F.2d 953 (3d Cir. 1990) (agency interpretations that conflict with prior positions receive little deference)
- PECO Energy Co. v. Pennsylvania Pub. Util. Comm’n, 791 A.2d 1155 (Pa. 2002) (standards and scope for appellate review of PUC orders)