{¶ 1} On Nоvember 5, 2003, Time Warner Cable Information Services (Ohio), L.L.C. (“Time Warner”), applied to respondent, Public Utilities Commission of Ohio, for a certificate of public convenience and necessity authorizing Time Warner to provide local and interexchange voice services in Ohio using Voice over
{¶ 2} In November 2003, various entities, including relator, Cincinnati Bell Telephone Company (“Cincinnati Bell”), moved to intervene in Time Warner’s case, which was designated as commission case No. 03-2229-TP-ACE. Cincinnati Bell oppоsed Time Warner’s application on the basis that Time Warner should be subject to the same regulatory requirements as local exchange telephone companies.
{¶ 3} On December 17, 2003, the commission deferred the resolution of Time Warner’s application until the commission decides case No. 03-950-TP-COI, In re Comm. Investigation into Voice Services Using Internet Protocol, which is the commissiоn’s generic investigation into its jurisdiction over VoIP providers, the resolution of which, it said, may be affected by litigation and federal regulation. The commission further authorized Time Warner to provide the VoIP services specified in its application pending resolution of case No. 03-950-TP-COI.
{¶ 4} On January 16, 2004, Cincinnati Bell applied for a rehearing of the commission’s December 17, 2003 order. Cincinnati Bell raised several grounds in alleging that the commission had acted unreasonably and unlawfully by “authorizing [Time Warner] to provide telephone service in Ohio without a certificate of public convenience and necessity,” by “providing [Time Warner] with unjustified regulatory advantages,” and by “not requiring [Time Warner] to comply with equal access rules which, by statute, are not waivable.”
{¶ 5} On February 11, 2004, the commission, by entry, denied Cincinnаti Bell’s and the other entities’ applications for rehearing. The commission noted that despite the language in its December 17, 2003 entry authorizing Time Warner to provide VoIP services, it had not granted Time Warner’s certification application or any operating authority:
{¶ 6} “In our December 17, 2003 Entry, we merely meant to convey that, pending the resolution of the jurisdictional issue, [Time Warner] should retаin, not unlike each of these other entities [using VoIP], its ability to operate in the manner of its own choosing, and that [Time Warner’s] ability to do so should not be impacted by the fact that it has, unlike most of these other entities, filed a
{¶ 7} On March 12, 2004, Cincinnati Bell filеd another application for rehearing in the Time Warner case, this time seeking rehearing of the commission’s February 11, 2004 entry denying Cincinnati Bell’s first application for rehearing. Cincinnati Bell claimed that the commission erred because it “fails to recognize that [Time Warner] would be a telephone company under Ohio law,” “implies that [Time Warner] may operate as a telephоne company without a certificate of public convenience and necessity,” and “implies that [Time Warner] may operate out of compliance with the Commission’s rules without waivers.” Cincinnati Bell specified that it was challenging the commission’s February 11, 2004 order on rehearing rather than the commission’s December 17, 2003 order. Cincinnati Bell’s second application for rehearing was dеnied by operation of law because the commission took no action on it within 30 days of its filing. See R.C. 4903.10.
{¶ 8} On June 9, 2004, Cincinnati Bell filed a notice of appeal in this court from the commission’s February 11, 2004 entry on rehearing and the denial by operation of law of Cincinnati Bell’s March 12, 2004 application for rehearing. On that same day, Cincinnati Bell filed a copy of its notice of appeal with the commission’s docketing division, which docketed it in the Time Warner case. Although the docketing division required only one copy of a notice of appeal, Cincinnati Bell’s counsel left several extra copies of the notice of appeal with the docketing division in order to provide the required service. A clerk with the docketing division informed Cincinnati Bell’s attorney that a copy would bе distributed to the office of the commission’s counsel — the Attorney General.
{¶ 9} Cincinnati Bell’s notice of appeal included an attached certificate of service certifying service of the notice on the parties’ counsel in the Time Warner case by U.S. mail, but it did not certify that service had been perfected on the chairman of the commission, any commissioner, or the Attornеy General. The appeal is captioned as Cincinnati Bell Tel. Co. v. Pub. Util. Comm., case No. 2004-0925. The commission did not transmit a transcript of the proceeding in the Time Warner case (case No. 03-2229-TP-ACE) within 30 days of service of the notice of appeal.
{¶ 10} On July 12, 2004, which was 33 days after service of its notice of appeal, Cincinnati Bell filed a complaint in this court. Cincinnati Bell requested a writ of mandamus to compel thе commission to transmit to the clerk of this court a complete transcript of the proceeding in case No. 03-2229-TP-ACE for inclusion in the record in its appeal. On August 5, 2004, the commission moved to dismiss Cincinnati Bell’s mandamus action. On that same date, Time Warner, as an amicus curiae, filed a memorandum in support of the commission’s dismissal
{¶ 11} On September 29, 2004, we granted the commission’s motion to strike, denied the commission’s motion to dismiss, and granted an alternative writ. State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm.,
{¶ 12} This cause is now before the court for our consideration of the merits.
Mandamus: R.C. 4903.21 and S.Ct.Prac.R. V(4)
{¶ 13} In order to be entitled to the requested writ of mandamus, Cincinnati Bell must establish a clear legal right to the transmission of the commission transcript, a corresponding clear legal duty on the part of the commission to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Steele v. Morrissey,
{¶ 14} R.C. 4903.21 imposes a duty upon the commission to transmit to the clerk of this court a transcript of the commission proceedings upon service or waiver of service of the notice of appeal in accordance with R.C. 4903.13:
{¶ 15} “Upon service or waiver of the notice of appeal as provided in section 4903.13 of the Revised Code, the public utilities commission shall forthwith transmit to the clerk of the supreme court a transcript of the journal entries, the original papers or transcripts thereof, and a certified transcript of all evidence adduced upon the heаring before the commission in the proceeding complained of, which documents shall be filed in said court.” (Emphasis added.)
{¶ 16} If the commission does not transmit the transcript within 30 days of service of the notice of appeal, the appellant may request a writ of mandamus within three days after the 30th day. S.Ct.Prac.R. V(4) (“The word ‘forthwith’ as used in section 4903.21 of the Revised Code, providing that upon service or waivеr of service of the notice of appeal the Public Utilities Commission shall forthwith transmit to the Clerk of the Supreme Court a complete transcript of the proceeding, shall mean a period of 30 days. If at the expiration of 30 days the transcript has not been filed, the appellant shall have an additional three days in which to file a complaint in the Supreme Court for a writ of mandаmus to compel the Commission to file the transcript”).
Propriety of Hart Affidavit
{¶ 18} Befоre the court considers the commission’s primary arguments, we must first address the commission’s contention that the affidavit of Cincinnati Bell’s counsel, Douglas E. Hart, filed as part of its evidence, should not be considered because it is similar to the affidavit previously stricken by the court and it contains inadmissible legal conclusions and hearsay.
{¶ 19} The commission’s argument lacks merit. Our previous decision striking Hart’s affidavit wаs based on the determination that under S.Ct.Prac.R. X(5) and Civ.R. 12(B)(6), we are confined to the material factual allegations of the complaint. See, e.g., Taiman v. Fairfield Cty. Bd. of Elections,
{¶ 20} Further, Hаrt’s affidavit contains admissible evidence. Under S.Ct. Prac.R. X(7), affidavits submitted in original actions in this court “shall be made on personal knowledge, setting forth facts admissible in evidence, and showing affirmatively that the affiant is competent to testify to all matters stated in the affidavit.” See, also, State ex rel. Nix v. Cleveland (1998),
{¶21} Notwithstanding the commission’s claims, Hart’s affidavit statements that “to provide service per R.C. 4903.13,” he “left several extra copies of the
{¶ 22} And the commission employee’s response that a copy would be distributed to the commission’s attorney was not hearsay. Evid.R. 801(D)(2)(d) (a statement offered against a party is not hearsay if it is “a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship”). For example, in Davis v. Sun Refining & Marketing Co. (1996),
{¶ 23} Therefore, we consider Hart’s affidavit as evidence in evaluating Cincinnati Bell’s mandamus claim.
R.C. 4903.13
{¶ 24} The commission initially asserts that its duty under R.C. 4903.21 to transmit the transcript in the Time Warner case did not arise, because Cincinnati Bell did not comply with R.C. 4903.13 in serving its notice of appeal. R.C. 4903.13 specifies that the notice of appeal shall be served, unless waived, as follows:
{¶ 25} “The notice of аppeal shall be served, unless waived, upon the chairman of the commission, or, in the event of his absence, upon any public utilities commissioner, or by leaving a copy at the office of the commission in Columbus.”
{¶ 26} The commission claims that because Cincinnati Bell did not serve the notice of appeal on either the chairman of the commission or a commissioner, Cincinnati Bell did not comply with R.C. 4903.13. The commission construes
{¶ 27} The commission’s contention lacks merit. R.C. 4903.13 specifies the following independent options for proper service, unlеss waived, of the notice of appeal: (1) service upon the commission chairman, (2) in the chairman’s absence, service upon any commissioner, or (3) service by leaving a copy of the notice of appeal at the commission office in Columbus. The commission’s contrary construction of R.C. 4903.13 would in effect delete the comma separating the final two options. Seе, generally, Garner, A Dictionary of Modern Legal Usage (2d Ed.1995) 714 (a comma is used to separate items in a list of more than two and to mark the ending of a parenthetical phrase, but is not needed when the subject of the second independent clause is the same as in the first). Therefore, the commission’s interpretation of R.C. 4903.13 is not in accordance with the court’s duty to “read words and phrases in сontext according to the rules of grammar and common usage.” State ex rel. Lee v. Karnes,
{¶ 28} Cincinnati Bell complied with the last of the statutory service options by leaving copies of its notice of appeal with the commission’s docketing division in Columbus for delivery to the Attorney General. Cf. Consol. Rail Corp. v. Pub. Util. Comm. (1988),
{¶ 29} Therefore, Cincinnati Bell complied with the R.C. 4903.13 service requirement. Based on this conclusion, the court need not consider Cincinnati Bell’s alternative arguments that it also served the commission in compliance with R.C. 4903.13 by simply filing the notice of appeal with the commission’s docketing division or by subsequently serving the commission chairman with a copy of its June 9, 2004 notice of appeal on October 6, 2004.
Commission’s Arguments Concerning Jurisdiction of Court in Cincinnati Bell’s Appeal
{¶ 30} Thе commission next asserts that it has no duty to transmit a transcript of the proceedings because the court lacks jurisdiction over Cincinnati Bell’s appeal in case No. 2004-0925. The commission argues that the commission orders appealed by Cincinnati Bell do not constitute final appealable orders and that Cincinnati Bell’s appeal was not timely. The commission’s recent practice of
{¶ 31} As noted previously in analyzing R.C. 4903.13, we reаd words and phrases in context and construe them according to the rules of grammar and common usage. Maschari v. Tone,
{¶ 32} After applying these rules of construction, it is manifest that R.C. 4903.21 conditions the commission’s duty to transmit a transcript of the proceeding only upon “service or waiver [of service] of the noticе of appeal as provided in” R.C. 4903.13. By statute the commission must transmit the transcript in an appeal despite a lack of jurisdiction — perceived or real — by this court over the appeal. Adopting the commission’s argument would add the appealability of a commission order as a condition to its duty under R.C. 4903.21. But we cannot add this condition to the statute. See State v. Hughes (1999),
{¶ 33} Therefore, we need not address the commission’s remaining claims. Based on the foregoing, Cincinnati Bell has established a clear legal right to the transmission of the complete transcript of the Time Warner case to the clerk of this court in case No. 2004-0925, a clear legal duty on the part of the commission to transmit the transcript, and the lack of an adequate remedy in the ordinary course of the law.
{¶ 34} Accordingly, we grant the requested writ of mandamus to compel respondent to transmit a complete transcript of the Time Warner case (case No. 03-2229-TP-ACE) to the clerk of this court for filing in case No. 2004-0925 based on R.C. 4903.21 and S.CtPrac.R. V(4). Leaving a copy of the notice of appeal with the commission complied with R.C. 4903.13. Furthermore, R.C. 4903.21 does not condition the commission’s duty to transmit a transcript of the commission proceeding on whether this court has jurisdiction over the appeal. That issue is better addressed in the appeal itself.
Writ granted.