At&T Comm. v Ar Public Service Commission

• Decision Date: 07 July 1999
• Docket Number: 98-517
• Citation: 994 S.W.2d 494
• Parties: AT&T COMMUNICATIONS of the SOUTHWEST, INC. v. ARKANSAS PUBLIC SERVICE COMMISSION CA 98-517 ___ S.W.2d ___ Opinion delivered
• Court: Arkansas Court of Appeals

AT&T COMMUNICATIONS of the SOUTHWEST, INC. v ARKANSAS PUBLIC SERVICE COMMISSION

CA 98-517 ___ S.W.2d ___

Opinion delivered July 7, 1999

Court of Appeals of Arkansas

Divisions I and II

Appeal from Arkansas Public Service Commission; affirmed on direct appeal; affirmed on cross-appeal.

1. Appeal & error -- prejudice must be shown -- appellate court will not render advisory opinion. -- Where error is alleged, prejudice must be shown; the appellate court will not render an advisory opinion.

2. Public Service Commission -- constitutional claims -- Ark. Code Ann. § 23-2-423(c)(4) did not give appellate court jurisdiction to address merits under facts of case. -- Where appellant did not argue that appellee Commission had failed to regularly pursue its authority but in fact agreed with appellee's holding that it lacked jurisdiction to decide its constitutional claims, the appellate court could not agree that, under the facts of the case, Ark. Code Ann. § 23-2-423(c)(4) (Supp. 1997) gave the court of appeals jurisdiction to address the merits of appellant's constitutional claims.

3. Public Service Commission -- constitutional claims -- recourse in circuit court. -- Given appellant's decision not to appeal appellee Commission's jurisdictional ruling, its only recourse was to seek a declaratory judgment on its constitutional claims in circuit court.

4. Appeal & error -- issues not raised below not addressed on appeal. -- The appellate court will not address issues on appeal that were not raised below.

5. Appeal & error -- constitutional issue not raised below not addressed on appeal. -- As with a trial court, the Public Service Commission must be presented with a constitutional issue before an appellate court will consider it on appeal; a constitutional issue will not be addressed if it was not brought to the trial court's attention for a ruling during trial or at some point prior to the entry of final judgment; a fleeting reference to a constitutional argument without any citation of authority, argument, or even any reference to the basis for the reference is insufficient to present the issue for a ruling.

6. Public Service Commission -- challenged order -- argument not addressed where appellant did not show itself aggrieved by. -- The court of appeals did not address appellant's argument that a Public Service Commission order was unlawful because it relied in part upon a statute that appellant asserted was preempted by federal law where appellant did not show that it had been aggrieved by appellee's order.

7. Public Service Commission -- appellate review -- objection to order must be urged before Commission in application for rehearing. -- ArkansasCode Annotated section 23-2-423(c)(2) provides that no objection to any order of the commission shall be considered by the appellate court unless the objection has been urged before the Public Service Commission in the application for rehearing.

8. Statutes -- construction -- absurd conclusion not reached. -- Although a statute should be construed so that no word is void, superfluous, or insignificant, and meaning and effect must be given to every word contained therein, if possible, the appellate court will not interpret a statute so strictly as to reach an absurd conclusion that is contrary to legislative intent.

9. Statutes -- construction -- first rule. -- The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.

10. Statutes -- construction -- ascertaining legislative intent. -- When a statute is ambiguous, the appellate court must give effect to the legislative intent; as a guide in ascertaining legislative intent, the appellate court examines the history of the statutes involved, as well as the contemporaneous conditions at the time of their enactment, the consequences of interpretation, and all other matters of common knowledge within the court's jurisdiction.

11. Statutes -- construction -- agency's interpretation is persuasive. -- The interpretation given a statute by the agency charged with its execution is highly persuasive, and while not conclusive, neither should it be overturned unless it is clearly wrong.

12. Public Service Commission -- Act 77 of 1997 -- Commission did not err in interpreting to allow incumbent local exchange carriers to recover revenue losses from AUSF. -- Where appellee Commission interpreted section 4 of Act 77 of 1997 to allow the requesting incumbent local exchange carriers to recover from the Arkansas Universal Service Fund (AUSF) their revenue losses that resulted from the dissolution of a Toll Pool, the appellate court could not say that its interpretation was clearly wrong.

13. Public Service Commission -- Act 77 of 1997 -- legislative intent regarding AUSF funding. -- Had the legislature intended that no provision of Act 77 of 1997 could be considered a directive that triggered AUSF funding, it could have included such language.

14. Appeal & error -- deficient abstract -- issue may be affirmed where necessary exhibit not included. -- When an exhibit is necessary to an understanding of the testimony about an issue, but is notincluded in the abstract, the issue may be summarily affirmed.

15. Appeal & error -- deficient abstract -- not sufficient to demonstrate that evidence before Commission was not substantial. -- The court of appeals concluded that the abstract presented by appellant was not sufficient to demonstrate that the evidence before appellee Commission did not constitute substantial evidence; without an abstract of the information that was provided to the Administrator, it was not possible for the court to determine whether appellee Commission erred in not finding that the evidence was insufficient to allow the Administrator to verify the "calculations and accuracy" as required by Ark. Code Ann. § 23-17-404(e)(4)(C); the court was unable to determine from appellant's brief whether the order at issue addressed the lack of documentation about which appellant complained on appeal.

16. Public Service Commission -- test year -- statutory language supported Commission's decision regarding. -- The language of Ark. Code Ann. § 23-17-404(e)(4)(C)(i) supported appellee Commission's decision to use a particular base test year for purposes of calculating AUSF support.

Wright, Lindsey & Jennings LLP, by: N.M. Norton and J. Mark Davis, for appellant.

Paul J. Ward, for appellee Arkansas Public Service Commission.

George Hopkins; and Williams & Anderson LLP, by: Leon Holmes, for appellees/cross-appellants Central Arkansas Telephone Cooperative, Inc.; Lavaca Telephone Company, Inc.; Magazine Telephone Company, Inc.; Northern Arkansas Telephone Company, Inc.; Southwest Arkansas Telephone Company, Inc.; Walnut Hill Telephone Company, Inc.

Chisenhall, Nestrud & Julian, P.A., by: Lawrence E. Chisenhall, Jr., and Michael T. Jackson, for appellees Arkansas Telephone Company, Inc.; Century Telephone of Arkansas, Inc.; Century Telephone of Mountain Home, Inc.; Century Telephone of Redfield, Inc.; Century Telephone of South Arkansas, Inc.; Cleveland County Telephone Company; Decatur Telephone Company; Mountain View Telephone Company; Prairie Grove Telephone Company; E. Ritter Telephone Company; South Arkansas Telephone Company; Tri-County Telephone Company; Yelcot Telephone Company; Yell County Telephone Company.

Timothy S. Pickering, for appellee Southwestern Bell Telephone Company.

Stephen B. Rowell; and Friday, Eldredge & Clark, by: Kevin A. Crass, for appellees Alltel Arkansas, Inc.; Alltel Mobile Communications, Inc.; and Alltel Communications, Inc.

John F. Stroud, Jr., Judge.

This appeal results from Arkansas Public Service Commission Order No. 12, which concerns reimbursement funding from the Arkansas Universal Services Fund. The Administrator of the fund determined that twenty-one rural phone companies who requested reimbursement funding should receive a total amount of $9.7 million on an annual basis from the fund. Appellant, AT&T Communications of the Southwest, Inc. (AT&T), and several telecommunications providers requested that the Commission reconsider the Administrator's determination. After a public hearing held in response to their requests, the Commission handed down Order No. 12. On appeal, AT&T argues three points for reversal, contending the Commission's order is unlawful because: (1) it is inconsistent with the Constitution of the State of Arkansas; (2) it relies on a statute that is preempted by federal law; and (3) it is inconsistent with applicable state statutes and not supported by substantial evidence. Appellees Central Arkansas Telephone Cooperative, Inc.; Lavaca Telephone Company, Inc.; Magazine Telephone Company, Inc.; Northern Arkansas Telephone Company, Inc.; Southwest Arkansas Telephone Cooperative, Inc.; and Walnut Hill Telephone Company, Inc. (hereinafter referred to collectively as Cross-Appellants), contend on cross-appeal that the Commission erred in changing the dates of the base year for purposes of calculating their AUSF reimbursement. We find no error to any of these points and affirm.

The Arkansas Universal Service Fund (AUSF) was established by Act 77 of 1997, the Telecommunications Regulatory Reform Act of 1997, in order to promote and assure the availability of universal service at rates that are reasonable and affordable and to provide for reasonably comparable services and rates between rural and urban areas. Section 4 of the Act, codified at Arkansas Code Annotated section 23-17-404 (Supp. 1997), provides for the administration and the funding of the AUSF. The AUSF is funded from a charge levied on all telecommunications providers in the state in proportion to each provider's intrastate retail telecommunications service revenues. Section 23-17-404(e) sets out the instructions and guidelines that the Commission shall adhere to in establishing and...