Windstream Commc'ns, Inc. v. Neb. Pub. Serv. Comm'n (In re Application No. C-4981 of Beau Toben)

Decision Date19 November 2019
Docket NumberNo. A-19-054.,A-19-054.
Citation27 Neb.App. 773,936 N.W.2d 365
Parties IN RE APPLICATION NO. C-4981 of Beau Toben. Windstream Communications, Inc., appellant, v. Nebraska Public Service Commission et al., appellees.
CourtNebraska Court of Appeals

Blake E. Johnson and Katherine J. Spohn, of Bruning Law Group, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and L. Jay Bartel, Lincoln, for appellee Nebraska Public Service Commission.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Beau Toben filed an application with the Nebraska Public Service Commission (PSC) seeking advanced telecommunications service, or broadband service, for a home he was building a few miles west of Doniphan, Nebraska. Toben claimed he was not receiving, and would not within a reasonable time receive, such service through the "Hansen Exchange" of Windstream Communications, Inc. (Windstream). He wished to modify his exchange service area so he could receive such service from the "Doniphan Exchange" of Hamilton Telecommunications (Hamilton). The PSC granted Toben’s application to revise the exchange boundaries. Windstream appeals, claiming the PSC was not authorized to grant the application because the evidence showed that Windstream would provide reasonable advanced telecommunications service within a reasonable time pursuant to Neb. Rev. Stat. § 86-136(1) (Reissue 2014). We affirm.

BACKGROUND

On April 18, 2018, Toben, pro se, filed an application with the PSC, alleging he resided within Windstream’s Hansen Exchange, but he wished to receive advanced telecommunications service from Hamilton’s Doniphan Exchange. The PSC notified Windstream and Hamilton of Toben’s application. Hamilton consented to Toben’s request to be served by its Doniphan Exchange at no direct cost for construction and installation; Windstream objected because it had plans to deploy broadband service and "serve [Toben] within a reasonable period of time." A hearing took place before the PSC in November 2018. Toben appeared pro se, Windstream appeared with counsel, and a representative appeared on behalf of the PSC. Hamilton did not appear. A summary of the evidence from the hearing follows.

Toben testified that he did not have any service from Windstream (or any other local exchange carrier) for a new house he was building a few miles west of Doniphan. There were neither any Windstream lines buried there, nor "land service." He offered photographs of Windstream’s equipment (presumably on his property) showing "line boxes" for their telephone service that "had been in disrepair for the last years [and] nobody has ever serviced [them]." He cited the "lack of maintenance or advancements to the services in [his] area" as one reason for his application. Toben hoped to move into his house by the end of 2018, but indicated installation of broadband service may interfere with finishing the yard and "dirt work" if "things" would have to be buried under his house. At the time of the hearing, Toben said, "[W]here I live I have Hamilton," and he had internet service through Hamilton. According to Toben, Hamilton "buried fiber optics to the area" in 2016, which was why he applied for the boundary change to his new home. He testified, "We are building a new house where there is currently not any service," which he clarified meant no service from anyone, including Hamilton. Toben had contacted Hamilton, and "they [were] willing to provide [him] with Internet service," but Toben acknowledged such service was not currently available through Hamilton. Toben said Hamilton was willing to provide him with internet service and that it could offer speeds of "Ten Mbps." Toben was "hoping to be moved in [to the new house] by the end of the year [2018]." When asked where he was currently living, he indicated he was at his parents' address "while we are building our house."

Regarding his communications with Windstream, Toben said he was told that he would not be able to receive "land service," only (fixed) wireless service; Windstream explained in an email to Toben that "fixed wireless" is a system to provide "high speed internet" by way of a "point to multi-point wireless technology that uses radio frequencies." Toben had not had any experience with fixed wireless service, but was willing to give it a "chance." However, he did not receive service "in the time that was promised." Windstream had indicated in a July 13, 2018, email to Toben that it expected to complete its project to provide fixed wireless service to Toben’s area in "the first few weeks of September 2018." On July 20, Windstream sent an email about servicing Toben’s new house with "the fixed wireless solution" and was "hopeful" to avoid a hearing if possible. On July 26, Toben emailed the PSC asking to postpone a hearing scheduled in August so he could "see if the fixed wireless system that Windstream has planned will be sufficient." In September, Toben contacted Windstream and was told someone would "get back to [him] within a couple of days." After he did not hear from Windstream, Toben rescheduled the hearing.

Brad Hedrick, Windstream’s president of operations for Nebraska and four other states, testified that Windstream wanted to expand its broadband services across rural service areas. He explained that Windstream’s fixed wireless technology was a "much improved version over what other providers ha[d] deployed in these areas in the past." Windstream’s fixed wireless system had not been deployed anywhere in Nebraska yet.

Windstream intended to serve Toben with fixed wireless service. Hedrick stated that Toben’s new house address was within Windstream’s Hansen Exchange, but Windstream had yet to complete two towers in the "Doniphan-Hansen area" that would allow Toben to receive service. Once completed, those towers would provide a service range extending out in a radius of about 4 or 5 miles and would allow a "75 to 100 Mbps download." Although Toben had concerns about Windstream’s radius because his house "falls on the furthest boundary" of the Hansen Exchange, Hedrick testified that "RF engineering experts" said that Toben would receive "at least 75 Mbps."

Hedrick explained why service had been delayed beyond the initial September timeframe provided to Toben. Hedrick identified two "governmental delays," one of which was related to a rules change by the Federal Communications Commission, but that issue had since been resolved. The outstanding issue, which Windstream was notified of about 2 weeks before the PSC hearing, concerned a zoning dispute with Adams County regarding Windstream’s permit application to place poles, or towers, throughout that county. The dispute was about the "location of the site" and whether it was within the "zone or cone of influence of the Hastings Airport." If so, there were alternatives, such as changing the location of the pole or adding "lighting" to the site. According to Hedrick, Windstream was "hopeful" to resolve that issue "soon" and to "deploy service by the end of the year" but that was "not a guarantee." He admitted it was "in the realm of possibility" that the issue could end up in the court system on appeal.

Once the zoning issue was "sorted out," Windstream could begin building and equipping tower sites. Hedrick indicated that Windstream intended to complete other tower sites (in addition to those in the "Doniphan-Hansen area") with fixed wireless service in the "Sutton exchange [and] the Juniata exchange"; "it would be beneficial to [Windstream] if [it] could do them all at the same time." He thought Harvard, Nebraska, would be the first area to deploy (not the "Doniphan-Hansen area") as it was "approved" the same day as the PSC hearing. Windstream had not yet advertised broadband to Doniphan customers "because it would have been premature since [it did not] have any capability to provide service yet" and the "unknown issue [it was] dealing with in Adams County."

On December 18, 2018, the PSC issued its order. It noted that Hamilton and Windstream are local exchange carriers holding certificates of public convenience and necessity to provide local exchange service in their respective territories. The PSC found that Toben was not receiving, and would not receive within a reasonable time, advanced telecommunications capability service from Windstream. The PSC further found that the revision of the exchange service area was economically sound and would not impair the capabilities of the telecommunications companies affected by the change to serve their subscribers. It acknowledged Toben’s willingness to pay construction and other costs related to the boundary change but found that Hamilton was willing to pay those costs. The PSC concluded that the requirements of § 86-136 were met. Therefore, it granted Toben’s application and ordered that the exchange boundaries of Hamilton’s Doniphan Exchange and Windstream’s Hansen Exchange be revised (as detailed in maps attached to the order) in such a way as to allow Toben to receive advanced telecommunications capability service from Hamilton’s Doniphan Exchange.

Windstream appeals.

ASSIGNMENT OF ERROR

Windstream claims the PSC erred by determining Toben would not receive reasonable advanced telecommunications capability service within a reasonable time absent a change of Windstream’s Hansen Exchange boundary.

STANDARD OF REVIEW

Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), an appellate court reviews an order of the PSC de novo on the record. In re Application No. B-1829, 293 Neb. 485, 880 N.W.2d 51 (2016). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions concerning the matters at issue. Id. When an appellate court makes a de novo review, it does not mean that the court ignores the findings of fact made by the agency and the fact that the agency saw and heard the witnesses who appeared at its hearing. In re Application No....

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