Cablevision Systems Corp. v. Department of Telecommunications & Energy

• Decision Date: 08 December 1998
• Citation: 702 N.E.2d 799,428 Mass. 436
• Parties: CABLEVISION SYSTEMS CORPORATION v. DEPARTMENT OF TELECOMMUNICATIONS & ENERGY & another 1 (and a consolidated case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 799

702 N.E.2d 799

428 Mass. 436

CABLEVISION SYSTEMS CORPORATION v. DEPARTMENT OF TELECOMMUNICATIONS & ENERGY & another¹ (and a consolidated case).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 10, 1998.

Decided Dec. 8, 1998.

Jeffrey S. Robbins, Boston (A.W. Phinney, III, with him), for plaintiff.

Peter T. Wechsler, Assistant Attorney General, for Department of Telecommunications and Energy.

Roscoe Trimmier, Jr., Boston (Luke T. Cadigan, with him), for Boston Edison Company.

Patricia Comfort, Easton, for Massachusetts Public Interest Research Group, amicus curiae, submitted a brief.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

WILKINS, Chief Justice.

We have before us, on a reservation and report by a single justice of this court, the appeal of Cablevision Systems Corporation (Cablevision), pursuant to G.L. c. 25, § 5, of a decision of the Department of Telecommunications & Energy (department) approving a holding company proposal of the intervener Boston Edison Company (Edison). ² Under G.L. c. 25, § 5, only an "aggrieved party in interest" may appeal from a decision of the department. The department did not grant Cablevision status as a party but did allow it the role of a limited participant. The department and Edison moved to dismiss Cablevision's appeal.

A limited participant does not qualify as a party in interest entitled to appeal department decisions. See Robinson v. Department of Pub. Utils., 416 Mass. 668, 671 n. 3, 624 N.E.2d 951 (1993); Attorney Gen. v. Department of Pub. Utils., 390 Mass. 208, 216-217, 455 N.E.2d 414 (1983). ³ It is well established, however, that a petitioner would have standing to appeal pursuant to G.L. c. 25, § 5, if the department improperly denied it full intervener status. See KES Brockton, Inc. v. Department of Pub. Utils., 416 Mass. 158, 164, 618 N.E.2d 1352 (1993); Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 673, 322 N.E.2d 742 (1975).

Cablevision, a provider of telecommunications and cable systems, contends that the department committed an error of law and an abuse of discretion in denying it status as a party, pursuant to G.L. c. 30A, § 1(3)(c). It argues that the department failed to recognize that the effect on Cablevision of Edison's corporate restructuring was a relevant consideration in the commission's decision. It argues that it would be "substantially and specifically affected" by approval of Edison's proposal because it is a competitor and potential competitor of Edison's unregulated video and telecommunications affiliate. In particular, Cablevision claims that the holding company structure would allow Edison to use assets of its regulated activities unfairly and unlawfully to subsidize its affiliate's activities in the cable and communications market.

Under G.L. c. 164, § 96, the department was charged with deciding whether Edison's proposal was "consistent with the public interest." The department determined that Cablevision was not "substantially and specifically affected" by the proceeding because its claims arose out of its status as a competitor of Edison's unregulated cable industry affiliate. Therefore, the department rejected Cablevision's petition to intervene as a full party. The department concluded that its task was to assess the public interest in terms of how the proposed merger might affect Edison's monopoly ratepayers. To that end it would "consider appropriate safeguards to ensure that monopoly ratepayers do not subsidize unregulated activities." Any investigation concerning the impact of competition was limited to the effects of competition within the electric industry. The department ruled that to consider the impact over competition in other industries "would have been impracticable given the vast array of markets a company may choose to pursue." The department approved the merger. ⁴

Cablevision claims that the department's narrow definition of the words "consistent with the public interest" led to the department's denial of Cablevision's motion for full party status. The department did not commit an error of law in concluding that its statutory obligation to consider the public interest did not require it to consider the consequences of competition between Cablevision and Edison's unregulated affiliate. The department has not considered inter-industry competition to be a relevant factor in evaluating the public interest under G.L. c. 164, § 96. In various circumstances, intra-industry competitors have had standing to challenge agency action that allegedly caused them harm. See Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 295-296, 367 N.E.2d 796 (1977); Everett Town Taxi, Inc. v. Aldermen of Everett, 366 Mass. 534, 538-539, 320 N.E.2d 896 (1974); South Shore Nat'l Bank v. Board of Bank Incorporation, 351 Mass. 363, 367-368, 220 N.E.2d 899 (1966); A.B. & C. Motor Transp. Co. v....