In re N. New Eng. Tel. Operations, LLC

• Decision Date: 21 August 2013
• Docket Number: No. 2012–398,2012–398
• Citation: 75 A.3d 1102,165 N.H. 267
• Parties: APPEAL OF NORTHERN NEW ENGLAND TELEPHONE OPERATIONS, LLC d/b/a FairPoint Communications—NNE (New Hampshire Public Utilities Commission)
• Court: New Hampshire Supreme Court

165 N.H. 267

75 A.3d 1102

APPEAL OF NORTHERN NEW ENGLAND TELEPHONE OPERATIONS, LLC d/b/a FairPoint Communications—NNE (New Hampshire Public Utilities Commission)

No. 2012–398

Supreme Court of New Hampshire.

Argued: April 11, 2013

Opinion Issued: August 21, 2013

Orr & Reno, P.A., of Concord (Susan S. Geiger on the joint brief and orally), for the petitioner Freedom Ring Communications, LLC d/b/a BayRing Communications.

Rich May, P.C., of Boston, Massachusetts (Shaela McNulty Collins and Eric J. Krathwohl on the joint brief), for petitioner Global Crossing Telecommunications, Inc., A Level 3 Company.

BCM Environmental & Land Law PLLC, of Concord (Amy Manzelli on the joint brief), and Fagelbaum & Heller, LLP, of Sherborn, Massachusetts (Gregory M. Kennan on the joint brief), for petitioner Choice One of New Hampshire, Inc., Conversent Communications of New Hampshire, LLC, CTC Communications Corp., and Lightship Telecom, LLC, all of which do business as Earthlink Business.

Hinckley, Allen & Snyder, LLP, of Concord (Daniel M. Deschenes on the joint brief), and James A. Huttenhower, of Chicago, Illinois, on the joint brief, for petitioner AT & T Corp.

Devine, Millimet & Branch, P.A., of Manchester (Harry N. Malone on the brief and orally), for the respondent, Northern New England Telephone Operations, LLC d/b/a FairPoint Communications—NNE.

DALIANIS, C.J.

The respondent, Northern New England Telephone Operations, LLC d/b/a FairPoint Communications—NNE (FairPoint), appeals two orders of the New Hampshire Public Utilities Commission (PUC). The petitioners are all "competitive local exchange carriers." We affirm.

The record supports the following facts. On March 21, 2008, the PUC ordered Verizon New England, Inc. d/b/a Verizon New Hampshire (Verizon) to stop imposing "carrier common line charges" upon certain telephone calls that did not require the use of Verizon's common line. The PUC found that Verizon did not provide switched access service in connection with these calls. On appeal, we reversed the PUC's decision. See Appeal of Verizon New England, 158 N.H. 693, 972 A.2d 996 (2009). Under the plain language of Verizon's access tariff (the Tariff), we concluded that Verizon was allowed to impose a "carrier common line access charge" (CCL charge) upon "each aspect of switched access service," and that "common line access" is only one component of switched access service. Id. at 696–97, 972 A.2d 996. It was undisputed that Verizon provided other aspects of switched access service with respect to the calls at issue. Id. at 697, 972 A.2d 996.

Following our decision, the PUC reopened the proceeding and ordered FairPoint, which had purchased Verizon's New Hampshire assets, to modify the Tariff to clarify that it could "charge CCL only when a FairPoint common line is used in the provision of switched access services." The PUC gave FairPoint thirty days to submit tariff revisions. Ultimately, on January 20, 2012, the PUC approved in part, and rejected in part, tariff revisions that FairPoint submitted within the single filing (the "tariff filing") on December 22, 2011. The PUC approved FairPoint's revision of the CCL charge, but rejected FairPoint's proposal to increase the rate of an interconnection charge under the Tariff. The PUC found that this portion of the tariff filing was submitted voluntarily and would be treated as "illustrative in the pending adjudication." Shortly thereafter, on February 3, 2012, the PUC granted the petitioners' motion to dismiss the portion of the docket related to the interconnection charge. The PUC determined that an order of the Federal Communications Commission (FCC) and sections of the Code of Federal Regulations capped the rate of the interconnection charge at the rate in effect on December 29, 2011. FairPoint unsuccessfully moved for reconsideration of both orders, and this appeal followed.

We begin with the standard of review. A party seeking to set aside an order of the PUC has the burden of demonstrating that the order is contrary to law or, by a clear preponderance of the evidence, is unjust or unreasonable. RSA 541:13 (2007); see Appeal of Bretton Woods Tel. Co., 164 N.H. 379, 386, 56 A.3d 1266 (2012). Findings of fact by the PUC are presumed prima facie lawful and reasonable. RSA 541:13 ; see Appeal of Bretton Woods Tel. Co., 164 N.H. at 386, 56 A.3d 1266. "When we are reviewing agency orders which seek to balance competing economic interests, or which anticipate such an administrative resolution, our responsibility is not to supplant the PUC's balance of interests with one more nearly to our liking." Appeal of Pennichuck Water Works, 160 N.H. 18, 26, 992 A.2d 740 (2010) (quotation omitted). "The statutory presumption, and the corresponding obligation of judicial deference are the more acute when we recognize that discretionary choices of policy necessarily affect such decisions, and that the legislature has entrusted such policy to the informed judgment of the PUC and not to the preference of reviewing courts." Id. (quotation and brackets omitted). However, "[w]hile we give the PUC's policy choices considerable deference, we do not defer to its statutory interpretation; we review the PUC's statutory interpretation de novo. " Id.

Before addressing the merits of FairPoint's appeal, we first consider the petitioners' contention that several of FairPoint's arguments are untimely and should be dismissed because FairPoint did not move for rehearing within thirty days of each of the PUC orders giving rise to these arguments. In support of their position, the petitioners cite RSA 541:3, :4, :6 (2007), and the Note to New Hampshire Supreme Court Rule 10(1), which provides that to appeal an administrative agency order under RSA chapter 541, "the appealing party must have timely filed for a rehearing with the administrative agency." We note that motions for rehearing and appeals of PUC orders are governed by RSA chapter 541 except as otherwise provided. See RSA 365:21 (2009); Appeal of Office of Consumer Advocate, 148 N.H. 134, 135–36, 803 A.2d 1054 (2002).

Resolution of this issue requires statutory interpretation. We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Appeal of Pennichuck Water Works, 160 N.H. at 27, 992 A.2d 740. We interpret statutes not in isolation, but in the context of the overall statutory scheme. Id. Our analysis must start with consideration of the plain meaning of the relevant statutes, construing them, when reasonably possible, to effectuate their underlying policies. Id. Insofar as reasonably possible, we will construe the various statutory provisions harmoniously. Id.

Based upon our review of RSA chapter 541, we reject the petitioners' argument. RSA 541:3 provides that an application for rehearing may be made within thirty days of "any order or decision" and may include arguments related to "any matter determined in the action or proceeding, or covered or included in the order." (Emphasis added.) RSA 541:4, in turn, provides that "[n]o appeal from any order or decision of the commission shall be taken unless the appellant shall have made application for rehearing as herein provided," and that "no ground not set forth therein shall be urged, relied on, or given any consideration by the court, unless the court for good cause shown shall allow the appellant to specify additional grounds." RSA 541:6 provides that "[w]ithin thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the decision on such rehearing, the applicant may appeal by petition to the supreme court." When read together, these sections establish that arguments may be raised on appeal if they relate to "any matter determined in the action or proceeding," were included in an application for rehearing within thirty days of "any order or decision," and the agency's ruling on the application was timely appealed to this court. When statutory language is clear, its meaning is not subject to modification. See Rainville v. Lakes Region Water Co., 163 N.H. 271, 274, 37 A.3d 403 (2012). We find nothing in the statutory scheme that supports the petitioners' contention that FairPoint was required to move for rehearing of every PUC order that gave rise to the arguments it has raised on appeal. The record demonstrates that FairPoint timely moved for reconsideration of the orders at issue. Accordingly, we address FairPoint's arguments in turn.

FairPoint first argues that the PUC erred because it ordered FairPoint to submit tariff revisions that were "outside the scope of this proceeding." FairPoint relies upon a procedural order from November 2006 in which the PUC stated that it would not consider modification of the Tariff in the present proceeding. We are not persuaded by this argument.

In an order dated May 4, 2011, the PUC determined that, notwithstanding the November 2006 procedural order, "administrative convenience" dictated that it would consider modification of the Tariff without "assign[ing] a separate docket number to the proceeding." In PUC parlance, a proceeding is a "docketed case commenced by the [PUC]." N.H. Admin. Rules, Puc 102.16. FairPoint has not challenged this reasoning. Accordingly, we conclude that FairPoint has failed to demonstrate that the PUC's decision to order tariff revisions in the same proceeding was unjust or unreasonable. See Appeal of Bretton Woods Tel. Co., 164 N.H. at 386 n. 3, 56 A.3d 1266 (finding party failed to demonstrate error because it did not challenge the PUC's reasoning). Although FairPoint has raised other arguments about why the tariff revisions ordered by the PUC were outside the scope of the proceeding, we do not consider these arguments because they were not included in FairPoint's motion for reconsideration. See RSA 541:4 ; see, e.g., Appeal of Coffey, 144 N.H. 531, 533, 744 A.2d 603 (1999) ("Issues not raised in the motion for...