Nebraska Public Service Com'n v. Nebraska Public Power Dist.

• Decision Date: 19 March 1999
• Docket Number: No. S-97-1367,S-97-1367
• Parties: NEBRASKA PUBLIC SERVICE COMMISSION, appellee, v. NEBRASKA PUBLIC POWER DISTRICT, appellant, and Nebraska Independent Telephone Association et al., intervenors-appellees.
• Court: Nebraska Supreme Court

Page 840

590 N.W.2d 840

256 Neb. 479

NEBRASKA PUBLIC SERVICE COMMISSION, appellee, v. NEBRASKA PUBLIC POWER DISTRICT, appellant and Nebraska Independent Telephone Association et al., intervenors-appellees.

No. S-97-1367.

Supreme Court of Nebraska.

March 19, 1999.

Syllabus by the Court

1. Public Service Commission: Administrative Law. The Nebraska Public Service Commission is an agency within the meaning of the Administrative Procedure Act, and the Administrative Procedure Act's provisions apply to the Nebraska Public Service Commission.

2. Administrative Law: Appeal and Error. In an appeal under the Administrative Procedure Act, an appellate court's standard of review is for errors appearing on the record.

3. Administrative Law: Legislature: Appeal and Error. If the Legislature has provided an appellate procedure other than the Administrative Procedure Act for appeals from an administrative agency, the Administrative Procedure Act does not apply; but to the extent that another method of appeal has not been provided, the Administrative Procedure Act controls.

4. Administrative Law: Appeal and Error. When the Administrative Procedure Act is inapplicable because another method of appeal has been prescribed and the standard of review has not otherwise been specified, the standard of review will be to search only for errors appearing on the record.

5. Public Service Commission: Appeal and Error. The appropriate standard of review for appeals from the Nebraska Public Service Commission is a review for errors appearing on the record.

6. Judgments: Appeal and Error. When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

7. Administrative Law: Statutes: Appeal and Error. The meaning of a statute is a question of law, and a reviewing court is obligated to reach its conclusions independent of the determination made by the administrative agency.

8. Judgments: Jurisdiction: Appeal and Error. The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.

9. Public Service Commission: Jurisdiction. Neb.Rev.Stat. § 75-109 (Reissue 1996) does not provide the Nebraska Public Service Commission with general statutory jurisdiction over all common and contract carriers; rather, such jurisdiction may be exercised only as provided by law.

10. Words and Phrases. The phrase "provided by law" means prescribed or provided by statute.

11. Public Service Commission: Jurisdiction. The Nebraska Public Service Commission may regulate and exercise general control over common and, by definition, contract carriers, only when such authority is provided for by some statute other than Neb.Rev.Stat. § 75-109 (Reissue 1996).

12. Public Service Commission. Neb.Rev.Stat. §§ 75-604 to 75-616 (Reissue 1996) and 86-801 to 86-811 (Reissue 1994) apply only to common carriers.

13. Constitutional Law: Statutes. Where a statute is susceptible of two constructions, under one of which the statute is valid while under the other it is unconstitutional or of doubtful validity, that construction which gives it validity should be adopted.

14. Constitutional Law: States: Administrative Law. The state cannot, consistent with constitutional guaranties against infringement upon private property rights, by legislative fiat or edict or by the orders of an administrative commission, arbitrarily impose the character or status of a common carrier upon a mere private carrier or other person who has not devoted his property to such a public use.

15. Constitutional Law: Public Service Commission: Jurisdiction. The Nebraska Public Service Commission has the inherent constitutional authority to regulate common carriers under article IV, § 20, of the Nebraska Constitution; however, the powers enumerated in article IV, § 20, apply only to common carriers.

16. Constitutional Law: Public Service Commission: Jurisdiction. The term "common carriers," as used in article IV, § 20, of the Nebraska Constitution, is coextensive with the meaning of that phrase at common law, and thus, the Nebraska Public Service Commission does not have constitutional authority over contract carriers.

17. Administrative Law: Legislature. In the absence of constitutional authority, an administrative agency has only that power which has been granted to it by the Legislature.

18. Legislature: Public Service Commission: Jurisdiction: Statutes. When the Legislature grants the Nebraska Public Service Commission jurisdiction over non-common carriers, the Nebraska Public Service Commission must exercise such authority completely within the statutory scheme.

James A. Eske and Kile W. Johnson, of Barlow, Johnson, Flodman, Sutter, Guenzel & Eske, Lincoln, and Harold L. Hadland, Columbus, for appellant.

Jack L. Shultz and Gregory D. Barton, of Harding, Shultz & Downs, Lincoln, for intervenors-appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Appellee the Nebraska Public Service Commission (PSC) initiated an investigation to determine whether it had jurisdiction over appellant, the Nebraska Public Power District (NPPD). The PSC determined that the NPPD was providing intrastate telecommunications services for hire as a contract carrier and that such carriers fell within the PSC's jurisdiction. We conclude that the PSC does not have jurisdiction over telecommunications contract carriers, and therefore, we reverse, and dismiss.

BACKGROUND

NPPD'S INTERNAL COMMUNICATIONS NETWORK

The NPPD is a public corporation and political subdivision of the State of Nebraska, SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998), which operates an electrical utility system and generates, transmits, distributes, and sells electricity within its chartered territory, Omaha Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 537 N.W.2d 312 (1995). To operate its electrical system, the NPPD requires an internal communications network, which is primarily designed to assist the NPPD in operating its protective equipment. The communications network is also used to transmit voice and data between the NPPD's offices. In the past, the NPPD and other utilities used 2 gigahertz band frequencies for analog microwave communications pursuant to Federal Communications Commission (FCC) licenses. However, in 1993, the FCC issued new rules providing policies and procedures for the mandatory and voluntary relocation of 2 gigahertz users to other frequencies on the spectrum. In response to the new FCC rules, the NPPD began converting its analog microwave network to a combination of digital microwave and fiber optics.

The fiber optics were integrated into the NPPD's overhead protection ground wire, or "shield wire." The high voltage lines used by the NPPD generally have three conductors, or "phase wires." A shield wire is situated above the phase wires to protect them from lightning strikes. The shield wire is metal and generally contains no fiber optics. However, since the NPPD and other utilities were required by the FCC to relinquish their 2 gigahertz microwave communications systems, shield wire manufacturers have put fiber optics on the inside of their metal shield wires. Shield wire containing fiber optics is thus able to protect phase wires from lightning strikes and transmit communications.

NORTHEAST COMMUNITY COLLEGE DISTANCE LEARNING NETWORK

The Northeast Community College (NCC) campus is located in Norfolk, Nebraska. Through affiliation agreements with public and private schools, community organizations, municipal entities, business and industry, and other organizations, the NCC provides educational and training offerings throughout northeast Nebraska. The NCC's outreach program offers instruction to off-campus students via television, onsite instruction, and interactive video distance learning programs.

In 1994, a consulting firm was hired by secondary and post-secondary educational institutions in the northeast Nebraska area to conduct a feasibility study of the region's telecommunications needs. As a result of the study, an interactive video distance learning program was developed to deliver educational programming from the NCC to the Niobrara Valley Partnership, consisting of 13 school districts; the Northeast Nebraska Telepartnership, consisting of 8 school districts; and the Elkhorn Valley Partnership, consisting of 8 school districts. The distance learning programs were delivered to these partnerships by U S West at a cost of $18,420 per year.

However, the consulting firm's study indicated that the cost of providing distance learning programs to the South Sioux City area was prohibitive, since that area was in another local access transport area, or LATA. See Neb.Rev.Stat. § 86-802(9) (Reissue 1994). See, also, State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 N.W.2d 284 (1989) (explaining LATA's). Due in part to the toll charges involved in crossing a LATA "boundary," it was expected to cost $47,148 a year to provide distance learning programs to South Sioux City. Thus, according to the NCC's calculations, it would have cost 2.6 times more to provide distance learning programs to one site than it cost to reach 29 other sites.

During the course of the consulting firm's study, it was discovered that the NPPD was upgrading and replacing a service line running from its Norfolk substation to the IBP plant substation in Dakota City and that the shield wire in the NPPD's upgraded line would contain fiber optics. The NPPD's new fiber optic line would cross the LATA boundary and would not be subject to toll charges.

The NCC contacted the NPPD to determine whether there would be enough reserve capacity in the NPPD's fiber optic...