Northwestern Bell Telephone Co., Inc. v. Public Utilities Com'n of State of S.D., Nos. 16921

CourtSupreme Court of South Dakota
Writing for the CourtJOHNSON; MILLER, C.J., HENDERSON and SABERS, JJ., and MORGAN; JOHNSON, Circuit Judge, for WUEST; AMUNDSON
Citation467 N.W.2d 468,124 P.U.R.4th 179
Parties, Util. L. Rep. P 26,054 NORTHWESTERN BELL TELEPHONE COMPANY, INC., d/b/a US West Communications, Appellant, v. PUBLIC UTILITIES COMMISSION OF the STATE OF SOUTH DAKOTA, Appellee, and Lightwave Associates, a Joint Venture, and Sully Buttes Telephone Company, Intervenors. . Considered on Briefs
Decision Date25 October 1990
Docket NumberNos. 16921,16933

Page 468

467 N.W.2d 468
124 P.U.R.4th 179, Util. L. Rep. P 26,054
NORTHWESTERN BELL TELEPHONE COMPANY, INC., d/b/a US West
Communications, Appellant,
v.
PUBLIC UTILITIES COMMISSION OF the STATE OF SOUTH DAKOTA, Appellee,
and
Lightwave Associates, a Joint Venture, and Sully Buttes
Telephone Company, Intervenors.
Nos. 16921, 16933.
Supreme Court of South Dakota.
Considered on Briefs Oct. 25, 1990.
Decided March 13, 1991.

Thomas J. Welk of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, William P. Heaston, Omaha, Neb., for appellant Northwestern Bell.

Richard D. Coit, Pierre, (Roger Tellinghuisen, Atty. Gen., on the brief), for appellee PUC.

Richard J. Helsper, Brookings, Benjamin H. Dickens, Jr., Blooston, Mordkofsky, Jackson & Dickens, Washington, D.C., for intervenor Lightwave Associates.

Page 469

JOHNSON, Circuit Judge.

US West Communications (USWC) appeals a circuit court judgment affirming the decision of the South Dakota Public Utilities Commission (PUC). PUC ruled that Lightwave Associate's (Lightwave) fiber optic facility is a nonaccess facility which crosses the territory being lawfully occupied and served by another telecommunications company furnishing adequate service; therefore, PUC ruled that the facility is exempt from a public interest determination pursuant to SDCL 49-31-20 and 49-31-21. Lightwave filed a notice of review asserting that PUC lacked jurisdiction. We affirm the circuit court's decision as to jurisdiction. We reverse the circuit court's decision that the facility is exempt from a public interest determination and we remand to PUC for a public interest determination.

FACTS

This action involves an application by Lightwave, a joint venture between the City of Brookings and Sioux Valley Telephone Cooperative, to build a fiber optic toll facility between the cities of Brookings and Sioux Falls. The facility was built through the local exchange franchise territories of several other companies. The facility terminates in USWC's service territory and is intended to carry only interstate telecommunications traffic to and from American Telephone and Telegraph's (AT & T) point of presence in Sioux Falls. Previously, the telecommunications link between Lightwave and AT & T was provided by USWC.

A brief discussion of the procedural history is necessary. On March 31, 1988, PUC determined that it had jurisdiction over this matter, but did not exert jurisdiction as long as the facility carried only interstate traffic. USWC appealed this decision to circuit court. At the request of both parties, the matter was remanded to PUC for a hearing to determine if PUC had jurisdiction.

On October 18, 1988, PUC determined it had jurisdiction over the facility and ordered an evidentiary hearing to consider whether the facility should be built. The evidentiary hearing was completed on March 15, 1989. By a 2--1 vote, (Commissioner Stofferahn dissenting) PUC decided to allow the facility to be constructed without consideration of the public interest. PUC determined that the facility was a "nonaccess" facility, the facility crossed several service territories including USWC's territory, and, thus was not subject to a public interest determination under SDCL 49-31-20 and 49-31-21. USWC appealed to circuit court. On October 27, 1989, the circuit court affirmed the PUC decision in all respects 1.

USWC now appeals to this court and Lightwave raises an additional issue of whether PUC correctly asserted jurisdiction over the facility.

SCOPE OF REVIEW

SDCL 1-26-37 controls this court's scope of review from decisions of administrative agencies. We review the agency decision in the same manner as the circuit court and there is no presumption that the circuit court's decision is correct. Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (1986). Thus, we determine, after reviewing the entire record, whether the agency's findings of fact are clearly erroneous and whether the law has been correctly applied. Permann v. South Dakota Dept. of Labor Unempl. Ins. D., 411 N.W.2d 113 (1987).

ISSUE I.

WHETHER PUC ERRED IN ASSERTING JURISDICTION OVER LIGHTWAVE'S PROPOSED FIBER OPTIC FACILITY.

Page 470

This court has recently explored the dual regulatory structure of the wire communications industry with respect to the PUC's jurisdiction. In American Phone v. Northwestern Bell Tel., 437 N.W.2d 175, 177 (S.D.1989) the court stated:

The operative question, however, is whether the PUC is precluded from assuming jurisdiction by mandate of the Communications Act of 1934 which creates a dual regulatory structure in respect to wire communications. Interstate communications are governed by the FCC (47 U.S.C. Sec. 151 (1982)), and intrastate communications are regulated by the states (47 U.S.C. Sec. 152(b) (1982)). 47 U.S.C. Sec. 152(b)(1) provides that the states are free to govern "charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication[s] ..."

In Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) the United States Supreme Court interpreted Sections 151 and 152(b). The court recognized that telephone service cannot, given today's technology and economics, be cleanly divided into interstate and intrastate components. In practice, a telephone plant is used to provide both interstate and intrastate service, and thus some cases may be within the jurisdiction of both state and federal authorities. In determining whether a state may exercise jurisdiction, the question to be addressed is whether assumption of jurisdiction would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Under 47 U.S.C. 152(b), the FCC is deprived of regulatory power over telephone service which, in their nature, are separable from and do not substantially affect the conduct or development of interstate communications. North Carolina Util. Com'n v. F.C.C., 537 F.2d 787 (4th Cir.1976).

We conclude that PUC's assertion of jurisdiction in this dispute does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress which are "to make...

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7 practice notes
  • In re Montana-Dakota Utilities Co., No. 24448.
    • United States
    • Supreme Court of South Dakota
    • October 17, 2007
    ...West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993) (citing Northwestern Bell v. Public Util. Comm'n, 467 N.W.2d 468, 469 (S.D.1991)). Neither do we defer "to the interpretation of the trial court, nor to the agency's conclusions of law." Id. Questi......
  • U.S. West Communications, Inc. v. Public Utilities Com'n of State of S.D., No. 17891
    • United States
    • Supreme Court of South Dakota
    • August 11, 1993
    ...determination and remanded the case to the PUC for the required public interest determination. Northwestern Bell v. Public Util. Com'n., 467 N.W.2d 468 The PUC held a hearing on whether the construction of the Lightwave facility was in the public interest and issued an order granting the co......
  • Appeal of Sioux Valley Hosp. Ass'n, No. 17993
    • United States
    • Supreme Court of South Dakota
    • March 16, 1994
    ...by using Black's Law Dictionary and Webster's New Twentieth Century Dictionary as guides. See Northwestern Bell v. Public Util. Comm'n, 467 N.W.2d 468 (S.D.1991); Lien v. Rowe, 77 S.D. 422, 92 N.W.2d 922 (1958). "Health care," per the trial court, became the "attention to mai......
  • Eide v. Oldham-Ramona School Dist. No. 39-5, OLDHAM-RAMONA
    • United States
    • Supreme Court of South Dakota
    • February 15, 1994
    ...113 (S.D.1987). Such review is made without any presumption that the circuit court's decision is correct. Northwestern Bell v. PUC, 467 N.W.2d 468, 469 (S.D.1991); SDCL 1-26-37. However, we give great weight to the findings made and inferences drawn by the Department on questions of fact. M......
  • Request a trial to view additional results
7 cases
  • In re Montana-Dakota Utilities Co., No. 24448.
    • United States
    • Supreme Court of South Dakota
    • October 17, 2007
    ...West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993) (citing Northwestern Bell v. Public Util. Comm'n, 467 N.W.2d 468, 469 (S.D.1991)). Neither do we defer "to the interpretation of the trial court, nor to the agency's conclusions of law." Id. Questi......
  • U.S. West Communications, Inc. v. Public Utilities Com'n of State of S.D., No. 17891
    • United States
    • Supreme Court of South Dakota
    • August 11, 1993
    ...determination and remanded the case to the PUC for the required public interest determination. Northwestern Bell v. Public Util. Com'n., 467 N.W.2d 468 The PUC held a hearing on whether the construction of the Lightwave facility was in the public interest and issued an order granting the co......
  • Appeal of Sioux Valley Hosp. Ass'n, No. 17993
    • United States
    • Supreme Court of South Dakota
    • March 16, 1994
    ...by using Black's Law Dictionary and Webster's New Twentieth Century Dictionary as guides. See Northwestern Bell v. Public Util. Comm'n, 467 N.W.2d 468 (S.D.1991); Lien v. Rowe, 77 S.D. 422, 92 N.W.2d 922 (1958). "Health care," per the trial court, became the "attention to mai......
  • Striegel v. South Dakota Dept. of Social Services, No. 18480
    • United States
    • Supreme Court of South Dakota
    • April 20, 1994
    ...of law. It is not in any way restricted or controlled by the agency's ruling or the circuit court's decision. Northwestern Bell v. PUC, 467 N.W.2d 468, 469 (S.D.1991); SDCL Medicaid is a federal program administered by the states and provides medical financial assistance to needy persons wh......
  • Request a trial to view additional results

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