State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 105 Ohio St.3d 177 (OH 3/30/2005)

• Decision Date: 30 March 2005
• Docket Number: Case No. 2004-1122.
• Citation: 2005 Ohio 1150,105 Ohio St.3d 177
• Parties: The State ex rel. Cincinnati Bell Telephone Company v. Public Utilities Commission of Ohio.
• Court: Ohio Supreme Court

Page 1

105 Ohio St.3d 177

2005 Ohio 1150

The State ex rel. Cincinnati Bell Telephone Company v. Public Utilities Commission of Ohio.

Case No. 2004-1122.

In the Supreme Court of Ohio.

Submitted January 11, 2005.

Decided March 30, 2005.

In Mandamus.

Frost Brown Todd, L.L.C., and Douglas E. Hart, for relator.

Jim Petro, Attorney General, Duane Luckey, Senior Deputy Attorney General, Steven T. Nourse and Matthew J. Satterwhite, Assistant Attorneys General, for respondent.

Vorys, Sater, Seymour & Pease, L.L.P., Michael Thomas and Stephen M. Howard, urging dismissal on behalf of amicus curiae, Time Warner Cable Information Services (Ohio), L.L.C.

PER CURIAM.

{¶ 1} On November 5, 2003, Time Warner Cable Information Services (Ohio), L.L.C. ("Time Warner"), applied to respondent, Public Utilities Commission of Ohio, for a certificate of public convenience and necessity authorizing Time Warner to provide local and interexchange voice services in Ohio using Voice over Internet Protocol ("VoIP"). VoIP "allows customers to place and receive voice transmissions routed over the Internet." Vonage Holdings Corp. v. Minnesota Pub. Util. Comm. (D.Minn.2003), 290 F.Supp.2d 993, 995. "Traditional telephone companies use circuit-switched technology. * * * A person using a traditional telephone, or plain old telephone service (`POTS'), is connected to the public switched telephone network (`PSTN'), which is operated by local telephone companies. Voice communication using the Internet has been called Internet Protocol (`IP') telephony, and rather than using circuit switching, it utilizes `packet switching,' a process of breaking down data into packets of digital bits and transmitting them over the Internet." Id. at 995.

{¶ 2} In November 2003, various entities, including relator, Cincinnati Bell Telephone Company ("Cincinnati Bell"), moved to intervene in Time Warner's case, which was designated as commission case No. 03-2229-TP-ACE. Cincinnati Bell opposed Time Warner's application on the basis that Time Warner should be subject to the same regulatory requirements as local exchange telephone companies.

{¶ 3} On December 17, 2003, the commission deferred the resolution of Time Warner's application until the commission decides case No. 03-950-TP-C0I, In re Comm. Investigation into Voice Services Using Internet Protocol, which is the commission's generic investigation into its jurisdiction over VoIP providers, the resolution of which, it said, may be affected by litigation and federal regulation. The commission further authorized Time Warner to provide the VoIP services specified in its application pending resolution of case No. 03-950.

{¶ 4} On January 16, 2004, Cincinnati Bell applied for a rehearing of the commission's December 17, 2003 order. Cincinnati Bell raised several grounds in alleging that the commission had acted unreasonably and unlawfully by "authorizing [Time Warner] to provide telephone service in Ohio without a certificate of public convenience and necessity," by "providing [Time Warner] with unjustified regulatory advantages," and by "not requiring [Time Warner] to comply with equal access rules which, by statute, are not waivable."

{¶ 5} On February 11, 2004, the commission, by entry, denied Cincinnati Bell's and the other entities' applications for rehearing. The commission noted that despite the language in its December 17, 2003 entry authorizing Time Warner to provide VoIP services, it had not granted Time Warner's certification application or any operating authority:

{¶ 6} "In our December 17, 2003 Entry, we merely meant to convey that, pending the resolution of the jurisdictional issue, [Time Warner] should retain not unlike each of these other entities [using VoIP], its ability to operate in the manner of its own choosing, and that [Time Warner's] ability to do so should not be impacted by the fact that it has, unlike most of these other entities, filed a certification application in which it publicly notified the Commission of the manner in which it intends to operate and of its intent to substantially comply with our rules."

{¶ 7} On March 12, 2004, Cincinnati Bell filed another application for rehearing in the Time Warner case, this time seeking rehearing of the commission's February 11, 2004 entry denying Cincinnati Bell's first application for rehearing. Cincinnati Bell claimed that the commission erred because it "fails to recognize that [Time Warner] would be a telephone company under Ohio law," "implies that [Time Warner] may operate as a telephone company without a certificate of public convenience and necessity," and "implies that [Time Warner] may operate out of compliance with the Commission's rules without waivers." Cincinnati Bell specified that it was challenging the commission's February 11, 2004 order on rehearing rather than the commission's December 17, 2003 order. Cincinnati Bell's second application for rehearing was denied by operation of law because the commission took no action on it within 30 days of its filing. See R.C. 4903.10.

{¶ 8} On June 9, 2004, Cincinnati Bell filed a notice of appeal in this court from the commission's February 11, 2004 entry on rehearing and the denial by operation of law of Cincinnati Bell's March 12, 2004 application for rehearing. On that same day, Cincinnati Bell filed a copy of its notice of appeal with the commission's docketing division, which docketed it in the Time Warner case. Although the docketing division required only one copy of a notice of appeal, Cincinnati Bell's counsel left several extra copies of the notice of appeal with the docketing division in order to provide the required service. A clerk with the docketing division informed Cincinnati Bell's attorney that a copy would be distributed to the office of the commission's counsel . . . the Attorney General.

{¶ 9} Cincinnati Bell's notice of appeal included an attached certificate of service certifying service of the notice on the parties' counsel in the Time Warner case by U.S. mail, but it did not certify that service had been perfected on the chairman of the commission, any commissioner, or the Attorney General. The appeal is captioned as Cincinnati Bell Tel. Co. v. Pub. Util. Comm., case No. 2004-0925. The commission did not transmit a transcript of the proceeding in the Time Warner case (case No. 03-2229-TP-ACE) within 30 days of service of the notice of appeal.

{¶ 10} On July 12, 2004, which was 33 days after service of its notice of appeal, Cincinnati Bell filed a complaint in this court. Cincinnati Bell requested a writ of mandamus to compel the commission to transmit to the clerk of this court a complete transcript of the proceeding in case No. 03-2229-TP-ACE for inclusion in the record in its appeal. On August 5, 2004, the commission moved to dismiss Cincinnati Bell's mandamus action. On that same date, Time Warner, as an amicus curiae, filed a memorandum in support of the commission's dismissal motion. On August 16, 2004, Cincinnati Bell filed a memorandum in opposition to the commission's dismissal motion, attaching an affidavit of its counsel, Douglas E. Hart, to its memorandum. The commission moved to strike the attached affidavit and related portions of the memorandum.

{¶ 11} On September 29, 2004, we granted the commission's motion to strike, denied the commission's motion to dismiss, and granted an alternative writ. State ex rel. Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 103 Ohio St.3d 1459, 2004-Ohio-5056, 815 N.E.2d 676. Cincinnati Bell subsequently filed its evidence, which included an affidavit of Hart that was similar to the one previously stricken and an affidavit of one of its vice presidents stating that on October 6, he personally served a copy of the June 9 notice of appeal on the commission chairman. The commission filed no evidence.

{¶ 12} This cause is now before the court for our consideration of the merits.

Mandamus: R.C. 4903.21 and S.Ct.Prac.R. V(4)

{¶ 13} In order to be entitled to the requested writ of mandamus, Cincinnati Bell must establish a clear legal right to the transmission of the commission transcript, a corresponding clear legal duty on the part of the commission to provide it, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 16.

{¶ 14} R.C. 4903.21 imposes a duty upon the commission to transmit to the clerk of this court a transcript of the commission proceedings upon service or waiver of service of the notice of appeal in accordance with R.C. 4903.13:

{¶ 15} "Upon service or waiver of the notice of appeal as provided in section 4903.13 of the Revised Code, the public utilities commission shall forthwith transmit to the clerk of the supreme court a transcript of the journal entries, the original papers or transcripts thereof, and a certified transcript of all evidence adduced upon the hearing before the commission in the proceeding complained of, which documents shall be filed in said court." (Emphasis added.)

{¶ 16} If the commission does not transmit the transcript within 30 days of service of the notice of appeal, the appellant may request a writ of mandamus within three days after the 30th day. S.Ct.Prac.R. V(4) ("The word `forthwith' as used in section 4903.21 of the Revised Code, providing that upon service or waiver of service of the notice of appeal the Public Utilities Commission shall forthwith transmit to the Clerk of the Supreme Court a complete transcript of the proceeding, shall mean a period of 30 days. If at the expiration of 30 days the transcript has not been filed, the appellant shall have an additional three days in which to file a complaint in the Supreme Court for a writ of mandamus to compel the Commission to file the transcript").

{¶ 17} Cincinnati Bell requests a writ of mandamus in accordance with S.Ct.Prac.R. V(4) and R.C. 4903.21. The commission asserts that the writ should be...