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Enhanced Communications of Northern New England, Inc. v. Public Utilities Commission

Supreme Court of Maine

August 15, 2017

ENHANCED COMMUNICATIONS OF NORTHERN NEW ENGLAND, INC.
v.
PUBLIC UTILITIES COMMISSION et al.

          Argued: April 11, 2017

          Sean M. Galvin, Esq., FairPoint Communications, Manchester, New Hampshire, and Catherine R. Connors, Esq. (orally), Pierce Atwood LLP, Portland, for appellant Enhanced Communications of Northern New England, Inc.

          Jordan D. McColman, Esq. (orally), and Mitchell M. Tannenbaum, Esq., Public Utilities Commission, Augusta, for appellee Public Utilities Commission

          Robin A. Casey, Esq., Enoch Kever PLLC, Harpswell, for appellee Time Warner Cable Information Systems, LLC

          Elizabeth J. Wyman, Esq. (orally), and Robert A. Creamer, Esq., Office of the Public Advocate, Augusta, for appellee Office of the Public Advocate

          Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶1] Enhanced Communications of Northern New England, Inc., appeals from an order of the Public Utilities Commission granting in part and denying in part a petition for a certificate of public convenience and necessity to operate as a competitive local exchange carrier. See 35-A M.R.S. §§ 2102, 2105 (2016). Enhanced contends that the Commission's partial denial is unlawful and unsupported by substantial evidence. We affirm the order.

         I. BACKGROUND

         [¶2] Enhanced is a Delaware corporation that sells communications services, including long distance telephone and data services, and is a wholly-owned direct subsidiary of FairPoint Communications, Inc. FairPoint is an incumbent local exchange carrier (ILEC). On June 23, 2015, Enhanced filed a petition with the Commission pursuant to 35-A M.R.S. § 2102 to obtain a certificate of public convenience and necessity to furnish telecommunications service as a competitive local exchange carrier (CLEC).[1]Because an application by a CLEC to operate in the same regional service territory as an affiliated ILEC presented a novel issue, on August 13, 2015, the Commission held an informal technical conference to gather information about intended service plans and the relationship between Enhanced and FairPoint.[2] Several parties and stakeholders attended the informal technical conference, including representatives from FairPoint, the Office of the Public Advocate (OPA), Time Warner Cable (TWC), and the CLEC Association of Northern New England (CANNE). OPA, TWC, and CANNE all submitted comments to the Commission regarding Enhanced's petition.

         [¶3] On March 21, 2016, the Commission staff recommended that the Commission grant Enhanced's petition to the extent that Enhanced would be allowed to operate as a CLEC in all Maine exchanges except for those in which FairPoint, or an affiliate or subsidiary, already provided service as an ILEC. On June 20, 2016, the Commission issued an order largely adopting the recommended decision, granting Enhanced's petition in part, but denying it to the extent that Enhanced sought to provide service as a CLEC in service areas where FairPoint, or an affiliate or subsidiary, already provided service as an ILEC.

         [¶4] The Commission found that Enhanced (1) satisfied the definition of a local exchange carrier because it will provide local exchange service in Maine, (2) possessed the financial and technical capabilities to provide local exchange service in the state, and (3) satisfied the definition of a CLEC because it is not an ILEC. The Commission noted, however, that whether the public convenience and necessity required that Enhanced provide service as a CLEC throughout Maine "present[ed] a complicated question" because an entity wholly-owned by an ILEC seeking to provide service in the same service territory as that ILEC was a matter of first impression.

         [¶5] The Commission observed that if Enhanced provided service in the same service territories as FairPoint, it was not clear that a benefit would be realized in the form of increased competition. The Commission articulated several concerns raised by the parties, including that, because of its corporate relationship with FairPoint, Enhanced could gain favorable access and use of common facilities and resources, customer data, pricing, prioritization of service calls, and other competitive advantages over other CLECs. The Commission found, according to Enhanced's representations at the conference, that Enhanced's petition to obtain CLEC authorization was not motivated by a desire to provide new or additional service to customers- "Enhanced identified only a single activity that its current lack of CLEC authorization prohibits: the ability to requisition local telephone numbering resources, " in particular "thousand-number blocks of consecutive telephone numbers."[3] The Commission acknowledged that "[a]ccess to numbering resources by LECs is subject to [Federal Communication Commission] rules and the guidelines established by [the North American Numbering Plan Administrator], which are designed to preserve limited numbering resources, " but concluded, citing a longstanding Commission policy to use number resources efficiently to preserve the single 207 area code in Maine, that it was not in the public convenience and necessity to grant Enhanced's petition to operate throughout the entire state. The Commission therefore partially denied the petition insofar as Enhanced sought to operate in the same territory as FairPoint, and emphasized that the partial denial alleviated the competition concerns raised by parties in the informal technical conference. The Commission concluded by stating:

The Commission's partial dismissal of Enhanced's petition is without prejudice to file, in a separate Docket, another petition specifically requesting authority to operate within the service territories of the FairPoint ILECs. Any such petition should address the anti-competitive and numbering concerns raised by the Commission and the parties to this proceeding.

         [¶6] Enhanced filed a petition to reconsider the decision on July 11, 2016. The Commission did not act upon the petition and thus it was denied by operation of law on August 1, 2016. See 9 C.M.R. 65 407 110-12 ยง 11(D) (2013). ...


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