Appeal of Verizon New England, Inc.

889 A.2d 1027, 153 N.H. 50, 2005 N.H. LEXIS 181
CourtSupreme Court of New Hampshire
DecidedDecember 28, 2005
DocketNo. 2004-785
StatusPublished
Cited by5 cases

This text of 889 A.2d 1027 (Appeal of Verizon New England, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Verizon New England, Inc., 889 A.2d 1027, 153 N.H. 50, 2005 N.H. LEXIS 181 (N.H. 2005).

Opinion

DALIANIS, J.

Verizon New England, Inc. d/b/a Verizon New Hampshire (Telephone Company) appeals an order of the New Hampshire Public Utilities Commission (PUC) requiring the imputation of at least $23.3 million earned by the Telephone Company’s unregulated affiliate, Verizon Yellow Pages Company (Directory Company), for ratemaking purposes. We affirm.

The publication of telephone directories has been an integral part of the telecommunications business for over a century. Traditionally, telephone directories have been comprised of ‘White Pages,” an alphabetical listing of subscribers and their telephone numbers, and ‘Yellow Pages,” a section devoted to advertisements sold by the publisher. Prior to 1984, AT&T, through a regulated regional operating company, compiled, published and distributed telephone directories for New Hampshire “in house,” and Yellow Pages operations and revenues belonged entirely to the regional operating company. The Yellow Pages business earned the company “supra-competitive” profits. United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 193 (D.C. 1982), aff’d, 460 U.S. 1001 (1983). All revenues, expenses and assets associated with directory operations were included in the regulated books of the regional operating company.

In 1984, pursuant to a consent decree arising from major anti-trust litigation, AT&T divested itself of twenty-two regional operating companies, including the Telephone Company. See id. at 141, 222-25. The divested operating companies were permitted to retain their Yellow Pages print businesses. Id. at 194. At divestiture, the Telephone Company elected to transfer assets associated with directory operations to the Directory Company, a non-regulated affiliate.

Although the Telephone Company no longer published a telephone directory, it was still required to provide a compilation of subscriber listings — the “White Pages” — to all of its customers. N.H. Admin. Rules, PUC 405.04. The Telephone Company, therefore, entered into a directory [53]*53publishing agreement with the Directory Company (1984 DPA). Under the 1984 DPA, the Telephone Company granted the Directory Company the exclusive right during the term of the agreement to contact the Telephone Company’s subscribers for the purposes of soliciting and obtaining directory advertising for publication in telephone directories. The Directory Company agreed to compile, print and publish telephone directories for distribution to the Telephone Company’s subscribers, and further agreed to pay annual publishing fees to the Telephone Company. The agreement was to remain in force for five years, after which it would be automatically renewed on a yearly basis, subject to termination by either party on one year’s notice.

On July 12,1985, the PUC issued an order allowing the 1984 DPA to go into effect without modification. The PUC noted, however, that it would continue to monitor the relationship between the Telephone Company and the Directory Company, and it reserved the right to take further regulatory action as warranted. The order also directed the Telephone Company to provide the PUC with updated information about changes in the terms and conditions of the 1984 DPA, including information about income derived from Yellow Pages.

The 1984 DPA remained in effect from January 1, 1984, through December 30, 1990. In November 1990, the Telephone Company and the Directory Company entered into a Directory License Agreement, effective January 1, 1991 (1991 DLA), with the intent of replacing the 1984 DPA. The Telephone Company granted the Directory Company an exclusive license to use its name in soliciting directory advertising, as well as to use its name, slogans, and marks in publishing and distributing directories. The 1991 DLA also granted the Directory Company the exclusive right to designate its directories as the “official” directories of the Telephone Company. As consideration for this license, the Directory Company agreed to pay the Telephone Company an annual fee based upon the revenues generated by its telephone directory publishing endeavors.

The 1991 DLA, like the 1984 DPA it superseded, was to remain in force for five years, after which it would be automatically renewed on a yearly basis, subject to termination by either party on one year’s notice. The PUC, finding the agreement “just and reasonable,” issued an order on March 6,1991, approving it without modification.

In 1996, Congress adopted the Telecommunications Act of 1996, 47 U.S.C.A. §§ 151 et seq. (2001 & Supp. 2005), which, among other things, required telephone service providers to furnish subscriber list information “under nondiscriminatory and reasonable rates, terms and conditions” to any person requesting such information for directory publishing purposes. 47 U.S.C. § 222(e) (2000). The Telephone Company had followed such a [54]*54non-discriminatory policy from the time of the 1984 divestiture in its listings licensing agreements. On December 9, 1997, the Directory Company notified the Telephone Company that it was terminating the 1991 DLA as of January 1, 1999. It cited the “important changes in the relationships between telecommunications service providers and directory providers” required by the Telecommunications Act of 1996 as its primary motivation for doing so.

On December 23, 1998, the Directory Company and the Telephone Company executed an amendment to the 1991 DLA (1999 amendment), effective as of January 1,1999, allowing the 1991 DLA to remain in effect. Under the 1999 amendment, the exclusive licenses granted to the Directory Company were restricted to Maine, as were its obligations to make revenue sharing payments to the Telephone Company. The Telephone Company failed to file the 1999 amendment with the PUC. On December 24, 1998, the Directory Company notified the Telephone Company that it was postponing termination of the 1991 DLA to January 1,2000. On January 1,2000, the companies again postponed termination to March 31, 2000, to allow for more time to execute a new directory publishing agreement.

In early 2000, the Telephone Company and the Directory Company entered into a new directory publishing agreement (2000 DPA) and a listings license agreement (2000 LLA), which were filed with the PUC on March 8, 2000. Under the 2000 DPA, the Directory Company agreed to fulfill the Telephone Company’s continuing regulatory obligations with respect to the publication and distribution of telephone directories. The Directory Company was given the right to sell advertising “in any section” of the directories, and the Telephone Company would have no rights or interest in any revenues received by the Directory Company in connection with the sale of directory advertising.

The 2000 LLA granted the Directory Company a non-exclusive license to use the Telephone Company’s listing information for directory use, and the Telephone Company reserved the right to issue similar licenses to other parties. Unlike the 1984 DPA and the 1991 DLA, the 2000 LLA did not require the Directory Company to pay any fees or to share revenues from directory advertising sales as part of the licensing fee arrangement.

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Bluebook (online)
889 A.2d 1027, 153 N.H. 50, 2005 N.H. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-verizon-new-england-inc-nh-2005.