Bosley v. Department of Public Utilities

631 N.E.2d 47, 417 Mass. 510, 1994 Mass. LEXIS 201
Massachusetts Supreme Judicial Court·Decided April 12, 1994·Published

Opinion

Liacos, C.J.

This case comes to us on reservation and report from the single justice. The plaintiff, Massachusetts State Representative for the First Berkshire District, Daniel [511] E. Bosley,2 asks this court to modify or set aside D.P.U. 90-308, an order of the Department of Public Utilities (depart-' ment) which denied Bosley’s request to expand the primary calling area of the North Adams telephone exchange to include toll-free calling to Pittsfield. Bosley principally argues that the department committed error of law, and acted arbitrarily and capriciously, and abused its discretion when it refused to allow his request. We disagree, and affirm the department’s order.

In June, 1990, the department issued an order, New England Tel. & Tel. Co., D.P.U. 89-300. This order was the culmination of a four-year investigation into New England Telephone and Telegraph Company’s (NET’s) costs and rates, and resulted in a comprehensive restructuring of NET’s rates throughout the Commonwealth. In the order, the department adopted a so-called “home and contiguous” standard to define the primary calling area (PCA) for telephone customers. A PCA for any particular telephone exchange consists of the exchanges that a customer subscribing to basic unlimited service may call without incurring a toll charge. The “home and contiguous” standard refers to the customer’s home exchange and all geographically contiguous exchanges. The PCA of customers in the North Adams exchange (which includes the towns of North Adams, Clarksburg, and Florida) was expanded to include the contiguous Charlemont exchange. It did not include the Pittsfield exchange because it is not contiguous.

In October, 1990, Bosley wrote to the department, requesting that it reopen D.P.U. 89-300. The department’s rules did not allow the case to be reopened; instead, the department opened a new investigation into Bosley’s request. The department held a public hearing in North Adams on December 13, 1990. Approximately eighty-five persons attended the hearing, including Bosley. During the hearing, testimony was [512] presented regarding the social and economic ties between the North Adams area and the Pittsfield area, and the disadvantages posed to residents in the North Adams exchange, compared to the other residents of Berkshire County, in not having toll-free calling to Pittsfield.

NET, an intervener in the case, presented one witness at the hearing. The staff director of rates and tariffs for Massachusetts testified that, since the restructuring in the rate system brought on by D.P.U. 89-300, the rates for toll calls from North Adams to Pittsfield had decreased significantly. He also testified that the home and contiguous standard expanded the PCA of North Adams to include the Charlemont exchange, and that customers in the North Adams exchange may call toll free to police, fire, hospitals, schools, and various State agencies.

Under the provisions of G. L. c. 159, § 16 (1992 ed.), the department may order NET to make changes in service if the department finds such service to be “unjust, unreasonable, unsafe, improper or inadequate.” Before ordering a change, the department must consider “the relative importance and necessity of the changes . . . the financial ability of the carrier to comply with the requirements of the order, and the effect of . . . such other changes, if any, as may be deemed by the department of equal or greater importance and necessity in the performance of the service . . . .” G. L. c. 159, § 16.

The department concluded that the existing service is not unjust or inadequate, and therefore denied the request to reopen D.P.U. 89-300. The plaintiff complains that this decision was arbitrary, capricious, and an abuse of discretion, not supported by substantial evidence, and made in violation of certain procedural requirements. See Wolf v. Department of Pub. Utils., 407 Mass. 363, 367 (1990).

Bosley claims that the “great inequity” which results from residents in the North Adams exchange having to pay to call Pittsfield, while other residents of northern Berkshire County do not, renders the department’s decision arbitrary, capricious, and an abuse of discretion. We cannot agree. In [513] D.P.U. 90-308, the department explained that in D.P.U. 89-300, it had determined that a reasonable PCA would consist of a customer’s home and contiguous exchanges. It restated why this conclusion was a proper balance of customers’ interests in expansive PCAs against the advantages of a comprehensive rate structure that was cost-based, fair, ensured rate continuity for customers and earnings stability for NET, and protected universal service. The department recognized that customers in the North Adams exchange have strong social and economic ties to Pittsfield (and, implicitly, a strong interest in calling there toll free), but it made a decision, which can hardly be characterized as arbitrary, capricious, and an abuse of discretion, that the lower rates resulting from the adoption of the comprehensive “home and contiguous” standard were, over-all, the better result.

The department is better equipped than this court to balance the competing interests in such cases, and we afford it substantial deference in doing so. See Zachs v. Department of Pub. Utils., 406 Mass. 217, 225 (1989), quoting Seagram Distillers Co. v. Alcoholic Beverages Control Comm’n, 401 Mass. 713, 721 (1988). A decision is not arbitrary and capricious simply because it results in perceived “inequities.” The fact is that all customers in northern Berkshire County have a PCA consisting of their home and contiguous exchanges. Not all can call the Charlemont exchange toll free, as those in the North Adams exchange can. That North Adams customers present convincing reasons why they have little need to call Charlemont but significant need to call Pittsfield, does not persuade us that the department’s decision was arbitrary, capricious, and an abuse of discretion. The department’s proffered reason — a comprehensive system and the over-all reduction in rates provided by that system — amply justifies the department’s decision.

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Bosley v. Department of Public Utilities, 631 N.E.2d 47, 417 Mass. 510, 1994 Mass. LEXIS 201 (Mass. 1994).

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