McLeod Telemanagement, Inc. v. U S West Communications, Inc.

583 N.W.2d 39, 255 Neb. 202, 1998 Neb. LEXIS 195
CourtNebraska Supreme Court
DecidedAugust 14, 1998
DocketNo. S-97-112
StatusPublished
Cited by1 cases

This text of 583 N.W.2d 39 (McLeod Telemanagement, Inc. v. U S West Communications, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McLeod Telemanagement, Inc. v. U S West Communications, Inc., 583 N.W.2d 39, 255 Neb. 202, 1998 Neb. LEXIS 195 (Neb. 1998).

Opinion

White, C.J.

This case involves the combined appeal of McLeod Telemanagement, Inc. (McLeod), MCI Telecommunications Corporation (MCI), and AT&T Communications of the Midwest, Inc. (AT&T) (collectively appellants), from the opinion and findings of the Nebraska Public Service Commission (PSC) on appellants’ three formal complaints alleging U S West Communications, Inc. (U S West), illegally grandfathered its Centrex Plus telecommunications service in contravention of both state law and the federal Telecommunications Act of 1996, 47 U.S.C.A. § 151 et seq. (West 1991 & Supp. 1998). We [204]*204removed this case to our docket pursuant to our authority to regulate the caseloads of the Nebraska Court of Appeals and this court. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).

U S West is authorized to provide local telephone service in the Nebraska market. In conducting business as a local exchange carrier, U S West has developed various telecommunications services designed to benefit the telecommunications needs of businesses. One such service is Centrex Plus. Centrex Plus is a central-office-based switching service designed to meet the needs of U S West’s business customers utilizing 2 to 100-plus lines. The system operates within a U S West central office and offers calling features such as call hold, call transfer, and three-way calling.

On February 5,1996, U S West filed a rate list with the PSC. Through filing the rate list, U S West announced its intention to partially withdraw Centrex Plus from the Nebraska market by grandfathering the service for existing customers. Pursuant to the PSC’s telecommunications rules and regulations, U S West’s rate list would become effective on February 16. The rate list also revealed that U S West would discontinue offering Centrex Plus to new telecommunications customers once the rate list became effective. In addition to the grandfathering announcement, U S West also announced its intention to introduce a successor service to the retail market within 6 to 9 months from removing Centrex Plus from the market. As of December, U S West had not introduced a service to replace Centrex Plus.

On February 8, 1996, the federal Telecommunications Act became effective. The act was passed to facilitate the entry of competing companies into local telephone-service markets across the country. See, Iowa Utilities Bd. v. F.C.C., 120 F.3d 753 (8th Cir. 1997), cert. granted, AT&T Corp. v. Iowa Utilities Board, 522 U.S. 1089, 118 S. Ct. 879, 139 L. Ed. 2d 867 (1998); GTE South Inc. v. Morrison, 957 F. Supp. 800 (1997). To facilitate such entry, the act requires each incumbent local exchange carrier (ILEC), such as U S West, to offer for resale at wholesale rates any telecommunications service which an ILEC sells at retail to subscribers who are not telecommunications carriers. See § 251. The act also prevents any unreasonable or discriminatory limitations on the resale of such services. Id.

[205]*205On February 12, 1996, McLeod and MCI objected to U S West’s withdrawal of Centrex Plus by filing virtually identical formal complaints with the PSC. On March 21, AT&T also objected to U S West’s withdrawal of Centrex Plus by filing a complaint similar to those complaints filed by McLeod and MCI. The complaints set forth appellants’ general allegation that U S West’s grandfathering of Centrex Plus was discriminatory and contrary to federal and state law. The complaints also set forth appellants’ specific allegations that U S West’s act of withdrawing the availability of Centrex Plus to new customers violated § 251(b)(1), (c)(2), and (c)(4) of the act. The complaints further allege that the “primary effect” of U S West’s withdrawal of Centrex Plus precludes McLeod, MCI, and “other prospective customers from offering local exchange service in Nebraska by reselling Centrex Plus service.”

At the time that McLeod and MCI filed their complaints with the PSC, neither corporation had filed an application for authority to provide local exchange service in Nebraska. Even though AT&T had filed an application for authority to provide local exchange service in Nebraska, its application was still pending at the time it filed a formal complaint with the PSC. The record does not reveal whether AT&T has been authorized to provide local service in Nebraska.

On May 30, 1996, the PSC held a hearing on the issues presented by appellants’ formal complaints. On November 25, the PSC, in a 4-to-l decision, partially sustained and partially denied appellants’ formal complaints. On December 13, appellants filed a joint motion for rehearing. On January 13, 1997, the PSC denied appellants’ motion. Appellants timely appealed, and we removed this case to our docket.

In appealing the decision of the PSC, AT&T filed a separate brief from that of McLeod and MCI. The substance of the assertions set forth in AT&T’s assignments of error is virtually identical to that of the errors assigned by McLeod and MCI. Therefore, we shall consider appellants’ assignments of error collectively. Appellants assert, restated, that the PSC erred in (1) holding that U S West’s partial withdrawal of Centrex Plus did not violate state law, (2) holding that U S West could partially withdraw Centrex Plus by filing a rate list with the PSC [206]*206rather than filing a tariff change, (3) holding that U S West’s partial withdrawal of Centrex Plus was not an unreasonable and discriminatory condition or limitation on the resale of a telecommunications service, in violation of § 251(b)(1) and (c)(4)(B) of the act, and (4) failing to make a determination whether the PSC’s decision authorizing U S West to partially withdraw Centrex Plus prohibits McLeod, MCI, and AT&T from providing intrastate telecommunications service, in violation of § 253(a) of the act.

In an appeal from the PSC, an appellate court examines the record to determine whether the PSC acted within the scope of its authority and whether the evidence establishes that the order in question is not unreasonable or arbitrary. In re Application of Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994); Fecht v. Quality Processing, 244 Neb. 522, 508 N.W.2d 236 (1993).

Appellants’ first assignment of error sets forth their assertion that U S West’s partial withdrawal of Centrex Plus violates state law. Before considering the merits of appellants’ arguments, it is the duty of this court to determine whether we have jurisdiction over the subject matter of this case, regardless of whether the parties have questioned the jurisdiction of the lower court or tribunal. In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996). A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Bonge v. County of Madison, 253 Neb. 903, 573 N.W.2d 448 (1998). As a result, this court is required to reach a conclusion independent from the lower court’s decision.

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Related

In RE McLEOD TELEMANAGEMENT, INC.
583 N.W.2d 39 (Nebraska Supreme Court, 1998)

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Bluebook (online)
583 N.W.2d 39, 255 Neb. 202, 1998 Neb. LEXIS 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcleod-telemanagement-inc-v-u-s-west-communications-inc-neb-1998.