2008-645, APPEAL OF VERIZON NEW ENGLAND, INC. d/b/a VERIZON NEW HAMPSHIRE & a.

respondent Verizon New England, Inc. d/b/a Verizon New Hampshire. Alexander W. Moore, of Boston, Massachusetts, on the joint brief, for Middleton, P.A., of Portsmouth (Sarah B. Knowlton on the joint brief), and Weissmann on the joint brief and orally), and McLane, Graf, Raulerson & Munger, Tolles & Olson, LLP, of Los Angeles, California (Henry

orally, for intervenor AT&T Corporation. joint brief), and Jay E. Gruber, of Boston, Massachusetts, on the joint brief and Hinckley, Allen & Snyder, LLP, of Concord (Daniel M. Deschenes on the

Communications, and intervenor One Communications. orally), for the petitioner, Freedom Ring Communications, LLC d/b/a BayRing Orr & Reno, P.A., of Concord (Susan S. Geiger on the joint brief and to press. Errors may be reported by E-mail at the following address:

(New Hampshire Public Utilities Commission)

APPEAL OF VERIZON NEW ENGLAND, INC. d/b/a page is: http://www.courts.state.nh.us/supreme.

No. 2008-645 editorial errors in order that corrections may be made before the opinion goes Public Utilities Commission Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as supplant the [PUC’s] balance of interests with one more nearly to our liking.”

telephone services in New Hampshire. the order is unjust or unreasonable. RSA 541:13 ( 2007); the order is contrary to law or, by a clear preponderance of the evidence, that

anticipate such an administrative resolution, our responsibility is not to appeal followed.

competitor telephone companies that use Verizon’s network to provide ellipses and brackets omitted). While we give the PUC’s policy choices AT&T Corporation (collectively, the petitioners), to pay. The petitioners are seeking to set aside an order of the PUC has the burden of demonstrating that Appeal of Conservation Law Foundation, 1 27 N.H. 606, 616 (1986) (quotation, Communications (BayRing), intervenor One Communications, and intervenor

agency orders which seek to balance competing economic interests, or which toll calls. Following a hearing, the PUC ruled in the petitioners’ favor, and this We review certain PUC orders deferentially. “When . . . we are reviewing Verizon. N.H. at 56. presumed prima facie lawful and reasonable. RSA 541:13; see Verizon, 153 New England, 153 N.H. 50, 56 ( 2005). Findings of fact by the PUC are

that they cease billing other carriers for certain charges. We reverse. We first discuss the proper standard of review in this case. A party decision of the New Hampshire Public Utilities Commission (PUC) mandating petitioner Freedom Ring Communications, LLC d/b/a BayRing

investigate Verizon’s imposition of this charge upon certain local or “intrastate” reference, this opinion will refer to Verizon and FairPoint, collectively, as See Tariff No. 85, supra section 5. In 2006, BayRing petitioned the PUC to The charge at issue is called the “carrier common line access charge.”

Operations d/b/a FairPoint Communications – NNE (FairPoint), appeal a The dispute in this case is about a charge that Verizon has required

formerly offered by Verizon and are now offered by FairPoint. For ease of Tariff No. 85 is one of several tariffs that apply to the services that were http://www.puc.nh.gov/Regulatory/Tariffs/FairPointNo85AccessTariff.pdf. At issue is the PUC’s interpretation of NHPUC Tariff No. 85, available at

Verizon New Hampshire (Verizon) and Northern New England Telephone DALIANIS, J. The respondents, Verizon New England, Inc. d/b/a

LLC d/b/a FairPoint Communications - NNE. on the joint brief), for respondent Northern New England Telephone Operations Devine, Millimet & Branch, P.A., of Concord (Frederick J. Coolbroth & a. the calls to the “end user,” who received the call.

Verizon telephone company. The “end office” or “wire center” then transmitted center” to which Verizon’s “access tandem” routed the calls belonged to a noncall was a wireless call or not. In the calls at issue, the “end office” or “wire

either to another “end office” or to a “wire center,” depending upon whether the

the calls to a Verizon “access tandem.” An “access tandem” is a type of switch. of a telephone conversation are “end users.” the call is a local or toll call. In the calls at issue, the “end office” connected routes it over another set of wires or fiber optic lines, depending upon whether

transmitted to Verizon’s “access tandem,” the “access tandem” then routed it Telecommunications Law 2 (2d ed. 2001). In the calls at issue, once a call was connecting a call. See C.H. Kennedy, An Introduction to U.S. See Tariff No. 85, supra section 1.3.2. Switching is another word for

which a telephone call is made. In PUC parlance, the individuals at either end Once a call has been transmitted to the “end office,” the “end office”

it to determine its intent. “end office,” did not belong to Verizon. which the call was transmitted, as well as the “common line” leading to the user” making the telephone call was not a Verizon customer, the “end office” to either end of the conversation was a Verizon customer. Thus, because the “end See Tariff No. 85, supra section 1.3.2. In the calls at issue, neither person on “end office” over a set of wires or fiber optic lines that is called a “common line.” 1.3.2. When an “end user” makes a telephone call, the call is transmitted to an

Before addressing the merits of this appeal, we explain the process by

Where the tariff’s language is plain and unambiguous, we will not look beyond the tariff, ascribing the plain and ordinary meaning to the words used. See id. Dep’t, 156 N.H. 578, 581 (2007). We begin by examining the language used in review the PUC’s tariff interpretation de novo. See Nenni v. Comm’r, N.H. Ins. Public Service Com’n, 156 S.W.3d 513, 521 (Mo. Ct. App. 2005). Therefore, we tariff in the same manner that we interpret a statute. See Laclede Gas Co. v. Id. Because a tariff has the same force and effect as a statute, we interpret a have the force and effect of law and bind both the utility and its customers.” Pennichuck Water Works, 120 N.H. 562, 566 (1980) (citations omitted). “They contractual relationship between a utility and its customers.” Appeal of required to be filed with the PUC, do not simply define the terms of the “[T]he vehicles by which utility rates are set, the tariffs or rate schedules

Board). statutory interpretation by New Hampshire Public Employee Labor Relations of N.H., 138 N.H. 716, 719-20 (1994) (explaining that court no longer defers to interpretation, despite its obvious expertise in this regard. Cf. Appeal of State considerable deference, see Verizon, 153 N.H. at 56, we do not defer to its tariff issue. the three aspects of “switched access service” in connection with the calls at

undisputed that Verizon provided “local switching” and “local transport,” two of

each aspect of “switched access service” that Verizon provided and it is

not traverse its common line because, under the tariff, this charge applies to was allowed to impose the carrier common line access charge for calls that did carrier common line access charge upon these calls. Verizon counters that it 4

common line, the petitioners assert that it was error for Verizon to impose the

Tariff No. 85, supra sections 5, 5.4.1.A, 5.4.1.C (emphases added).

Section 5.4.2.” rates and charges contained in Section 30.5.” provided under this tariff in accordance with Section 4.1 and with the regulations set forth herein and in Section 4.1, and at the rates and charges will be billed to each switched access service and intrastate communications. The carrier common line access includes the switched access service provided for both interstate • Section 5.4.1.C: “The switched access service provided by [Verizon]

common line. As the calls at issue were not transmitted over Verizon’s line access charges.” common line access charge only for calls that are transmitted over Verizon’s service provided to the customer will be subject to carrier common common line. The petitioners contend that Verizon may impose the carrier • Section 5.4.1.A: “Except as set forth herein, all switched access

switched access service provided under this tariff in accordance

“switched access service.” The third component is “common line access.” • Section 5: “Carrier common line access service is billed to each

Tariff No. 85 specifically refer to the carrier common line access charge: examine the plain language of Tariff No. 85. Three provisions in section 5 of access charge for calls that do not actually use Verizon’s common line, we first To determine whether Verizon may impose the carrier common line

carrier common line access charge for calls that do not traverse Verizon’s

“Local switching” and “local transport” are two of three components of calls to the non-Verizon telephone company’s “end office” or “wire center.” transport” refers to the process by which Verizon’s “access tandem” routed the

The parties dispute whether Tariff No. 85 allows Verizon to impose a

Tariff No. 85, supra section 6.1.2.D.

which the “end office” routed the calls to Verizon’s “access tandem,” and “local In the context of this case, “local switching” refers to the process by 5

service” is not complete, but is still “switched access service” under the tariff.

portions of interstate calls that did not actually use a common line. Line Access Service charges.”

was similar to the language in Tariff No. 8 5.

it to determine its intent. access service.” When only two aspects are provided, the “switched access find the tariff’s language to be plain and unambiguous, we will not look beyond section 5.4.1.A. nearly identical to section 5.4.1.A of Tariff No. 85. See Tariff No. 85, supra companies improperly assessed “access carrier common line (CCL) charges” for Id. at 592 (quotation omitted). This language is Access Service provided to the customer will be subject to Carrier Common tariff of one company provided: “[E]xcept as otherwise provided, all Switched Communications Commission (FCC) reached a similar conclusion in Id. at 592-93. For instance, the The tariffs of the incumbent telephone companies included language that

incumbent telephone companies’ tariffs, id. at 592-93. and prior orders, see id. at 570-75, but did not violate the clear language of the switched access service are provided that Verizon provides “complete switched a call that does not physically use a common line violated the FCC’s own rules transport services it provided in connection with the calls at issue. Because we Corp., 14 F.C.C.R. at 557, 558. The FCC ruled that imposing a CCL charge for

“[c]arrier common line.” Tariff No. 8 5, complaint by rival telephone companies that the incumbent telephone Corp. v. Bell Atlantic - Pennsylvania, 14 F.C.C.R. 556 (1998). At issue was the

Although it is not binding upon us, we observe that the Federal

section 6.1.2.D (emphasis added). Thus, it is only when all three aspects of assess the carrier common line access charge to the local switching and local combined. . . provide a complete switched access service.” Tariff No. 8 5, supra under the plain language of Tariff No. 85, it was permissible for Verizon to explains: “Local transport, local switching and carrier common line when switching and local transport are part of switched access service. Accordingly, supra section 6.1.2.B. Section 6.1.2.D apply to switched access service as “[l]ocal transport,” “[l]ocal switching,” and are not synonymous. Section 6.1.2.B identifies the three rate categories that “switched access service” with “complete switched access service.” These terms The PUC reached the opposite conclusion in part because it conflated

switching and local transport with respect to the calls at issue, and that local (unabridged ed. 2002). Here, it is undisputed that Verizon provided local considered one by one.” Webster’s Third New International Dictionary 713 Verizon provides. The plain meaning of the word “each” is “each one” or “all line access charge applies to each aspect of switched access service that The plain meaning of these three provisions is that the carrier common Local Switching rates and charges . . . will apply.”

network], Carrier Common Line [Access] Service and Switched Access Service pertinent part, “For traffic which originates or terminates at [a wireless carrier’s switched access service. The Verizon tariff in the NYPSC proceeding stated, in

Verizon performs all of the stated functions” involved in providing complete in order to charge the carrier common line access charge.

clear and unambiguous and that nothing in that language “assume[d] that the carrier common line access charge for the disputed calls. actually perform this service. The NYPSC ruled that the tariff language was Tariff No. 85 that requires Verizon to provide complete switched access service demanding compensation for carrier common line access when Verizon did not

Section 6.” Tariff No. 85, service to customers in conjunction with switched access service provided in 6

access service.” Accordingly, the petitioners contend, Verizon could not charge here. As with the Verizon tariff in the WilTel proceeding, there is nothing in “carrier common line access service,” and, therefore, did not provide “switched network. WilTel argued, among other things, that Verizon was precluded from

5.1.1.A.1, which states: “[Verizon] will provide carrier common line access

significantly from the language of Tariff No. 85, we reach a similar conclusion issue, because Verizon’s common line was not used, Verizon did not provide intrastate calls that WilTel originated and that terminated at a wireless carrier’s only when it also provides “carrier common line access service.” In the calls at that, pursuant to this provision, Verizon provides “switched access service”

In arguing for a contrary result, the petitioners rely upon section

While the tariff language at issue in the WilTel proceeding differed Verizon improperly charged the carrier common line access charges for

Service Commission (NYPSC) in

used.

that proceeding, WilTel Communications, Inc. (WilTel) had complained that subject to that charge notwithstanding the absence of common line use.” York Inc., Case 04-C-1548, 2006 WL 1479507 (N.Y.P.S.C. May 30, 2006). In access minutes that are not explicitly excepted from the CCL charge must be WilTel Communications, Inc. v. Verizon New We find guidance as well from the decision of the New York Public

common line access charge even when Verizon’s common line is not actually implies that all switched access minutes must be subject to the carrier is contrary to its rules and prior orders. Id. Similarly, here, Tariff No. 85 to impose a CCL charge upon a call that does not actually use a common line incumbent telephone companies to modify their tariffs to reflect its finding that T Corporation, 14 F.C.C.R. at 593. Accordingly, the FCC directed the

interpretation of its rules and orders because “they imply that all switched The FCC determined that the tariffs appeared to be inconsistent with its we might find this argument persuasive. PUC’s tariff interpretation deferentially for mere reasonableness or rationality,

telephone industry since the tariff was first adopted. Were we to review the

from arrogating to ourselves the role of a public utilities commission.”

charge applies to BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred. plain language of section 5, which states that the carrier common line access taking services from Section 5.” These assertions are contrary, however, to the Reversed.

For all of the foregoing reasons, therefore, we reverse the PUC’s decision.

process, and not by a decision of this court. the tariff should be amended, it should be amended as a result of regulatory 85 because, they contend, it is reasonable in light of the evolution of the

omitted). “That is our responsibility no less than it is our obligation to refrain Conservation Law Foundation, 127 N.H. at 616 (quotation and brackets we are obliged to give effect to the plain language used in the tariff. Appeal of complex scientific issues presented in cases of this sort with some diffidence,” novo, however, and although we “approach the task of examining some of the time the rates, terms and conditions in Section 5 apply is when carriers are Co., 94 P.3d 242, 245 (Utah 2004). We review the PUC’s tariff interpretation de

The petitioners urge us to uphold the PUC’s interpretation of Tariff No. disputed calls. Verizon did not violate section 4.1.1.A when it imposed this charge upon the whole. therefore, subject to the carrier common line access charge, we conclude that each switched access service provided under the tariff as a

is the case here – the rates, terms and conditions of Section 6 apply. The only are taking only Local Transport and Local Switching pursuant to Section 6 – as does not apply to the disputed calls. The petitioners argue that “when carriers switched access service that Verizon provides. Alternatively, the petitioners assert that section 5 of Tariff No. 85 simply reiterates that carrier common line access service is one of the types of

issue, and as these two services are part of switched access service and, local transport and local switching services in connection with the calls at billing period. See Tariff No. 85, supra section 4.1.1.A. As Verizon provided bill only for services it established, discontinued or provided during a given The petitioners also rely upon section 4.1.1.A, which requires Verizon to

interpretation. Read in the context of the entire tariff, section 5.1.1.A.1 merely The plain meaning of section 5.1.1.A.1 does not support this