2009-168 & 2009-432, Appeal of Union Telephone Company d/b/a Union Communications

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney

Communications. on the brief and orally), for Union Telephone Company d/b/a Union Rothfelder Stern, L.L.C., of Westfield, New Jersey (Martin C. Rothfelder

IDT America, Corp., filed no brief.

MetroCast Cablevision of New Hampshire, LLC. 2009-432 Robert J. Munnelly, Jr. on the brief, and Mr. Munnelly orally), for petitioner to press. Errors may be reported by E-mail at the following address: Murtha Cullina LLP, of Boston, Massachusetts (Olga L. Bogdanov and

(New Hampshire Public Utilities Commission) APPEAL OF UNION TELEPHONE COMPANY d/b/a UNION COMMUNICATIONS page is: http://www.courts.state.nh.us/supreme.

Nos. 2009-168 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 an injury in fact.”

p. 2 on March 3, 2009. affected by the decision, or in other words, that [it] has suffered or will suffer service it provides in FairPoint’s territory. The PUC granted IDT’s application

PUC granted MetroCast’s application.

decision to this court, a party must demonstrate that its rights “may be directly exchange carrier to include Union’s service territory in addition to the existing

d/b/a FairPoint Communications (FairPoint). On September 30, 2008, the citations omitted), service in the territory of Northern New England Telephone Operations LLC, cert. denied, 502 U.S. 899 (1991); see RSA 541:3 (2007). exchange carrier to include Union’s service territory in addition to its existing Appeal of Richards, 134 N.H. 148, 154 (quotations and

appeal the PUC’s orders. To have standing to appeal an administrative agency February 27, 2009, IDT applied to amend its certification as a competitive local We first address MetroCast’s assertion that Union lacks standing to

remand. I. Standing competitive local exchange carriers in Union’s service territory. We reverse and Hampshire, LLC (MetroCast) and IDT America, Corp. (IDT), to operate as These appeals followed. MetroCast and IDT to operate in its service territory, which the PUC denied. Union filed motions with the PUC to rescind the authority granted to

MetroCast applied to the PUC to amend its certification as a competitive local

IDT provides telecommunications services jointly with MetroCast. On

Rules, PUC 431.01.

as PUC’s grants of authority to the petitioners, MetroCast Cablevision of New Kearsarge Telephone Company, and Merrimack County Telephone Company,

Farmington, Gilmanton, New Durham and Strafford. On September 19, 2008, exchange carrier that operates in Alton, Barnstead, Center Barnstead, The record reveals the following facts. Union is a small incumbent local

Public Utilities Commission (PUC) denying Union’s motions to rescind the d/b/a Union Communications (Union) appeals orders of the New Hampshire DALIANIS, J. In these consolidated appeals, Union Telephone Company

amici curiae.

Company, Dunbarton Telephone Company, Inc., Granite State Telephone, Inc., on the brief), for Bretton Woods Telephone Company, Inc., Dixville Telephone Devine, Millimet & Branch, P.A., of Concord (Frederick J. Coolbroth & a. service shall register with the [PUC]” by filing certain materials and forms.

local exchange carrier] in New Hampshire, the entity proposing to provide [this]

MetroCast and IDT pursuant to

balance of interests with one more nearly to our liking.” 4 p. 3 31.01, which provides that “[b]efore commencing operations as a [competitive administrative resolution, our responsibility is not to supplant the PUC’s competitive local exchange carriers in Union’s territory pursuant to Rule The PUC processed the applications of MetroCast and IDT to serve as

A. Rule 4 p. 3 31.01

U.S. CONST. amends. V, XIV. We address these arguments in turn. and not to the preference of reviewing courts.” legislature has entrusted such policy to the informed judgment of the [PUC] p. 3 374:26 (2009) and the Due Process Clause of the Federal Constitution. See discretionary choices of policy necessarily affect such decisions, and that the 431.01 and failed to afford Union prior notice and a hearing as required by RSA

Union argues that the PUC erred when it processed the applications of

III. Union’s Arguments to balance competing economic interests, or which anticipate such an interpretation de novo. See Appeal of Verizon New England, 158 N.H. at 695. standing to appeal them. PUC’s policy choices considerable deference, we review the PUC’s statutory Foundation, 127 N.H. 606, 616 (1986) (quotation omitted). While we give the

obligation of judicial deference are the more acute when we recognize that and brackets omitted). “The statutory presumption, and the corresponding

158 N.H. 69 p. 3 3, 695 (2009). “When we are reviewing agency orders which seek PUC orders such as the ones at issue. See Appeal of Verizon New England, competition in its service area as a result of the PUC’s orders, Union has of Verizon New England, 153 N.H. at 56. Moreover, we deferentially review insufficient to establish injury.” We hold that, because Union will face PUC are presumed prima facie lawful and reasonable. RSA 541:13; see Appeal potential for increased competition in . . . Union[’s] territory, even if true, is Appeal of Verizon New England, 153 N.H. 50, 56 (2005). Findings of fact by the the evidence, that the order is unjust or unreasonable. RSA 541:13 (2007); see demonstrating that the order is contrary to law or, by a clear preponderance of A party seeking to set aside an order of the PUC has the burden of

II. Standard of Review

show a direct injury from the PUC’s decisions. MetroCast contends that “[t]he MetroCast argues that Union lacks standing because it has failed to its intent to open

p. 4 instead of an outright prohibition on competition, . . . Congress demonstrated

rural and small [local exchange carriers] relief from interconnection obligations

all markets to potential competitors -- even markets served

telephone companies from duties set forth under paragraph (c)). “By granting switches[ ] that constitute a local exchange network.” some of these duties. See 47 U.S.C. § 251(c) (2006), (f) (exempting rural “rural telephone company,” 47 U.S.C. § 153(37) (2006), Union is exempt from restructured local telephone markets. Bell v. Pac West Telecomm, Inc., 325 F.3d 1114, 1118 (9th Cir. 2003). As a physical networks required to supply telecommunications services.” Pacific competitive advantage inherent in incumbent carriers’ ownership of the duties upon incumbent local exchange carriers, the Act “neutraliz[es] the to be a natural monopoly.” Global Naps., 444 F.3d at 62; see 47 U.S.C. § 251(a)(1). By imposing such competitive local exchange carriers . . . to interconnect with their networks.” “end[ ] the longstanding regime of state-sanctioned monopolies,” Chief among them is the local exchange carrier’s obligation “to allow carriers] are subject to a host of duties intended to facilitate market entry.” Id. Pursuant to the Telecommunications Act, “incumbent [local exchange

calls to their destinations[ ], and the . . . wires carrying calls between AT & T Corp., 525 U.S. at 371. (2002). To achieve these goals, the Telecommunications Act fundamentally Verizon Maryland Inc. v. Public Serv. Comm’n of Maryland, 535 U.S. 635, 638 New England, 444 F.3d 59, 61-62 (1st Cir. 2006) (quotation omitted); see strongly favor[s] competition in the local market.” Global Naps, Inc. v. Verizon 545 U.S. at 371, and “to . . . create a national telecommunications policy that of federal law is warranted. “Until the 1990’s, local phone service was thought

Telecommunications Act), of which 47 U.S.C. § 251(f) (2006) is a part, to PUC erred by applying the process under Rule 431.01 to it. Congress enacted the Telecommunications Act of 1996 (the advances made competition among providers of local service seem possible,

the . . . wires connecting telephones to switches[ ], the . . . equipment directing service area to a local exchange carrier . . . , which owned, among other things, 371 (1999). “States typically granted an exclusive franchise in each local

To place Union’s arguments in context, we believe that a brief summary

meaning of Rules 431.01(d) and 402.33. Accordingly, Union contends that the PUC 402.33. Union is an exempt incumbent local exchange carrier within the carrier “that is not exempt pursuant to 47 U.S.C. § 251(f).” N.H. Admin. Rules, Rule 402.33 defines a non-exempt incumbent local exchange carrier as a

[incumbent local exchange carriers].” N.H. Admin. Rules, PUC 431.01(d). to provide competitive local exchange service in the territory of non-exempt PUC “shall issue a[n] . . . authorization number which authorizes the applicant N.H. Admin. Rules, PUC 431.01(b), (c). Unless the PUC denies the request, the rural telephone company.

p. 5 territory of a rural incumbent local exchange carrier like Union, which,

(2009).

franchises, a competitive local exchange carrier was not entitled to enter the process set forth in Rule 431.01 because it applies only to companies that are

typically associated with efficient competitive entry.” 47 C.F.R. § 51.405(c)

request to the state commission, and the state commission must then “conduct legislature repealed RSA 374:22-f and amended RSA 374:22-g to require that interconnection with a rural telephone company must submit a notice of its 47 U.S.C. § 251(f)(1)(B). Under the federal scheme, the party requesting exchange carriers with more than 25,000 access lines had nonexclusive regarding Rule 431.01. While Union argues that the PUC erred by using the amended RSA 374:22-g, which had previously stated that only incumbent local to incumbent local exchange carriers with fewer than 25,000 access lines, and likely to cause undue economic burden beyond the economic burden that is Before the legislature repealed RSA 374:22-f, which pertained specifically from interconnection requirements under federal law. not exempt under federal law. PUC could no longer restrict the process in Rule 431.01 to carriers that were

all incumbent local exchange carriers be open to competition, the

exchange carriers with interconnection to its network are 431.01 was lawful. The PUC asserts that, beginning in 2008, when the not exempt under federal law, the PUC counters that its reliance upon Rule technically feasible,” and is consistent with certain other provisions of the Act.

With this background in mind, we turn to the parties’ arguments

under 47 U.S.C. § 251(f) by showing that terminating the exemption “would be the PUC made no determination regarding Union’s entitlement to exemption U.S.C. § 251(a)(1); RSA 374:22-g. In other words, in the proceeding at issue, another telecommunications carrier to provide service in Union’s area. See 47 appeal. Rather, this appeal concerns whether the PUC erred merely in allowing

Union’s duties under federal law to provide potential competitive local

interconnection “if the request is not unduly economically burdensome, is

however, is not absolute. The PUC

bears the burden of proving that it remains entitled to the exemption set forth

days of receiving notice that a carrier has made a bona fide request for

Union’s exemption from some of these interconnection requirements,

F.C.C., 201 F.3d 1264 (10th Cir. 2000). 15,639, 15,659 (1997) (emphasis added), aff’d by RT Communications, Inc. v. relief.” In the Matter of Silver Star Telephone Company, Inc., 12 F.C.C.R. by rural or small [local exchange carriers] that may qualify for interconnection p. 6 374:22 (2009), which provides, in pertinent part:

to which RSA 374:26 refers is that which the PUC may grant pursuant to RSA

expressed in the words of a statute considered as a whole. for the public good, and not otherwise.” (Emphasis added.) The “permission”

meaning of its regulations.”

the PUC may not apply Rule 431.01 to Union, which is to its plain and ordinary meaning.

374:26. This court is the final arbiter of the intent of the legislature as in business, construction or exercise of right, privilege or franchise would be such permission whenever it shall, after due hearing, find that such engaging regulations is erroneous as a matter of law when it fails to embrace the plain RSA 374:26 provides, in pertinent part: “The commission shall grant

scheme and not in isolation. Id. Furthermore, we interpret statutes in the context of the overall statutory determine if the plaintiffs’ conduct was unprofessional). language is ambiguous, we need not look to legislative intent. Id. PUC may not act contrary to the plain meaning of Rule 431.01. Accordingly, Id. Unless we find that the statutory are exempt under federal law from certain interconnection requirements, the by the PUC was, nevertheless, lawful, we turn to Union’s remaining arguments. language of the statute itself, and, if possible, construe that language according territories of all incumbent local exchange carriers, regardless of whether they New England, 153 N.H. at 63. In interpreting a statute, we first look to the

Union grounds its entitlement to prior notice and a hearing in RSA

own rules and regulations, and that an agency’s interpretation of its own B. Union’s Statutory Right to Notice and Hearing

board’s rules did not preclude board from exercising its statutory authority to See Smith v. N.H. Bd. of Psychologists, 138 N.H. 548, 552 (1994) (expiration of

telephone service in Union’s territory. To determine whether the process used PUC now must allow competitive local exchange carriers access to the applying Rule 431.01 to Metrocast’s and IDT’s applications to provide 429 (1992) (quotations and citations omitted). Therefore, the PUC erred by

law of this State is well settled that an administrative agency must follow its competition in their own territories for the first time. law, because Rule 431.01 on its face applies only to non-exempt utilities. “The exchange carriers with fewer than 25,000 access lines became subject to exempt under federal

incumbent local exchange carriers. This reasoning is flawed. Although the Union, it was required to extend the process under Rule 431.01 to all local exchange carriers to competition, including small, rural carriers like The PUC reasoned that because the legislature subjected all incumbent

legislature repealed RSA 374:22-f and amended RSA 374:22-g, incumbent local according to Union’s pleadings, has fewer than 8,000 access lines. Once the public good unless prohibited by federal law. p. 7 the commission finds and determines that it is consistent with the

incumbent as a result of incurring such expenses. services, by more than one provider, in any service territory, when account the proportionate benefit or savings, if any, derived by the the incumbent utility to benefit competitive providers, taking into 7

staff.

local exchange services, and any other telecommunications authorize the providing of telecommunications services, including the recovery from competitive providers of expenses incurred by petition or on its own motion, shall have the authority to See New England Tel. & Tel. Co. v. State, 113 N.H. 92, 101-02 (1973). written submissions, but may also rely upon its own expertise and that of its good” determination, see RSA 374:22-g, II, the PUC may rely not only upon language of RSA 374:22-g. In considering the factors comprising the “public MetroCast correctly notes that no hearing is required by the plain

to hold a hearing before deciding whether to grant such permission. opportunity to realize a reasonable return on its investment; and commission, shall be nonexclusive. The commission, upon carrier of last resort obligations; the incumbent utility’s but not limited to, fairness; economic efficiency; universal service; consider the interests of competition with other factors including, II. In determining the public good, the commission shall approval of the commission. such town, without first having obtained the permission and RSA 374:26. RSA 374:22-g provides, in pertinent part:

Pursuant to the plain language of RSA 374:26, therefore, the PUC was required from the PUC before commencing telephone service in Union’s service territory. provides local exchange service, subject to the jurisdiction of the telephone franchise areas served by a telephone utility that notwithstanding any other provision of law to the contrary, all I. To the extent consistent with federal law and

privilege under any franchise not theretofore actually exercised in MetroCast argues that RSA 374:22-g supplants the hearing required by

(1996). Here, RSA 374:22 obligated MetroCast and IDT to request permission RSA 374:22, I; see Appeal of Public Serv. Co. of N.H., 141 N.H. 13, 16-17

already be engaged in such business, or shall exercise any right or appliance to be used therein, in any town in which it shall not begin the construction of a plant, line, main or other apparatus or public utility within this state, or shall engage in such business, or No person or business entity shall commence business as a proceedings under RSA 374:22-g.

p. 8 hold that the hearing requirement set forth in RSA 374:26 applies to with the PUC’s statutory obligation to consider these factors. Accordingly, we to provide telephone service in a telephone utility’s service area is consistent

374:22-g, II. Requiring the PUC to hold a hearing before allowing competitors

investment” and to comply with its “carrier of last resort obligations.” RSA carrier, such as its “opportunity to realize a reasonable return on its that granting such permission will have on the incumbent local exchange

a single area. 8 good to allow more than one provider to provide telecommunications services in territory is for the “public good.” Several of these factors concern the impact searching inquiry before determining whether it is consistent with the public

more than one provider to provide telecommunications services in a single intent underlying RSA 374:22-g, which is to require the PUC to conduct a the public good, and not otherwise.”

numerous factors the PUC must consider when determining whether allowing another telephone utility. A contrary construction would defeat the legislative See id. RSA 374:22-g sets forth the deciding whether to allow a telephone utility to compete in the service area of business, construction or exercise of right, privilege or franchise would be for RSA 374:22-g must be construed to require the PUC to hold a hearing before permission may not be granted unless the PUC finds “that such engaging in Public Serv. Co. of N.H., 141 N.H. at 16-17. Pursuant to RSA 374:26, such permission to an entity seeking to expand its existing franchise. See Appeal of RSA 374:26 sets the standard by which the PUC may grant or withhold

lead to reasonable results and effectuate the legislative purpose of the statute.”

harmoniously.

We conclude that when RSA 374:26 and RSA 374:22-g are read together,

omitted). Appeal of Campaign for Ratepayer Rights, 142 N.H. 629, 631 (1998) (quotation and addresses the subject at hand more specifically. 374:22-g, RSA 374:22-g governs because it was enacted later than RSA 374:26 construe them so that they do not contradict each other, and so that they will interpreting two statutes which deal with similar subject matter, we will other.” Appeal of Derry Educ. Assoc., 138 N.H. 69, 71 (1993). “When reasonably possible, statutes should be construed as consistent with each

See State v. Patterson, 145 N.H. 462, 466 (2000). “Where

misplaced because RSA 374:22-g and RSA 374:26 can be construed MetroCast’s reliance upon this principle of statutory construction is

(1989). Serv. Co. of N.H., 130 N.H. 265, 283 (1988), appeal dismissed, 488 U.S. 1035

RSA 374:26 conflicts with the lack of hearing requirement set forth in RSA MetroCast contends that to the extent that the hearing requirement set forth in telecommunications service.” Additionally, 47 U.S.C. § 253(d) provides: necessary to preserve and advance universal service, protect the public safety

p. 9 extent necessary to correct such violation or inconsistency.

prohibiting the ability of any entity to provide any interstate or intrastate allows “a State to impose, on a competitively neutral basis . . . requirements

enforcement of such statute, regulation, or legal requirement to the that violates subsection (a) . . . , the Commission shall preempt the permitted or imposed any statute, regulation, or legal requirement

and execution of the full purpose and objective of Congress.” other State or local legal requirement, may prohibit or have the effect of Notwithstanding the above, the Telecommunications Act also expressly

“balance these interests.” state and federal law actually conflict.” exclusive regulatory power in a particular field to the federal government; or (3) and local regulation. telecommunications markets,” it also recognized the continuing need for state Commission determines that a State or local government has telecommunications providers have competitive access to state and local If, after notice and an opportunity for public comment, the

requirements or where state law stands as an obstacle to the accomplishments 47 U.S.C. § 253(a) provides: “No State or local statute or regulation, or

Telecommunications Act. Id. (1st Cir. 2006). The provisions of section 253 of the Telecommunications Act

While Congress enacted the Telecommunications Act “to ensure that

omitted).

impossible for a private party to comply with both state and federal N.H. 762, 770 (2005) (quotation omitted). “An actual conflict exists when it is requirement constitutes a barrier to competition, which violates the Carlisle v. Frisbie Mem. Hosp., 152 service in its service area. MetroCast contends that a prior notice and hearing carrier with prior notice and a hearing before allowing a competitor to provide Constitution, state law is preempted where: (1) Congress expresses an intent FCC, 476 U.S. 355, 368 (1986). “Under the Supremacy Clause of the Federal Congress the power to preempt state law. Lousiana Public Service Comm’n v. The Supremacy Clause of Article VI of the Federal Constitution gives

laws that impede competition.”). at 371 (Pursuant to Telecommunications Act, “States may no longer enforce

statutory requirement that the PUC provide an incumbent local exchange Alternatively, MetroCast argues that federal law preempts any state limit our due process analysis to the Federal Constitution. p. 10 has not invoked a specific due process provision of the State Constitution, we first instance. additional fact finding, we remand this issue to the PUC for resolution in the

receive notice and an opportunity for a hearing in this matter.” Because Union

resolving whether federal law preempts such a requirement may entail same.

environment.” competitor to compete in a fair and balanced legal and regulatory “materially inhibits or limits the ability of any competitor or potential Channel Nine v. N.H. Dep’t of Fish & Game, 154 N.H. 46, 48-49 (2006).

Union argues that “[c]onstitutional due process also requires that [it]

determined that Union had no right to prior notice and a hearing. Because right to prior notice and a hearing, Union had a constitutional right to the interest of judicial efficiency we address whether, in addition to its statutory exchange services). Simplex Technologies v. Town of Newington, 145 N.H. 727, 732 (2001), in the Although we ordinarily decide constitutional issues only when necessary, Federal Communications Commission (FCC) consider whether the law C. Union’s Alleged Due Process Right to Notice and Hearing

another carrier to compete in area served by rural telephone company); See In the Matter of Clark & Clark, 154 N.H. 420, 426 (2004). entity to provide telecommunications service.”

§ 253(a).” The PUC did not reach the federal preemption issue because it

procedural constraint upon ability of potential competitor to provide local state statute requiring prior hearing because it creates substantive and at *8 (Wisconsin Public Service Commission May 9, 2008) (federal law preempts prohibiting the provision of telecommunications services, courts and the Sprint Communications Company L.P., No. 6055-NC-103, 2008 WL 2787762,

law preempts certain provisions of Arkansas law that make it more difficult for local laws and regulations expressly or effectively prohibiting the ability of any Communications Services, Inc., 14 F.C.C.R. 21,579, 21,616-21 (1999) (federal

Id. (quotation omitted); see In the Matter of American

“[A] prohibition does not need to be complete or insurmountable to run afoul of

Municipality of Guayanilla, 450 F.3d at 18 (quotations omitted).

U.S. 125, 128 (2004). To determine whether a state law has the effect of F.3d at 16 (quotation omitted); see Nixon v. Missouri Municipal League, 541

“It is well-established that § 253(a) authorizes preemption of state and

safeguard the rights of consumers.” 47 U.S.C. § 253(b). and welfare, ensure the continued quality of telecommunications services, and constitutional protection.

p. 11 reasonable return on its investment is a property interest entitled to

also correctly observes that a public utility’s opportunity or ability to realize a utility’s opportunity to realize a p. 11 reasonable return on its investment.” Union territory of another telephone utility, the PUC must consider “the incumbent

authorize one telephone utility to provide local exchange services in the

determination regarding whether “it is consistent with the public good” to

franchises, and, therefore, no due process right to hearing).

and more than a unilateral expectation of it.” Union correctly notes that under RSA 374:22-g, II, in making its franchise, “a person clearly must have more than an abstract need or desire Due Process Clause.” interest rises to the level of a legitimate claim of entitlement protected by the exchange carriers had no protected property interest in their exclusive Company L.P., 2008 WL 2787762, at *8 (ruling that rural incumbent local

independent source such as state law.” property interest in its exclusive franchise and, therefore, no right to a due dimensions are defined by existing rules or understandings that stem from an non exclusive.” (Emphasis added.) Accordingly, Union has no protected served by a telephone utility that provides local exchange service . . . shall be 374:22-g, as amended in 2008, makes clear that “all telephone franchise areas entitlement to an exclusive franchise. As we noted earlier in this opinion, RSA The current statutory scheme fails to grant Union a legitimate claim of

franchise. To have a property interest in a benefit, such as an exclusive Id. at 757 (quotations and emphasis omitted).

source such as state law, federal constitutional law determines whether that “Although the underlying substantive interest is created by an independent

course, not created by the Constitution. Rather, they are created and their claim of entitlement to it.” Id. (quotation omitted). “Such entitlements are, of protected interest in life, liberty or property. U.S. 748, 756 (2005) (quotations omitted). “He must, instead, have a legitimate

its procedural protection must establish that one of these interests is at stake.” establish that it has a protected property interest in maintaining its exclusive franchise. Accordingly, to succeed on its due process challenge, Union must The deprivation at issue here is the deprivation of Union’s exclusive

Id.

protected interest do we look to see if the procedures employed comport with v. Sullivan, 526 U.S. 40, 59 (1999). Only after finding the deprivation of a

process challenge, therefore, is whether there has been a deprivation of a Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The first inquiry in every due

against deprivations of life, liberty, or property; and those who seek to invoke “The Fourteenth Amendment’s Due Process Clause protects persons p. 12 12

statutory requirement. determine in the first instance whether federal law preempts this state

moment.

statutory right, to prior notice and a hearing. We remand to the PUC to

allow MetroCast and IDT to provide service in Union’s territory is of no BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

In sum, we hold that Union has no constitutional right, but has a

consideration when deciding whether it is consistent with the public good to Union’s opportunity to realize a reasonable return on its investment into investment would be decided. Accordingly, the fact that the PUC must take setting proceeding in which Union’s right to realize a reasonable return on its 307-08 (1989). The process under consideration here, however, is not a rate