A local telephone company proposed moving its first point of switching for routing telephone traffic. Two long-distance carriers affected by the proposal opposed the change, and an association of local telephone companies sought to intervene in the ensuing regulatory proceeding. The agency denied intervention, the superior court affirmed, and the association appeals. We affirm denial of intervention because the agency reasonably concluded that the association did not qualify for mandatory intervention and did not abuse its discretion in denying permissive intervention.
II. FACTS AND PROCEEDINGS
Long-distance telephone companies (interexchange carriers, or IXCs) need the facilities of local telephone companies (local exchange companies, or LECs) to originate and terminate intrastate toll calls.
Under the old settlements process, each long-distance telephone company negotiated with each local carrier individually.
In October 2006 AECA member Interior Telephone Company, Inc. petitioned for authorization to move its first point of switching, following procedures outlined in AECA's tariff. The first point of switching is:
Put another way, a switch is a device that routes telephone traffic, and the first point of switching, or FPOS, is the physical point where a local AECA member company interconnects with an interstate long-distance service provider. According to Interior Telephone, moving the FPOS would benefit consumers by making additional services available in a cost-efficient manner. Two long-distance telephone companies, GCI Communication Corp. d/b/a General Communication, Inc. and Alascom, Inc. d/b/a AT & T Alascom, opposed Interior Telephone's proposed FPOS change partly because they believed it would impermissibly shift some costs to them.
The Commission designated GCI and AT & T as parties to the regulatory proceeding without requiring petitions to intervene, noting that AECA's tariff "anticipates that objecting access customers will participate in a proceeding before the commission." The Commission further stated: "We require any interested person wishing to file a petition to intervene in this proceeding to file that petition by October 20, 2006. Our criteria for evaluating petitions to intervene are set out at 3 AAC 48.110."
AECA timely filed a petition to intervene, arguing that under 3 AAC 48.110 it had a statutory right to intervene or it qualified for permissive intervention. Interior Telephone supported the petition; GCI and AT & T each filed an opposition.
On November 30 the Commission denied AECA's petition to intervene, likening the case to Docket U-99-81, in which the Commission had previously decided AECA neither had a statutory right to intervene nor qualified for permissive intervention.
On December 28 the Commission granted AECA's motion for expedited consideration but denied its petition for reconsideration. The Commission reiterated that AECA had no statutory right to intervene and that permissive intervention was not warranted. AECA appealed to the superior court, and Superior Court Judge Sen K. Tan affirmed denial of AECA's intervention motion in April 2007.
In June 2007 the Commission held a public hearing on Interior Telephone's petition to change the FPOS. The Commission denied the petition in October.
AECA appeals the denial of intervention.
III. STANDARD OF REVIEW
When a superior court acts as an intermediate court of appeals, we independently review the administrative decision.
Here, the proper standards of review are (1) "rational basis" for whether AECA qualifies for intervention as a matter of right under 3 AAC 48.110, because the Commission is in a superior position to interpret its own regulation, and (2) "abuse of discretion" for whether AECA qualifies for permissive intervention under 3 AAC 48.110, because the Commission is applying its own regulation to the facts of the case.
A. Arguments and Rulings Below
AECA first argues that it has a statutory right to intervene under 3 AAC 48.110(a), which provides: "Any person who has a statutory right to be made a party ... will be permitted to intervene." AECA concedes that "there is no express provision of the Utilities Act stating that a utility or its ratepayers may be heard with regard to issues arising under a tariff." But according to AECA, the "basic tenet, that a party may be heard with regard to disputes arising under its own tariff," is "implied in virtually every tariff-related provision of the Utilities Act." AECA argues that the issues in this case affect AECA as a whole, as well as AECA's tariff, AECA's billing and collection of access charges, AECA's distribution of access charge revenues, and AECA's twenty other member companies.
AECA also argues that it qualifies for permissive intervention under another portion of 3 AAC 48.110(a), which provides: "Any person whose intervention will be conducive to the ends of justice and will not unduly delay the conduct of the proceeding will, in the commission's discretion, be permitted to intervene." 3 AAC 48.110(b) specifies seven permissive intervention factors:
The Commission found the facts and circumstances of this case "substantially identical" to those in Docket U-99-81 and, "for the same reasons" as in that case, denied AECA's petition. The local telephone company in Docket U-99-81 had moved its first point of switching from North Pole to Fairbanks.
The Commission also noted that AECA "fail[ed] to acknowledge [the order in Docket U-99-81] in its petition." In denying AECA's subsequent motion for reconsideration, the Commission stated that AECA had no statutory right to intervene and that intervention based on the discretionary intervention factors was not warranted.
The superior court affirmed the Commission's decision, first reiterating that no express statutory right of intervention existed. The court reasoned that whether the term "statutory" in 3 AAC 48.110(a) encompassed implied statutory rights was a matter of the Commission's interpretation of its own regulations, and thus subject to the "reasonable basis" standard of review. The court concluded that "[b]ased on the language of the regulation," a reasonable basis existed for the Commission to deny AECA intervention.
The court then stated that while some permissive intervention factors weighed in favor of allowing intervention, others weighed against it, and it concluded the Commission had not abused its discretion in denying AECA's motion for permissive intervention. The court noted that the only section of the tariff at issue was § 2.6, which "deals only with obligations of the parties before a petition is filed," and that the tariff did not address "what happens after the petition is filed with the Commission." Thus, the court reasoned, "the tariff is really not central to the issue currently before the Commission. Rather, the docket is concerned with how the Commission will decide the FPOS issue."
B. The Commission Reasonably Concluded that AECA Does Not Qualify for Express or Implied Mandatory Intervention.
AECA concedes it has no express statutory right to intervene, but asserts that a "regulated entity is automatically given party status in a proceeding in which its own tariff is at issue without the need to intervene at all." AECA relies on § 603(b) of the Commission's access charge manual
AECA's argument fails because its role is essentially that of an administrator. The Alaska Public Utilities Regulatory Act
A change in FPOS "relates to" AECA's tariff only in the sense that AECA will need to prepare, file, and distribute a revised access charge. The statute authorizing AECA's creation explicitly refers to AECA's role in administering access charges.
AECA contends that proceedings before the Commission involved "considerable evidence on the proper application and interpretation of AECA's tariff" and that "evidence concerning the proper interpretation and application of AECA's FPOS provisions was actually introduced in the underlying docket over the objections of GCI and AT & T." Interpretation of the tariff was at issue in those proceedings only insofar as ITC unsuccessfully argued that the tariff contained standards relevant to the Commission's decision on the proposed FPOS change.
AECA also asserts that its authorized activities are "nearly identical" to those of the National Exchange Carrier Association (NECA). The Federal Communications Commission (FCC) has stated that "NECA may freely express its views before [the FCC] whenever it chooses to do so" and that "it would be an error to restrict ... the free expression of NECA's views in proceedings" before the FCC.
Section 69.603 Association functions.
However, AECA's reliance on NECA is unpersuasive for two reasons. First, the authority AECA cites does not expressly provide NECA an unfettered right to intervene as a party in all regulatory proceedings involving its members that may touch upon its tariff,
C. The Commission Was Within Its Discretion To Deny AECA Permissive Intervention.
AECA asserts that it meets the permissive intervention criteria set out in 3 AAC 48.110(a) and (b). Specifically, AECA claims that: (1) it has a direct interest in the tariff's interpretation and application; (2) any Commission ruling concerning the tariff will impact it and its members; (3) only through intervention can it protect its interests; (4) no other party can represent its unique interest or present its unique perspective; (5) its institutional knowledge about development of § 2.6 of the tariff will assist in developing a complete record; and (6) far from intending to broaden the issue or delay proceedings, it already had timely filed testimony and agreed to an expedited procedural schedule.
Because the Commission reasonably concluded that AECA does not qualify for mandatory intervention under 3 AAC 48.110, and because the Commission did not abuse its discretion in denying permissive intervention under that regulation, we AFFIRM the denial of AECA's intervention in the underlying regulatory proceeding.
AECA also points to Docket U-00-88, in which the Commission allowed an oil company and two natural gas companies to intervene because "[c]ustomers of a public utility have a statutory right to participate as a party [sic] in utility proceedings" and the companies would have had standing to seek judicial review. In Re Investigation into 2000 Revenue Requirement & Cost of Svc. Studies, Docket U-00-88, Order No. 2 at 4 (Regulatory Comm'n of Alaska, Feb. 5, 2001). Docket U-00-88 is distinguishable from this case because AECA is not a customer of a public utility.