State ex rel. Cincinnati Bell Telephone Co. v. Public Utilities Commission
Docket: No. 2004-1122
Court: Ohio Supreme Court; March 29, 2005; Ohio; State Supreme Court
On November 5, 2003, Time Warner Cable Information Services (Ohio, L.L.C.) applied to the Public Utilities Commission of Ohio for a certificate to provide local and interexchange voice services via Voice over Internet Protocol (VoIP). VoIP allows voice communication over the Internet, contrasting with traditional circuit-switched telephone services. Cincinnati Bell Telephone Company intervened in opposition, arguing that Time Warner should be subject to the same regulatory requirements as local exchange carriers. On December 17, 2003, the Commission deferred a decision on Time Warner’s application until it resolves case No. 03-950-TP-COI, which addresses jurisdiction over VoIP providers. Meanwhile, the Commission authorized Time Warner to provide VoIP services as specified in its application. On January 16, 2004, Cincinnati Bell sought rehearing of this order, alleging that the Commission acted unlawfully by allowing Time Warner to operate without proper certification and by granting it regulatory advantages. On February 11, 2004, the Commission denied the rehearing requests, clarifying that its earlier authorization did not constitute a grant of certification or operating authority, but rather allowed Time Warner to operate while the jurisdictional matter was under review, affirming that its operation should not be hindered by its pending application.
On March 12, 2004, Cincinnati Bell submitted a second application for rehearing regarding the commission's February 11, 2004 entry, which had denied its first rehearing request. Cincinnati Bell argued that the commission incorrectly determined that Time Warner would not be classified as a telephone company under Ohio law and suggested that Time Warner could operate without the necessary certification or compliance with the commission's rules. Cincinnati Bell explicitly challenged the February 11 order rather than the earlier December 17 order. The second application was effectively denied by law due to the commission's inaction within 30 days, as stipulated by R.C. 4903.10. On June 9, 2004, Cincinnati Bell filed a notice of appeal related to the commission's February 11 entry and the denial of its March 12 rehearing application. This notice was filed with the commission's docketing division, which acknowledged receipt and informed Cincinnati Bell's attorney that the notice would be forwarded to the commission’s counsel. Although Cincinnati Bell included a certificate of service for the parties involved in the Time Warner case, it did not confirm service to the commission chairman or the Attorney General. The appeal is designated as Cincinnati Bell Tel. Co. v. Pub. Util. Comm., case No. 2004-0925. The commission failed to send a transcript of the related proceedings within the prescribed 30 days following the notice of appeal. Consequently, on July 12, 2004, Cincinnati Bell filed a complaint seeking a writ of mandamus to compel the commission to provide the transcript. The commission subsequently moved to dismiss this mandamus action, with Time Warner supporting the motion. Cincinnati Bell opposed the dismissal, submitting an affidavit from its counsel, which the commission later moved to strike. On September 29, 2004, the court granted the motion to strike but denied the dismissal request and issued an alternative writ. Cincinnati Bell later presented additional evidence including a new affidavit asserting service of the notice of appeal on the commission chairman. The commission did not submit any evidence. The matter is now under court review for its merits, with Cincinnati Bell required to demonstrate its legal right to the transcript, the commission's duty to provide it, and the absence of alternative legal remedies.
R.C. 4903.21 mandates that the Public Utilities Commission must send a complete transcript of its proceedings to the clerk of the Supreme Court upon service or waiver of the notice of appeal, as outlined in R.C. 4903.13. This includes journal entries, original documents, and a certified transcript of all evidence, which must be filed promptly. If the commission fails to transmit the transcript within 30 days, the appellant has an additional three days to file for a writ of mandamus. The term "forthwith" is interpreted to allow a 30-day period for this transmission. Cincinnati Bell has requested such a writ, which the commission opposes, arguing non-compliance with R.C. 4903.13 and challenges regarding the timing and nature of the appeal. The court rejects the commission's arguments and grants the writ. Additionally, the commission contests the admissibility of an affidavit from Cincinnati Bell’s counsel, claiming it parallels a previously stricken affidavit and contains inadmissible content. The court finds this argument unpersuasive, clarifying that while the earlier affidavit could not be considered at the motion to dismiss stage, Cincinnati Bell is permitted to submit a similar affidavit as evidence after an alternative writ is granted. The affidavit in question is determined to be admissible as it is based on personal knowledge and complies with evidentiary standards.
Hart provided evidence through his affidavit that he left multiple copies of the Notice of Appeal with the clerk at the Commission's Docketing Division, asserting that the clerk indicated those copies would be forwarded to the Attorney General's office. His testimony regarding his actions and intent to comply with R.C. 4903.13 is admissible, although it does not resolve whether proper service was actually achieved. The commission's interpretation of R.C. 4903.13, which restricts the service options to only serving the chairman or a commissioner when the chairman is absent, is incorrect. The statute outlines three independent service methods: service to the chairman, service to any commissioner in the chairman's absence, or leaving a copy at the commission's Columbus office. The commission's assertion that Cincinnati Bell failed to comply with R.C. 4903.13 lacks merit, as the comma usage in the statute indicates that each service method stands alone. This interpretation aligns with legal precedent, emphasizing the importance of contextual reading in statutory interpretation. Hart's affidavit is therefore considered valid evidence in Cincinnati Bell’s mandamus claim.
Cincinnati Bell fulfilled the statutory service requirements by delivering copies of its notice of appeal to the commission’s docketing division for the Attorney General's delivery. The commission did not provide evidence to dispute that it received notice of the appeal, supporting Cincinnati Bell’s compliance with R.C. 4903.13. Therefore, the court need not address Cincinnati Bell’s alternative claims of compliance. The commission contends it is not obligated to send a transcript of the proceedings, arguing that Cincinnati Bell's appeal is from non-final orders and was untimely. This stance has led to other mandamus actions aimed at compelling the commission to provide transcripts in similar cases. Under R.C. 4903.21, the commission must transmit the transcript upon service of the notice of appeal, and the term "shall" is interpreted as mandatory unless stated otherwise by clear legislative intent. The commission’s obligation to transmit the transcript is independent of this court's jurisdiction over the appeal. The court cannot impose additional conditions regarding the appealability of commission orders on the statutory duty to transmit transcripts. Issues surrounding the appealability should be handled within the appeal process rather than through collateral actions like mandamus.
Cincinnati Bell has demonstrated a clear legal right to receive the complete transcript of the Time Warner case (case No. 03-2229-TP-ACE) from the commission for filing in case No. 2004-0925. The commission has a legal duty to transmit this transcript, and there is no adequate legal remedy available to enforce this duty. The court grants a writ of mandamus compelling the commission to perform this action, based on R.C. 4903.21 and S.Ct. Prac.R. V(4). The court also notes that leaving a notice of appeal with the commission satisfies R.C. 4903.13, and emphasizes that the commission's obligation to provide the transcript is not contingent on the court's jurisdiction over the appeal. The majority of justices concur, while one justice does not participate.
