In re Verizon New England, Inc.
Annotate this Case
In re Verizon New England, Inc. (2000-118); 173 Vt. 327; 795 A.2d 1196
[Filed 22-Feb-2002]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 2000-118
In re Petition of Verizon New England Inc. Supreme Court
d/b/a Verizon Vermont
On Appeal from
Public Service Board
May Term, 2001
Michael H. Dworkin, Chair
Barbara G. Ripley of Wilson & White, P.C., Montpelier, Sean A. Lev of Kellogg,
Huber, Hansen, Todd & Evans, P.L.L.C., Washington, D.C., and Victor D.
Del Vecchio and Gregory M. Kennan, Boston, Massachusetts, for Appellant.
Charles F. Storrow of Kimbell & Storrow, Montpelier, and Kenneth W. Salinger
of Palmer & Dodge LLP, Boston, Massachusetts, for Appellee AT&T
Communications of New England, Inc.
Leslie A. Cadwell and John J. Cotter, Special Counsel, Montpelier, for
Appellee Department of Public Service.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. Bell Atlantic-Vermont appeals an order of the Public
Service Board requiring the telecommunications company to make certain
facilities or services available to competitive local exchange carriers.
Bell Atlantic-Vermont argues that the Public Service Board's order is
inconsistent with federal law, and is not supported by independent state
authority. We hold
that there is ample state authority to support the order of the Public
Service Board, and that the order does not contradict federal law. (FN1)
Accordingly, we affirm.
This case arises from the merger of New England Telephone & Telegraph
Company with Bell Atlantic, which was approved by the Public Service Board
(PSB) in February 1997. As part of the agreement, the PSB ordered the
merged company, known as Bell Atlantic-Vermont (BAVT), to comply with the
federal "competitive checklist" that is laid out in 47 U.S.C. §
271(c)(2)(B), part of the Telecommunications Act of 1996 (the Act). The
checklist contains fourteen elements that were designed to regulate the
entry of a Bell operating company into interLATA services (service between
the local exchange and an outside exchange). This case, however, does not
implicate the checklist, or the Act, directly. Rather, the PSB
appropriated the checklist's requirements as a framework for constraining
any anti-competitive effects of the merger of Bell Atlantic and New England
Telephone & Telegraph. Thus, the PSB required BAVT's compliance with the
federal competitive checklist as an exercise of the PSB's authority under
state law to oversee the merger, not to implement the checklist or the Act
themselves.
The PSB ordered BAVT to comply with the competitive checklist by
September 1997. In June 1998, the PSB held a hearing to assess the extent
to which BAVT had complied with the competitive checklist and enacted any
necessary changes to its network. (FN2) After receiving
recommendations from two hearing officers in June 1999, the PSB issued its
final order in January 2000.
In that decision, the PSB determined that BAVT had not satisfied two
elements of the competitive checklist, and ordered compliance with them.
One element of the checklist requires BAVT to provide "[n]ondiscriminatory
access to network elements in accordance with the requirements of sections
251(c)(3) and 252(d)(1) of [47 U.S.C.]." 47 U.S.C. § 271(c)(B)(ii).
Another item on the checklist obligates BAVT to ensure that
"[t]elecommunications services are available for resale in accordance with
the requirements of sections 251(c)(4) and 252(d)(3) of this title." 47
U.S.C. § 271(c)(B)(xiv). The PSB held that BAVT had not complied with the
nondiscriminatory access requirement of the competitive checklist because
the company did not offer combinations of unbundled network elements
(UNEs) that are ordinarily combined to provide service to a customer, but
that are not currently physically combined, to competitors in the local
exchange market. The PSB also found that BAVT had not complied with the
element of the competitive checklist to resell telecommunications services
because BAVT had not offered voice mail for resale to competitors.
According to the PSB, its authority to order BAVT to provide combinations
of UNEs is based both in the federal law referenced by the competitive
checklist, as well as independent state law. In contrast, the PSB rested
its decision to order BAVT to offer voice mail for resale solely on its
authority under state law.
BAVT appeals from the decision, arguing that state law does not
authorize the PSB to require the company to combine UNEs that are
ordinarily combined at the request of a competitor. BAVT further contends
that the federal law referenced in the competitive checklist does not
require BAVT to provide a competitor with combinations of UNEs that are
ordinarily combined, and thus any state
law that mandates as much is preempted by federal law. Similarly, BAVT
argues that it should not be required to resell voice mail as a
telecommunications service to competitors because the PSB's jurisdictional
grant over "telecommunications" does not include voice mail. BAVT claims
that the federal definition of "telecommunications," which does not
include voice mail, preempts the state definition, even if it includes
voice mail, because the two definitions are inconsistent.
We affirm both determinations by the PSB on the ground that
irrespective of federal law, state law authorizes the board to issue the
challenged orders. We reject the claims of federal preemption because we
do not find any aspect of relevant federal law inconsistent with the PSB's
decision.
I. Regulatory Background
The competitive checklist, and the federal law referenced within, are
part of the Telecommunications Act of 1996, Pub. L. No. 104-104 (codified
throughout 47 U.S.C. §§ 151-609). The Act fundamentally amends the
Communications Act of 1934, 48 Stat. 1064, the principal legislation that
regulates telecommunications and established the FCC. According to the
preamble, the 1996 Act's purpose is "to promote competition and reduce
regulation in order to secure lower prices and higher quality services for
American telecommunications consumers and encourage the rapid deployment
of new telecommunications technologies." Pub. L. No. 104-104 (1996). As
such, the Act aims to restructure local telephone markets by imposing
duties on incumbent local exchange carriers to open their networks to
competition and by preventing states from enforcing laws that impede entry
into local exchange markets.
The use of a federal statute by a state board is consistent with the
federal government's approach to telecommunications regulation, in which
states are considered partners in regulation.
In both the 1934 Act and the 1996 Act, Congress has taken pains to preserve
the overlapping jurisdiction of the states and the federal government over
the telecommunications industry. Specifically, the language of the 1996
Act compels the conclusion that Congress did not intend to occupy the
field of telecommunications regulation, and that it took explicit steps to
maintain the authority of state regulatory bodies to enforce and work
within the Act. For example, 47 U.S.C. § 251(d)(3) states:
In prescribing and enforcing regulations to implement the
requirements of this section, the Commission shall not preclude
the enforcement of any regulation, order, or policy of a State
commission that -
(A) establishes access and interconnection obligations of
local exchange carriers;
(B) is consistent with the requirements of this section; and
(C) does not substantially prevent implementation of the
requirements of this section and the purposes of this part.
(Emphasis added). Similarly § 252(e)(3) states "[n]otwithstanding
paragraph (2), but subject to section 253 of this title, nothing in this
section shall prohibit a State commission from establishing or enforcing
other requirements of State law in its review of an agreement." (Emphasis
added). Also § 261(c) states:
Nothing in this part precludes a State from imposing requirements
on a telecommunications carrier for intrastate services that are
necessary to further competition in the provision of telephone
exchange service or exchange access as long as the State's
requirements are not inconsistent with this part or the
Commission's regulations to implement this part.
(Emphasis added). These various statutes preserving state authority are
tied to specific aspects of the Act's requirements. Together, however,
these statutes indicate that despite the detailed requirements the Act
imposed on telecommunications operations, the regulatory scheme remains a
partnership between federal and state authorities, in which states are
granted broad power to regulate telecommunications as long as the states
do not act inconsistently with federal law. Accord Puerto Rico Tel. Co.
v. Telecommunications Regulatory Bd. of P.R., 189 F.3d 1, 14 (1st Cir.
1999) ("The Act exemplifies a cooperative federalism system, in which
state commissions can exercise their expertise about the needs of the
local market and local consumers, but are guided by the provisions of the
Act and by the concomitant FCC regulations.").
In Vermont, the Legislature has assumed those broad powers to regulate
telecommunications by granting the PSB general authority over the
industry. Three statutes define the board's jurisdiction in this area.
Title 30 V.S.A. § 203(5) gives the PSB jurisdiction over a "company
offering telecommunications service to the public on a common carrier
basis." The extent of this jurisdiction is further explained by 30 V.S.A.
§ 209(a)(3), which grants the board jurisdiction over the "manner of
operating and conducting any business subject to supervision under this
chapter, so as to be reasonable and expedient, and to promote the safety,
convenience and accommodation of the public." Finally, 30 V.S.A. § 2701
states that the board may require connections between "two or more
telephone companies . . . whose lines can be made to form a continuous line
of communication, by the construction and maintenance of suitable
connections, for the transfer of messages or conversation, and that public
convenience and necessity will be subserved thereby." Because of the
concurrence of federal and state authority over BAVT, our inquiry need not
extend beyond whether the PSB has the authority under these state laws to
impose the challenged requirements, and if so, whether the exercise of
that authority is consistent with federal law.
II. Nondiscriminatory Access
The nondiscriminatory element of the competitive checklist requires
BAVT to comply with the section of the Act that governs the general duty
of telecommunications carriers to interconnect their facilities to allow
for competition. For the purposes of the Act, BAVT is considered an
incumbent local exchange carrier (ILEC), which simply means that BAVT is
the current provider of local telephone service and that it already owns
many of the network facilities to which a competitive local exchange
carrier (CLEC) would need access to offer its own service. 47 U.S.C. §
251(c)(3), referenced in the competitive checklist, imposes on BAVT:
[t]he duty to provide, to any requesting telecommunications
carrier for the provision of a telecommunications service,
nondiscriminatory access to network elements on an unbundled
basis at any technically feasible point on rates, terms and
conditions . . . . An incumbent local exchange carrier shall
provide such unbundled network elements in a manner that allows
requesting carriers to combine such elements in order to provide
such telecommunications service." (Emphasis added).
Section 252(d)(1), also referred to by the competitive checklist, sets
forth the pricing standards for the network elements that an incumbent may
charge, but that statute is not relevant to this dispute. UNEs are the
facilities and equipment, including electronic systems, needed to provide
telephone service to a particular customer. 47 U.S.C. § 153(29). In the
typical local exchange network, the ILEC controls the majority of the UNEs
needed to provide service. In order for a competitor to offer local
telecommunications service, the CLEC may either construct an entire network
of its own - an obvious burden to market entry - or it may access the
incumbent's network elements through the methods described in the Act.
Certain elements, however, must be combined in order to provide service to
a particular area or customer. Because the UNEs belong to the incumbent,
one method
for a CLEC to establish local exchange service is to request that the
incumbent combine its UNEs in a manner that allows the CLEC to connect its
facilities with the combined UNEs, so that the competitor may provide
service to a particular customer.
BAVT argues that the state jurisdictional statutes do not grant the
board the necessary authority to require the company to offer combinations
of UNEs because there is no statute that requires BAVT to "improve its
network for the benefit of competitors." This argument, however, is based
on BAVT's characterization of the PSB order, which we find unpersuasive.
Drawing from 47 U.S.C. § 251(c)(3), the PSB order requires BAVT to connect
certain network elements that it normally combines at the request of a
CLEC "in order to facilitate local exchange competition." While it is
true that this step may benefit a competitor by making competition possible
in the first place, this is the stated intention of the 1996 Act. See
supra. Furthermore, such connections are plainly contemplated by 30
V.S.A. § 2701, which "requires that [a] connection be made" if a "physical
connection can reasonably be made" between "two or more telephone
companies." Id. In keeping with the language of that statute, the PSB
order mandates connections between two companies - BAVT and a CLEC - even
if a particular combination of UNEs must be connected within BAVT's
network in order to facilitate the overall connection between the
competitor's facilities and BAVT's network. See id..
Second, BAVT contends that the board's authority extends only to
regulating how BAVT operates and conducts "its business with its
customers." This assertion, however, has no support in the plain language
of the statutes. The general grant of authority contained in § 209(a)(3)
includes "operating and conducting any business subject to supervision
under this chapter." 30 V.S.A. § 209(a)(3). No limitation restricts the
board to regulating a business's dealing only with its
customers, but rather the jurisdictional statute extends the PSB's
authority to BAVT's entire operation. In exercising this authority, the
PSB order properly concerns how BAVT operates and conducts its business in
Vermont by modifying the manner in which it provides UNEs to CLECs.
When reviewing a decision by the PSB, this Court defers to the board's
expertise and informed judgment. Petition of Vt. Elec. Power Producers,
Inc., 165 Vt. 282, 288, 683 A.2d 716, 719 (1996). We apply a strong
presumption of validity to board orders and will accept its conclusions
and findings unless they are clearly erroneous. In re Green Mountain Power
Corp., 162 Vt. 378, 380, 648 A.2d 374, 376 (1994). Absent a compelling
indication of error, we will not disturb an agency's interpretation of
statutes within its particular area of expertise. In re Prof'l Nurses
Servs., Inc., 164 Vt. 529, 532, 671 A.2d 1289, 1291 (1996). Additionally,
our paramount goal in statutory construction is to give effect to the
Legislature's intent, Burlington Elec. Dep't v. Vermont. Dep't of Taxes,
154 Vt. 332, 335, 576 A.2d 450, 452 (1990), and we apply the plain meaning
of a statute where the language is clear and unambiguous, Reed v. Glynn,
168 Vt. 504, 506, 724 A.2d 464, 465 (1998).
Given our deferential standard of review of agency interpretations of
statutes within its expertise, we have no difficulty concluding that the
PSB properly exercised its authority under state law. Particularly, we
agree with the PSB that 30 V.S.A. § 209(a)(3) gives it broad authority to
regulate telecommunications companies to further competition in Vermont's
local exchange market. To the extent that § 209(a)(3) and § 2701 provide
overlapping authority by delineating both general and specific authority
to the board, we do not find either of the statutes to be superfluous. Cf.
In re Margaret Susan P., 169 Vt. 252, 263, 733 A.2d 38, 47 (1999). The
complexity and scope of the PSB's jurisdiction explains the Legislature's
need to describe the PSB's authority both generally and
specifically. Thus, the PSB order requiring BAVT to provide combinations
of UNEs that it ordinarily combines to CLECs is consistent with and
authorized by state law.
Having found that the PSB has state authority for its order, the only
remaining question is whether federal law preempts that authority. (FN3)
The supremacy clause of the United States Constitution allows federal law
to preempt fully state and local laws. U.S. Const. art. VI, cl. 2; Crosby
v. National Foreign Trade Council, 530 U.S. 363, 372 (2000). As discussed
above, however, the 1996 Act is part of a scheme of federal and state
regulation of telecommunications in which state law coexists with federal
law. Because the original PSB order's incorporation of the competitive
checklist required compliance with 47 U.S.C. § 251(c)(3) of the Act, it
follows that the accompanying statute regarding preservation of state
authority, 47 U.S.C. § 251(d)(3), controls our inquiry. Specifically, §
251(d)(3) preserves state authority to regulate the interconnection
requirements of telecommunications carriers as long as such requirements
are not inconsistent with the Act. See id.
Although we have recognized that "[t]here are four ways in which
federal law can preempt state law: explicit or implicit statutory
language, actual conflict or occupation of the field," In re Commercial
Airfield, 170 Vt. 595, 595, 752 A.2d 13, 14 (2000) (mem.), the only element
at issue here is whether "it is impossible for a private party to comply
with both state and federal law." Crosby, 530 U.S. at 372; Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). State law
will be preempted when there is actual conflict with federal law, but
"there is no
actual conflict where a collision between two regulatory schemes is not
inevitable." In re Stokes Communications Corp., 164 Vt. 30, 38, 664 A.2d 712, 717 (1995). We must determine, therefore, whether there is any
aspect of the PSB's order, and by extension, the state law that authorized
it, that conflicts with 47 U.S.C. § 251(c)(3). In other words, the
question before us is whether the Act prevents the PSB from requiring BAVT
to provide combinations of UNEs that it ordinarily combines, but that are
not currently combined to CLECs.
The status of federal law on this question is in flux. The FCC issued
a key rule following the passage of the Act that purported to interpret
the scope of § 251(c)(3)'s directive to ILECs to combine UNEs. One part
of that rule, 47 C.F.R. § 51.315(b) states, "an incumbent LEC shall not
separate requested network elements that the incumbent currently combines."
While this subsection of the rule prevented ILECs from separating UNEs
that were already combined, the next part requires an ILEC "to combine
unbundled network elements in any manner, even if those elements are not
ordinarily combined in the incumbent LEC's network." 47 C.F.R. §
51.315(c). The PSB's order, which requires the incumbent LEC to combine
elements, but only those elements that are ordinarily combined in the
ILEC's network, falls somewhere in the middle of these two sections.
This rule, however, was challenged across the country, and the cases
were consolidated in the Eighth Circuit. In Iowa Utilities Board v.
F.C.C., 120 F.3d 753 (8th Cir. 1997), the court struck down both 47 C.F.R.
§§ 51.315(b) and (c) on the grounds that they were inconsistent with the
Act. The court held that the language of 47 U.S.C. § 251(c)(3) does not
"levy a duty on the incumbent LECs to do the actual combining of
elements." Iowa Utilities, 120 F.3d at 813. The court invalidated 47
C.F.R. § 51.315(b) because "the rule would permit the new entrant access to
the incumbent LEC's network elements on a bundled rather than an unbundled
basis." Iowa Utilities, 120 F.3d at 813. Two years later, the Eighth
Circuit decision in Iowa Utilities concerning 47 C.F.R. § 51.315(b) was
reversed by the United States Supreme Court. In AT& T Corp. v. Iowa
Utilities
Board, 525 U.S. 366 (1999), the Court reinstated § 51.315(b) because,
without that section of the rule, "incumbents could impose wasteful costs
on even those carriers who requested less than the whole network. It is
well within the bounds of the reasonable for the Commission to opt in favor
of ensuring against an anticompetitive practice." Id. at 395. The Court
did not address the validity of the remainder of 47 C.F.R. § 51.315,
namely whether § 51.315(c) was within the bounds of the Act.
Following AT&T, therefore, it remains an open question whether the FCC
regulation that would explicitly require an incumbent to offer
combinations of UNEs not currently combined to a CLEC, 47 C.F.R. §
51.315(c), is valid. (FN4) We need not, however, resolve this question to
adjudicate the current dispute because the federal scheme does not outline
any limitations on state authority to regulate above and beyond the
minimum requirements of the Act. Regardless of whether 47 C.F.R. §
51.315(c) is valid, there is nothing this regulation, or any other, or in
the Act itself that prevents a state from requiring BAVT to provide
combinations of UNEs. For even if we assume that federal law does not
require such combinations, and we assume that § 51.315(c) remains invalid
as per Iowa Utilities, nothing in federal law prohibits the PSB ordering
such combinations to facilitate competition in local markets.
It is a well established principle of our federalism that federal law
sets only a floor the requirements of which may be exceeded by state law.
Thus, there can be no claim of preemption where federal law intends for
states to enforce their own regulatory requirements, in addition to the
minimum requirements set by federal law. See Vt. Agency of Natural
Resources v. Duranleau, 159 Vt. 233, 236-37, 617 A.2d 143, 145 (1992).
Cf. State v. Kirchoff, 156 Vt. 1, 4, 587 A.2d 988, 991 (1991) (holding
that Vermont Constitution is more protective of "open fields" from search
and seizure than the United States Constitution); State v. Badger, 141
Vt. 430, 449, 450 A.2d 336, 347 (1982) ("We are free, of course, to
provide more generous protection to rights under the Vermont Constitution
than afforded by the federal charter.").
More importantly, compliance with the PSB order does not interfere
with BAVT's ability to comply with federal law. Nor can we envision how
conflict between the state and federal regulatory schemes is "inevitable."
Stokes Communications, 164 Vt. at 38, 664 A.2d at 717. We confronted the
question of whether a state regulation conflicted with a federal scheme in
In re Vicon Recovery Systems, 153 Vt. 539, 572 A.2d 1355 (1990). In that
case, the parties argued that the PSB was preempted from regulating a
contract concerning power generation rates because of the federal Public
Utility Regulatory Policies Act of 1978 (PURPA). Although PURPA regulates
rates for power generation, there was nothing in the act to prevent
utilities from agreeing to a rate different from what would otherwise be
required by the federal law. Id. at 544, 572 A.2d at 1358. We held that
the PSB was not preempted from regulating the contract (i.e. the agreed
upon rate), because the exercise of state authority did not conflict with
federal law, which "specifically decline[d] to regulate the rate . . . at
issue." Id. at 544, 547, 572 A.2d at 1358-59.
Similarly, here the PSB order does not conflict with "the terms,
policies and practices" of the 1996 Telecommunications Act. Id. at 546,
572 A.2d at 1358 (internal citation omitted). Thus, a state board would
be preempted from, for example, requiring an ILEC to separate already
combined UNEs because this requirement would be inconsistent with 47
C.F.R. § 51.315(b) and AT&T. For the PSB, however, to exceed the
requirements of §51.315(b) and require BAVT to combine UNEs is not
inconsistent with the federal Act. Thus, we hold that this element of the
PSB's order is not inconsistent with the Act and is therefore not
preempted by federal law.
III. Resale of Telecommunications Services
The resale element of the competitive checklist requires BAVT to
comply with the section of the Act that imposes on incumbents the duty to
offer for resale various telecommunications services, so that a CLEC may
purchase the service from BAVT and then resell the service to a customer.
The section referenced in the competitive checklist states that BAVT has:
The duty -
(A) to offer for resale at wholesale rates any
telecommunications service that the carrier provides at retail to
subscribers who are not telecommunications carriers; and
(B) not to prohibit, and not to impose unreasonable or
discriminatory conditions or limitations on, the resale of such
telecommunications service . . . .
47 U.S.C. § 251(c)(4) (emphasis added.). The resale component of the
competitive checklist also refers to § 252(d)(3), which sets forth the
procedure by which a state board sets wholesale prices, but that section
is not in dispute. The PSB determined that one of the telecommunications
services that BAVT has to offer for resale is voice mail. Voice mail
functions much like a traditional stand alone answering machine except the
messages are stored by the local exchange service company.
Customers retrieve their messages by dialing the service provider's network
and listening to the messages over the telephone.
BAVT argues that there is no state authority to require the resale of
voice mail because the state jurisdictional grant over
"telecommunications" does not include voice mail. In granting the PSB
authority over a "company offering telecommunications service to the
public," the Legislature defined "telecommunications service" as:
[T]he transmission of any interactive two-way electromagnetic
communications including voice, image, data, and information.
Transmission of electromagnetic communications includes the use of
any media such as wires, cable, television cables, microwaves,
radio waves, light waves or any combination of those or similar
media. Telecommunications service does not include value added
nonvoice service in which computer processing applications are
used to act on the form, content, code and protocol of the
information to be transmitted unless those services are provided
under tariff approved by the public service board.
30 V.S.A. § 203(5). BAVT claims that voice mail is a "value added nonvoice
service," and thus falls precisely within the area the Legislature
excluded from the PSB's authority. Voice mail, according to BAVT, is not
a transmission service, but rather a "storage and retrieval service" that
is not part of local telephone service. BAVT places great significance on
the separation between voice messaging and telephone service that results
from the fact that voice mail involves a computer storing information in
digital form before it is transmitted to the intended recipient. BAVT
contends that the storage and delay are the "value added" to the normal
transmission service that exempts voice mail from the PSB's regulation.
The Department counters that voice mail fits squarely within the
definition of a "telecommunications service" and that, as a matter of
policy, requiring the resale of voice mail
promotes competition for local exchange customers. The PSB defines voice
messaging as a "two-way electromagnetic communication" that delays the
transmission of the voice of the sender until a later time. Although the
information is delivered at a different time, it remains unchanged in form
or content, and thus there is no "value added" to voice mail, according to
the PSB. The PSB found that voice mail has become widely used and is
almost an expected element of local telephone service. Therefore, the PSB
determined that requiring the resale of voice mail by BAVT was necessary to
promote the entry of CLECs into the local exchange market.
Whether voice mail is a "telecommunications service" or a "value added
nonvoice service" as a matter of state law is a question left to the
expertise of the PSB. Our standard of review dictates that we avoid
redeterminations of such technical issues absent clear error. In re Green
Mountain Power, 162 Vt. at 380, 648 A.2d at 376. Although BAVT's
arguments present a plausible alternative characterization of voice mail,
they do not approach identifying clear error in the PSB's decision. We
accept, therefore, the PSB's decision that voice mail is a
"telecommunications service" under the state law definition of 30 V.S.A. §
203(5). See In re Petition of Twenty-Four Vt. Utilities, 159 Vt. 339,
361, 618 A.2d 1295, 1308 (1992) ("[W]e accept the construction of a statute
by the administrative body responsible for its execution."). It follows
that the PSB's order requiring BAVT to offer voice mail for resale is
consistent with the board's jurisdictional grant. The PSB found that the
demand for voice mail is growing and that voice mail provides improved
access and functionality over customer-owned answering machines.
Requiring BAVT to make voice mail available to competitors is thus likely
to increase the ability of CLECs to sell their services to telephone
customers. Given these facts, the PSB's order satisfies the mandate of 30
V.S.A. § 209(a)(3) that the PSB promote the "convenience and accommodation
of the public," by fostering competition
between the incumbent and CLECs. Id. We conclude that state law
authorizes the PSB to require BAVT to offer voice mail for resale.
BAVT next argues that the PSB is preempted from regulating voice mail
because the federal definition of "telecommunications service" excludes
voice mail, superseding the state's definition of the term. Federal law
does define "telecommunications service" differently from Vermont law. The
federal definition includes "the offering of telecommunications for a fee
directly to the public," 47 U.S.C. § 153(46), and defines
"telecommunications" as "the transmission, between or among points
specified by the user, of information of the user's choosing, without
change in the form or content of the information as sent and received,"
id. § 153(43). Although voice mail appears to meet this definition,
federal law has defined another category of services called "information
service," which includes voice mail. Information services are "the
offering of a capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications." Id. § 153(20). The FCC has stated that voice mail
meets the definition of an "information service" and that an "information
service" cannot also be a "telecommunications service" because the two are
"separate non-overlapping categories." In re Federal-State Joint Board on
Universal Serv., 13 F.C.C.R. 11501, 11507-08 (1998); In re Application of
BellSouth Corp. for Provisions of In-region Interlata Serv. in La., 13
F.C.C.R. 20599, 20780-81 (1998). Accordingly, we agree with BAVT that as
a matter of federal law, the competitive checklist, which requires only
that "telecommunications service" be made available for resale, does not
apply to voice mail. (FN5)
Despite the federal definition of voice mail, BAVT's argument is
misguided. As discussed above, the PSB is using the federal Act as a
reference point to guide the merger between two telephone companies. In
this docket, the PSB has not required that BAVT comply with the
competitive checklist, or the other sections of the Act referenced therein
as a matter of federal law, but rather as a matter of state law. Thus the
requirement that BAVT offer "[t]elecommunications services . . . . for
resale," 47 U.S.C. § 271(c)(2)(B)(xiv), is a requirement of state law.
Because we conclude that the PSB's order was consistent with and
authorized by state law, we must examine only whether this state law is
inconsistent or conflicts with the federal law.
There is no conflict. By defining voice mail as an "information
service" and making "information service" mutually exclusive with
"telecommunications service," the FCC has removed voice mail from the
Act's relevant provisions entirely. Simply put, state law regulating voice
mail does not conflict with the Act because the Act does not regulate
voice mail. As noted above, state law does not interfere with federal law
where state law imposes stricter standards than federal law. See fn.3
supra; Florida Lime Avocado Growers, 373 U.S. at 142-43 (minimum federal
agricultural produce standards do not preempt more demanding state
standards). By extension, where federal law is silent on the issue, there
is no basis to conclude that state law conflicts with federal law.
Indeed, state regulation that reaches beyond federal law was explicitly
contemplated by the Act and its predecessor, the 1934 Communications Act.
See Iowa Utility Bd., 120 F.3d at 806 ("It is entirely possibly for a
state interconnection or access regulation, order or policy to vary from
specific FCC regulation and yet be consistent with the overarching terms
of section 251 [of 47 U.S.C.]."); see also La. Pub. Serv. Comm'n v.
F.C.C., 476 U.S. 355, 375 (1986) ("The Communications Act . . .
establishes dual state and federal regulation of telephone service; it also
recognizes that jurisdictional
tensions may arise."). As there is no conflict with federal law, the PSB
was free to act within the authority granted to it by state law and
require the resale of voice mail.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Bell Atlantic-Vermont also argues that the PSB erred in denying a stay
of its voice messaging requirement pending review by this Court. Given
our resolution of this case, this claim is moot.
FN2. BAVT was opposed at that hearing by appellees Department of Public
Service (the Department) and AT&T Communications of New England, Inc.
FN3. BAVT casts this argument twice in its briefs. First, it argues that
the PSB order violates federal law and second that the PSB order was
preempted by federal law. Both of these arguments, however, hinge on the
same claim - that the PSB order is inconsistent and conflicts with federal
law. We thus address this central question only once.
FN4. Indeed, to ground its order in federal law, the PSB determined that 47
C.F.R. § 51.315(b), which was reinstated by AT&T, encompasses the
requirement that BAVT combine UNEs that are ordinarily combined in its
network. Additionally, the PSB concluded that although AT&T did not
explicitly reinstate § 51.315(c), the rule requiring ILEC's to combine even
those UNEs not ordinarily combined in the network, the reasoning of the
decision makes clear that the Court intended to validate that part of the
rule as well.
FN5. In its original order, in which the PSB based its voice mail decision
in part on federal law, the PSB stated its belief that, based on more
recent FCC rulings, "information services" and "telecommunications
services" are no longer mutually exclusive. If this assessment were
accurate, voice mail may fall within the ambit of a federal
telecommunications service. On appeal, however, neither party advocates
this position and thus we will assume that federal law does not require the
resale of voice mail as a telecommunications service.
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