DR 97-187
wilton telephone and hollis telephone
companies
Show Cause Why the Companies Should Not be Fined for
Operating in Violation of Commission Order
Order Dismissing Show Cause Order
O R D E R N O. 22,823
January 6, 1998
On September 16, 1997, the New Hampshire Public
Utilities Commission (Commission) issued Order No. 22,724 which
required Wilton Telephone Company (Wilton) and Hollis Telephone
Company (Hollis) to show cause why they should not be fined for
violation of Order No. 22,281 (August 16, 1996) regarding
necessary steps in becoming a toll provider prior to intraLATA
presubscription.
The relevant facts for the purposes of this order,
briefly, are these: On April 29, 1997, Wilton and Hollis filed
tariffs with the Commission to become the designated toll
provider in their franchise areas. The Commission did not act on
the filings and on June 2, 1997, Wilton and Hollis replaced NYNEX
as the toll provider for its service territory. IntraLATA
presubscription was also implemented June 2, 1997.
Wilton and Hollis argued that the Show Cause order
should be dismissed because they had been entitled to become the
toll provider for their franchise areas pursuant to the terms of
the Stipulation reached in DE 90-002 and each company's toll
tariff. Further, because the Commission did not respond during
the 30 day period from their toll provider filings, they believed
the authorization had been granted by operation of law, pursuant
to RSA 378:3.
In addition, Wilton and Hollis argued that the Show
Cause order should be dismissed as an unconstitutional
proceeding. Wilton and Hollis asserted a right to jury trial on
any action that could result in a penalty of greater than $1,500.
The Show Cause order noticed the possibility of a fine exceeding
that amount.
Commission Staff (Staff) submitted on October 7, 1997,
a response which conceded that some administrative errors were
made in processing Wilton and Hollis' toll provider filings.
Because of the facts of these particular filings, Staff
recommended granting the Motion to Dismiss. It also recommended,
however, that the Commission investigate the overearnings of
Wilton and Hollis and the companies' use of overearnings to
subsidize their toll rates.
We are persuaded by Wilton and Hollis' recitation of
the facts that it would not be appropriate to further pursue
fines for their actions in becoming the designated toll provider
in their franchise areas. We will, therefore, grant the Motion
to Dismiss. We make no ruling regarding the right, if any, of a
utility to a jury trial in an instance such as this.
We will grant Staff's request that it continue to
review the two companies' overearnings and use of those excess
earnings to subsidize their toll rates. We direct Staff to
report to the Commission the results of that review within 60
days of this order.
Based upon the foregoing, it is hereby
ORDERED, that the Motion to Dismiss filed by Wilton and
Hollis is GRANTED; and it is
FURTHER ORDERED, that the Staff review the overearnings
of the two companies and use of those excess earnings and report
the results of that review within 60 days of this order.
By order of the Public Utilities Commission of New
Hampshire this sixth day of January, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary