Frontier West Virginia sues public service commissioners

By Kyla Asbury | May 20, 2013

CHARLESTON - Frontier West Virginia Inc. is seeking declaratory judgment and an injunction against three Public Service Commissioners for issues concerning jurisdiction problems with Frontier's attachments to American Power Company's poles.

The three commissioners are Michael A. Albert, Jon W. McKinney and Ryan B. Palmer.

Appalachian Power Company and Wheeling Power Company were also named as defendants in the suit.

In 2007, approximately four years before the Federal Communications Commission issued its FCC Pole Attachment Order, a dispute arose between Frontier and the defendants over the rates, terms and conditions of Frontier's attachments to the defendants' poles , according to a complaint filed May 10 in the U.S. District Court for the Southern District of West Virginia at Charleston.

Frontier claims in light of the unavailability of relief from the FCC at the time, Frontier filed a formal complaint against the defendants with the Public Service Commission and the PSC never issued a substantive decision on the dispute.

Instead, the dispute was settled through a negotiated agreement that terminated on Dec. 31, 2011, and negotiations for a new agreement led to an impasse, according to the suit.

Frontier claims on March 2, 2012, the defendants filed a complaint with the PSC asking it to establish the rates for Frontier's attachments to the poles and the current dispute is not a part of or a continuation of the prior PSC proceeding.

On April 4, 2012, the PSC's staff advised the PSC that it should dismiss the case for lack of jurisdiction and direct the parties to take their dispute to the FCC because West Virginia "has not met the requirements for certification to the FCC that it regulates pole attachment rates," according to the suit.

Frontier claims on April 23, 2012, the PSC's staff again recommended dismissal and noted Frontier's decision to invoke its right to FCC review.

The PSC never issued a decision regarding the staff's recommendations to dismiss the dispute and on June 22, Frontier filed a pole attachment complaint against the defendants at the FCC, alleging they had denied Frontier the just and reasonable rates, terms and conditions to which it is entitled, according to the suit.

Frontier claims on Aug. 17, the defendants filed a response and before the FCC issued a substantive decision, on Nov. 1, after nearly seven months of PSC inactivity, the PSC filed a petition with the FCC requesting permission to interview and asking the FCC to dismiss or remand the dispute for resolution at the PSC.

On March 25, the Market Disputes Resolution Division of the FCC's Enforcement Bureau issued a letter ruling placing Frontier's FCC complaint "in abeyance until the case between the parties pending before the WVPSC is resolved," according to the suit.

Frontier claims on March 29, the PSC issued an order requiring the parties to provide it with the information necessary to establish a procedural schedule to govern the litigation of the complaint and on April 15, Frontier filed a Petition for Reconsideration or Clarification at the FCC, asking the FCC to reconsider its letter ruling or alternatively, to clarify that federal law governs the underlying dispute, irrespective of whether it is adjudicated at the PSC or the FCC.

On April 30, the PSC filed its response to Frontier's petition at the FCC and on May 6, the PSC issued a procedural order further asserting jurisdiction over the underlying dispute and establishing a full schedule for extensive litigation over the next several months, according to the suit.

Frontier claims because it is undisputed that the PSC has not satisfied any of the three statutory requirements for lawfully asserting jurisdiction over the rates, terms and conditions of Frontier's attachments to the defendants' poles, the PSC is now actively attempting to exercise jurisdiction, despite the jurisdictional problems raised by Frontier and the PSC staff.

Frontier is seeking for the Court to declare that the commissioners cannot regulate the rates, terms and conditions of Frontier's attachments to the defendants' poles and any and all orders concerning the rates, terms and conditions currently pending before the PSC are null, void and of no effect; and for the Court to issue a preliminary and permanent injunction to enjoin the commissioners from regulating the rates, terms and conditions of the attachments to the poles. It is being represented by Carte P. Goodwin, J. David Fenwick and Johnny M. Knisely II of Goodwin & Goodwin LLP.

U.S. District Court for the Southern District of West Virginia at Charleston case number: 2:13-cv-11037

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