AT&T Communications v. Nebraska Public Serv. Comm.

AT&T C ommuniCATions of The midwesT, inC., And TCG
omAhA, inC., An iowA TeleCommuniCATions CorporATion,
AppellAnTs And Cross -Appellees , v. nebrAskA publiC
serviCe C ommission, An AdminisTrATive AGenCy of
The sTATe of nebrAskA, eT Al ., Appellees And
Cross -AppellAnTs , And C enTurylink ,
A louisiAnA TeleCommuniCATions
CorporATion, eT Al ., Appellees.
811 N.W.2d 666
Filed February 3, 2012. 	No. S-11-258.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue
2008, Cum. Supp. 2010 & Supp. 2011), for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Appeal and Error. In an appeal under the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp.
2010 & Supp. 2011), an appellate court will not substitute its factual findings
for those of the district court where competent evidence supports the district
court’s findings.
4. Administrative Law: Statutes: Appeal and Error. The interpretation of statutes
and regulations presents questions of law, in connection with which an appellate
court has an obligation to reach an independent conclusion irrespective of the
decision made by the court below.
5. Statutes: Appeal and Error. The rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute, and to rec-
oncile different provisions of the statute so they are consistent, harmonious,
and sensible.
6. Statutes: Legislature: Intent. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should be conjunc-
tively considered and construed to determine the intent of the Legislature, so that
different provisions are consistent, harmonious, and sensible.
7. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
Appeal from the District Court for Lancaster County: kAren
b. flowers, Judge. Reversed and remanded with directions.
204 	283 NebRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

Loel P. brooks, of brooks, Pansing & brooks, P.C., L.L.o.,
and Leo J. bub for appellants AT&T Communications of the
Midwest, Inc., and TCG omaha, Inc.
Jon bruning, Attorney General, and L. Jay bartel for appel-
lee Nebraska Public Service Commission.
Paul M. Schudel and James A. overcash, of Woods &
Aitken, L.L.P., for appellees “Rural Independent Companies.”
Steven G. Seglin, of Crosby Guenzel, L.L.P., for appellee
MCI Communications Services, Inc., doing business as Verizon
business Services.
heAviCAn, 	C.J., 	C onnolly, 	G errArd, 	mCC ormACk , 	and
miller-lermAn, JJ.
heAviCAn, C.J.
INTRoDUCTIoN
This case involves a dispute between AT&T Communications
of the Midwest, Inc., and TCG omaha, Inc. (collectively
AT&T), and the Nebraska Public Service Commission (PSC)
regarding the correct interpretation of Neb. Rev. Stat. § 86-140
(Reissue 2008). That section governs the regulation of access
charges. In its order, the PSC determined that telecommu-
nications companies like AT&T could seek the negotiation
and review of access charges under § 86-140 only when a
local exchange carrier had implemented new or revised access
charges, and not “at will,” as was contended by AT&T.
AT&T appealed to the district court, which reversed in
part and in part modified the decision of the PSC. AT&T now
appeals from the order of the district court, and the PSC, joined
by various rural independent telecommunications companies,
cross-appeals. We reverse the decision of the district court
and remand the cause to the district court with directions to
remand the case to the PSC to enter an order consistent with
this opinion.
AT&T CoMMUNICATIoNS v. NebRASkA PUbLIC SeRV. CoMM. 	205
Cite as 283 Neb. 204

bACkGRoUND
on February 24, 2009, the PSC opened an investigation into
access charge policies under § 86-140. Though not entirely
clear from the record, it appears this investigation stemmed,
at least in part, from an access charge dispute between AT&T
and a local exchange carrier which required an interpretation
of § 86-140.
Section 86-140 provides in relevant part:
(1) Access charges imposed by telecommunications
companies for access to a local exchange network for
interexchange service shall be negotiated by the tele-
communications companies involved. Any affected tele-
communications company may apply for review of such
charges by the commission, or the commission may make
a motion to review such charges. Upon such application
or motion and unless otherwise agreed to by all parties
thereto, the commission shall, upon proper notice, hold
and complete a hearing thereon within ninety days of the
filing. The commission may, within sixty days after the
close of the hearing, enter an order setting access charges
which are fair and reasonable. The commission shall set
an access charge structure for each local exchange car-
rier but may order discounts where there is not available
access of equal type and quality for all interexchange car-
riers, except that the commission shall not order access
charges which would cause the annual revenue to be real-
ized by the local exchange carrier from all interexchange
carriers to be less than the annual costs, as determined by
the commission based upon evidence received at hearing,
incurred or which will be incurred by the local exchange
carrier in providing such access services. Any actions
taken pursuant to this subsection shall be substantially
consistent with the federal act and federal actions taken
under its authority.
. . . .
(3) For purposes of this section, access charges means
the charges paid by telecommunications companies to
local exchange carriers in order to originate and terminate
calls using local exchange facilities.
206 	283 NebRASkA RePoRTS

on April 23 and June 10, 2009, AT&T and several other
interested parties filed comments as part of the PSC’s inves-
tigation. on January 6, 2010, the PSC held a hearing on the
issue. More comments were filed by AT&T and others on
February 16 and 26.
on April 20, 2010, the PSC issued an order concluding that
negotiation and review under § 86-140 was available for only
new or revised access charges. AT&T requested a review of
that order with the district court on May 20. A hearing was
held on August 30, and on February 24, 2011, the district court
entered its order holding that § 86-140 was available for new
or revised access charges and also in those situations where
prior agreements regarding access charges had expired and
negotiations for a new agreement were unsuccessful. AT&T
filed a motion for clarification, which was denied. AT&T now
appeals. The PSC, joined by the rural independent companies,
cross-appeals.
ASSIGNMeNTS oF eRRoR
on appeal, AT&T assigns, restated, that the district court
erred in its interpretation of § 86-140. Specifically, AT&T
argues that it is entitled to seek negotiation and review under
§ 86-140 at any time, or “at will,” and not just during the time
periods as found by the district court.
on cross-appeal, the PSC and the rural independent com-
panies assign, also restated and consolidated, that the district
court erred in failing to affirm the PSC’s finding that only new
or revised access charges are reviewable under § 86-140.
STANDARD oF ReVIeW
[1-3] A judgment or final order rendered by a district court in
a judicial review pursuant to the Administrative Procedure Act,
Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp.
2010 & Supp. 2011), may be reversed, vacated, or modified by
an appellate court for errors appearing on the record.1 When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
1 Tyson Fresh Meats v. State, 270 Neb. 535, 704 N.W.2d 788 (2005).
AT&T CoMMUNICATIoNS v. NebRASkA PUbLIC SeRV. CoMM. 	207
Cite as 283 Neb. 204

is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.2 In an appeal under the Administrative Procedure
Act, an appellate court will not substitute its factual findings
for those of the district court where competent evidence sup-
ports the district court’s findings.3
[4] The interpretation of statutes and regulations presents
questions of law, in connection with which an appellate court
has an obligation to reach an independent conclusion irrespec-
tive of the decision made by the court below.4
ANALYSIS
Arguments of Parties.
The only issue presented by AT&T’s appeal and the PSC’s
and the rural independent companies’ cross-appeals is the
proper interpretation of § 86-140(1). AT&T argues that the
PSC and the district court erred by not holding that § 86-140
permits a telecommunications company to initiate negotia-
tions concerning access charges at any time and, failing such
negotiations, seek “at will” review of such access charges.
Specifically, AT&T contends that there is no language in
§ 86-140 imposing any limits on an affected carrier’s right
to seek negotiations and review of another carrier’s access
charges.
In support of its interpretation, AT&T directs this court to the
federal Telecommunications Act of 1996 and 1999 Neb. Laws,
L.b. 514, which was the Legislature’s response to the 1996
federal act. Specifically, AT&T argues that L.b. 514 sought to
make access charge reform and the review of access charges
“easier, more standardized and more rapidly responsive to the
ever-changing demand of the nation’s regulatory environment
and competitive market conditions.”5 but, AT&T contends, the
district court’s order does the opposite: it “restrict[s], limit[s],
2 Id.
3 Id.
4 Id.
5 brief for appellants at 12.
208 	283 NebRASkA RePoRTS

encumber[s and] discourage[s] access reform and the review of
carrier access charges.”6
The PSC and the rural independent companies, while agree-
ing with the district court that “at will” review is unavailable,
take issue with the district court’s further conclusion that
review under § 86-140 is also available for expired agreements.
essentially, they argue that review is available under § 86-140
for only new and revised access charges.
The PSC and the rural independent companies first suggest
that AT&T’s interpretation allowing “at will” review would
render the negotiation requirement of § 86-140 meaningless
and would open the floodgates to access charge reviews,
which under the statute have to be conducted within a rela-
tively short timeframe. They suggest that allowing such a
review would overwhelm the PSC. They further reason that
other avenues exist for an “at will” review, namely Neb. Rev.
Stat. § 75-119 (Reissue 2009). This section, codified within
the statutes setting forth more general provisions relating to
the PSC, states:
When any common carrier or other interested person
petitions the commission alleging that a rate, rule, or
regulation should be prescribed when none exists or alleg-
ing that an existing rule, regulation, or rate is unreason-
ably high or low, unjust, or discriminatory, notice shall be
given to the common carriers affected in accordance with
the commission’s rules for notice and hearing. The mini-
mum notice to be given under this section shall be ten
days. The order granting or denying the petition or appli-
cation shall be mailed to the parties of record. If a petition
or application is not opposed after notice has been given,
the commission may act upon such petition or application
without a hearing.
The PSC and the rural independent companies argue that
because of the availability of this review process, the Legislature
did not intend for § 86-140 to be the primary mechanism to
conduct such reviews.
6 Id.
AT&T CoMMUNICATIoNS v. NebRASkA PUbLIC SeRV. CoMM. 	209
Cite as 283 Neb. 204

They also contend that the “filed rate” doctrine is applicable
here and that application of this doctrine requires the conclu-
sion that, as was found by the PSC, only new and revised
access charges are subject to review.
The “filed rate” doctrine, which has been adopted in both
Nebraska7 and other jurisdictions,8 prohibits a regulated entity,
like a telecommunications common carrier, from charging any
rate other than the rate filed with the relevant regulatory
authority—in this case, the PSC.9 The purpose of the doctrine
is to (1) preserve the regulating agency’s authority to determine
the reasonableness of the rate and (2) ensure that the regulated
entities charge only those rates that the agency has approved
or has been aware of as the law may require.10 Consistent with
this doctrine, the PSC and the rural independent companies
assert that it is not an agreement between the parties that estab-
lishes these access charges, but instead, the access charges are
controlled by the rate sheets filed by the various carriers. And
because a rate sheet controls until a new one is filed by a car-
rier, there can never be an expiring agreement. As such, the
district court was incorrect insofar as it concluded that expiring
agreements were subject to review under § 86-140.
Resolution.
our rules of statutory interpretation are familiar. In examin-
ing the language of a statute, its language is to be given its
plain and ordinary meaning, and an appellate court will not
resort to interpretation to ascertain the meaning of statutory
words which are plain, direct, and unambiguous.11
Section 86-140 states that “[a]ccess charges . . . shall be
negotiated by the telecommunications companies involved,”
and further that “[a]ny affected telecommunications company
7 See In re Formal Complaint of Nebco, Inc., 212 Neb. 804, 326 N.W.2d 167
(1982).
8 See, e.g., H.J. Inc. v. Northwestern Bell Telephone Co., 954 F.2d 485, 488
(8th Cir. 1992).
9 See Firstcom, Inc. v. Qwest Corp., 555 F.3d 669 (8th Cir. 2009).
10 H.J. Inc. v. Northwestern Bell Telephone Co., supra note 8.
11 Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
210 	283 NebRASkA RePoRTS

may apply for review of such charges . . . .” our examination
reveals nothing in § 86-140 that would limit the availability
of the negotiation and review process, nor will this court read
such limitations into § 86-140.
[5-7] We agree with the PSC and the rural independent
companies that the rules of statutory interpretation require this
court to give effect to the entire language of a statute, and to
reconcile different provisions of the statute so they are consist-
ent, harmonious, and sensible.12 Moreover, as the PSC also
notes, components of a series or collection of statutes pertain-
ing to a certain subject matter are in pari materia and should be
conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.13 However, neither of these prin-
ciples allows this court to read into a statute a meaning that is
not there.14 And the language of § 86-140 is plain, direct, and
unambiguous, and not in need of any further interpretation.
The Legislature could easily have chosen to include lan-
guage in § 86-140 that would limit the rights of telecommuni-
cations companies to seek negotiation and review. It failed to
do so. We accordingly conclude that the decision of the district
court placing certain limitations on the § 86-140 negotiation
and review process is reversed, and the cause is remanded with
directions. We conclude that the plain language of § 86-140
envisions both a negotiation and a review process that is not
limited by the statute. While we acknowledge the PSC and the
rural independent companies’ concerns regarding the practical
consequences of our holding today, we are constrained by the
words chosen by the Legislature in enacting § 86-140. And
simply put, those words contain no limitation on the right to
negotiate or review access charges.
Given this conclusion, we reject the PSC’s and the rural
independent companies’ cross-appeals.
12 See Gilroy v. Ryberg, 266 Neb. 617, 667 N.W.2d 544 (2003).
13 See Travelers Indem. Co. v. Gridiron Mgmt. Group, 281 Neb. 113, 794
N.W.2d 143 (2011).
14 See Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., 281 Neb. 93, 798
N.W.2d 823 (2011).
AT&T CoMMUNICATIoNS v. NebRASkA PUbLIC SeRV. CoMM. 	211
Cite as 283 Neb. 204

CoNCLUSIoN
The decision of the district court is reversed. We remand the
cause to the district court with directions to remand the case to
the PSC to enter an order not inconsistent with this opinion.
reversed And remAnded wiTh direCTions.
wriGhT and sTephAn, JJ., not participating.
sArpy C ounTy fArm bureAu, A nebrAskA nonprofiT
CorporATion, eT Al ., Appellees , v. leArninG C ommuniTy
of douGlAs And sArpy C ounTies , eT Al ., AppellAnTs ,
And sArpy C ounTy TreAsurer , riCh JAmes ,
in his offiCiAl CApACiTy, eT Al ., Appellees.
808 N.W.2d 598
Filed February 3, 2012. 	No. S-11-805.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Pleadings. A pleading serves to guide the parties and the court in the conduct of
cases, and thus the issues in a given case are limited to those which are pled.
3. Legislature: Municipal Corporations: Taxation: Property. The levy of a
property tax by a local governmental unit should not be treated as a state levy
for state purposes merely because the Legislature has authorized or required the
local governmental unit to make the levy. The converse is also true; where the
Legislature has authorized and required local governmental units to make a prop-
erty tax levy for state purposes, it should not be treated as a local levy for local
purposes merely because it is made by a local governmental unit.
4. Taxation. The fact that a tax is for a governmental purpose does not auto-
matically make it for state purposes rather than local purposes. This is so because
in many, if not most, cases a governmental function may be accurately described
as having both state and local purposes.
5. Statutes: Intent. Where state and local purposes are commingled in a statutory
enactment, the crucial determination is whether the controlling and predominant
purposes are state purposes or local purposes. While this is a judicial ques-
tion, there is no sure test by which state purposes may be distinguished from
local purposes. The court must consider each case as it arises and draw the line
of demarcation.
6. Taxation: Statutes: Legislature: Intent: Evidence. In deciding whether a state
or a local purpose predominates, the language of the statutory scheme is of prime
212 	283 NebRASkA RePoRTS