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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. ACS of Alaska, Inc. v. Regulatory Commission of Alaska (12/12/2003) sp-5762

ACS of Alaska, Inc. v. Regulatory Commission of Alaska (12/12/2003) sp-5762

Notice:  This opinion is subject to correction before publication
in  the  Pacific Reporter.  Readers are requested to bring errors
to  the  attention of the Clerk of the Appellate  Courts,  303  K
Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax  (907)
264-0878,   e-mail   corrections@appellate.courts.state.ak.us.THE
SUPREME COURT OF THE STATE OF ALASKAACS OF ALASKA, INC.,  ACS  OF
)THE  NORTHLAND,  INC., and          )    Supreme  Court  No.  S-
10466ACS        OF        FAIRBANKS,        INC.,               )
)     Superior Court Nos.         Appellants,       )     3AN-98-
4759/4903/4905   CI   &                            )      3AN-99-
3494/3499         CI           v.                               )
)     O  P  I  N I O NREGULATORY COMMISSION )OF ALASKA,  and  GCI
)     [No.  5762  - December 12, 2003]COMMUNICATION CORP.,  d/b/a
)GENERAL  COMMUNICATION,   )INC.,                               )
)                                                      Appellees.
)________________________________)Appeal from the Superior  Court
of  the State of Alaska, Third Judicial District, Anchorage, John
Reese,  Judge.Appearances:  S. Lynn Erwin, Alaska  Communications
Systems, Anchorage, and Elizabeth H. Ross, Birch, Horton, Bittner
& Cherot, Washington, D.C., for Appellants.  Ron Zobel, Assistant
Attorney  General,  Anchorage, and  Bruce  M.  Botelho,  Attorney
General,  Juneau, for Appellee Regulatory Commission  of  Alaska.
Martin M. Weinstein, General Communication, Inc., Anchorage,  for
Appellee  GCI.Before:  Fabe, Chief Justice,  Matthews,  Eastaugh,
and  Bryner,  Justices.  [Carpeneti, Justice, not participating.]
FABE, Chief Justice.I.   INTRODUCTION
           This case arises under the local telephone competition
provisions  of the federal Telecommunications Act of  1996.   GCI
petitioned the Regulatory Commission of Alaska (RCA) to terminate
the  rural exemptions of three Alaska Communication Systems (ACS)
subsidiaries  so that GCI could compete with these  companies  in
rural Alaska.  The RCA terminated ACS's rural exemptions, and ACS
appeals  that decision.  Because the RCA erred in allocating  the
burden  of  proof  to ACS, we reverse and remand  for  additional
proceedings  before the RCA with GCI shouldering  the  burden  of
proof.  Additionally, because the RCA erred in terminating  ACS's
rural exemption for its Glacier State Study Area, we reverse that
decision.
II.  FACTS AND PROCEEDINGS
     A.   The Telecommunications Act of 1996
            The   federal  Telecommunications  Act  significantly
changed  the delivery of telephone service in this country.1   At
the  heart  of  the  Act,  and at issue in  this  case,  are  the
provisions  designed  to  promote local  telephone  competition.2
These  provisions eliminate state-imposed barriers to competition
and  force  incumbent local exchange carriers to  cooperate  with
their potential competitors.3  These competitors are referred  to
as  competitive  local exchange carriers.4  The  Act  facilitates
competition  in  a  number  of ways.5  First,  the  Act  requires
incumbents  to  allow  competitors  to  interconnect   with   the
incumbent's existing local network.6  This provision, referred to
as  interconnection, allows new entrants to use  the  incumbent's
existing  network to provide competing local telephone  service.7
Second,  the  unbundled  access provision  of  the  Act  requires
incumbents to provide competitors with access to elements of  the
incumbent's  network  on  an unbundled  basis.8   The  unbundling
provision  permits new entrants "that have not  completely  built
out  their  own networks to offer services over a combination  of
their  own facilities and those leased from incumbents."9  Third,
the  Act requires incumbents to sell to competitors, at wholesale
prices, any telecommunications services it sells to its customers
at  retail  rates.10  This provision, referred to as  the  resale
provision,  allows competitors to resell to customers  at  retail
prices  the  telecommunications services they purchase  from  the
incumbent at wholesale.11  These competitive provisions are found
in section 251(c) of the Telecommunications Act.
          Despite the Act's general theme favoring competition,12
Congress,  in  the  interest  of  promoting  universal   service,
exempted  rural  telephone companies from the  duty  to  compete.
Congress defined "rural telephone company" as
          a local exchange carrier operating entity to
          the extent that such entity -
          
          (A)  provides common carrier service to any
          local exchange carrier study area that does
          not include either -
          
               (i)  any incorporated place of 10,000
               inhabitants or more, or any part
               thereof, based on the most recently
               available population statistics of the
               Bureau of the Census; or
               
               (ii) any territory, incorporated or
               unincorporated, included in an urbanized
               area, as defined by the Bureau of the
               Census as of August 10, 1993;
               
          (B)  provides telephone exchange service,
          including exchange access, to fewer than
          50,000 access lines;
          
          (C)  provides telephone exchange service to
          any local exchange carrier study area with
          fewer than 100,000 access lines; or
          
          (D)  has less than 15 percent of its access
          lines in communities of more than 50,000 on
          February 8, 1996.[13]
          
Because these rural telephone companies are free from the

competitive obligations imposed by the Act, these ILECs remain

monopolist providers of local telephone service in their areas.

The rural exemption is contained in section 251(f)(1) of the Act

and provides, in pertinent part:

          Subsection (c) of this section shall not
          apply to a rural telephone company until (i)
          such company has received a bona fide request
          for interconnection, services, or network
          elements, and (ii) the State commission
          determines (under subparagraph (B)) that such
          request is not unduly economically
          burdensome, is technically feasible, and is
          consistent with section 254 of this title
          (other than subsections (b)(7) and (c)(1)(D)
          thereof).[14]
          
Until a state commission makes the requisite findings under these

three elements, rural telephone companies are exempt from

competition.15

     B.   The Rural Exemption Proceedings

          In April 1997 GCI requested interconnection with three

rural telephone companies.  These companies were PTI

Communications of Alaska, Inc., Telephone Utilities of Alaska,

Inc., and Telephone Utilities of the Northland, Inc.  These

companies are now subsidiaries of ACS and we refer to them

collectively as ACS.

          The Alaska Public Utilities Commission (APUC)16 held

public hearings in December 1997 to determine whether to

terminate ACS's rural exemptions.  In an order issued January 8,

1998, APUC continued ACS's rural exemptions reasoning that (1)

the evidence in the record did not support an affirmative finding

that the utility would not suffer an undue economic burden if the

exemptions were terminated and (2) support mechanisms had not yet

been reformed to accommodate competition in local service.

          GCI appealed APUC's decision to the superior court.

Finding that APUC had erroneously placed the burden of proof on

GCI, the superior court remanded the case to APUC for another

hearing.  APUC held a second hearing in June of 1999.  On June

30, 1999, APUC granted GCI's petition to terminate ACS's rural

exemptions.  APUC reasoned that adequate mechanisms were in place

to preserve and further universal service such that terminating

ACS's exemptions would not frustrate these goals.

          ACS petitioned APUC's successor, the RCA, for review of

the decision to terminate ACS's rural exemptions.  ACS asserted

that APUC's revocation of the exemptions "exposed high cost rural

consumers to the detriments of competition without establishing

the basis for offsetting competitive benefits."  Because the RCA

found that APUC's decision lacked an adequate analysis of the

disputed legal, factual, and policy issues, it granted ACS's

motion for reconsideration.  However, after reviewing the record,

the RCA affirmed APUC's termination of the utility's rural

exemptions.  ACS appealed to the superior court, Judge John E.

Reese presiding.  The superior court affirmed the RCA, and ACS

appeals the RCA's decision to this court.

III. STANDARD OF REVIEW

          We do not defer to a superior court decision when that

court acts as an intermediate court of appeal.17  We apply the

substitution of judgment standard when reviewing legal questions

that do not require agency expertise "or where the agency's

specialized knowledge and experience would not be particularly

probative as to the meaning of the statute."18

IV.  DISCUSSION

          A.    Progression of Federal and State Litigation Over
          47 U.S.C.  251(f)(1) Rural Exemption Proceedings
          
          The central issue on appeal is whether the RCA erred in

allocating the burden of proof to ACS in the rural exemption

proceeding.  Because telecommunications regulation is primarily

federal, it is important to view the history of the present

controversy in the context of significant federal litigation that

was proceeding simultaneously.

          1.   Iowa I

          Shortly before GCI sought to compete with ACS, the

Federal Communications Commission (FCC) promulgated a rule

allocating the burden of proof in rural exemption proceedings to

the incumbent local exchange carrier.19  The regulation provided:

"Upon receipt of a bona fide request for interconnection,

services, or access to unbundled network elements, a rural

telephone company must prove to the state commission that the

rural telephone company should be entitled . . . to continued

exemption" from the Telecommunications Act's interconnection

requirements.20

          Three months before APUC held the initial hearing in

this case, the United States Court of Appeals for the Eighth

Circuit vacated this rule in Iowa Utilities Board v. Federal

Communications Commission (Iowa I), reasoning that the FCC

exceeded its jurisdiction in promulgating the regulation.21  The

court noted:  "The plain meaning of subsection[] 251(f)(1)

(governing exemptions) . . . indicates that the state commissions

have the exclusive authority to make these determinations, and

nothing in [this provision], or in the Act generally, provides

the FCC with the power to prescribe the governing standards for

such determinations."22  The Eighth Circuit also looked to the

legislative history of the Telecommunications Act to support its

conclusion that the FCC exceeded its authority in promulgating 47

C.F.R.  51.405(a):

          Congress rejected both a Senate bill and a
          House bill that gave the FCC concurrent
          jurisdiction with state commissions to
          administer the exemption and waiver
          provisions. It would be unreasonable to infer
          from subsection 251(d) or the other general
          rulemaking provisions cited by the FCC that
          Congress intended to put the Commission - the
          agency it decided to exclude from the
          exemption process - in a position to dictate
          the substantive standards governing the
          exemption process.[23]
          
The clear guidance that the FCC had provided through its

regulation 47 C.F.R.  51.405(a) therefore no longer existed when

APUC first addressed this case.

          In the first hearing, APUC assigned the burden of proof

to GCI.  APUC denied GCI's petition to terminate ACS's rural

exemptions on January 8, 1998, and GCI appealed APUC's decision

to the superior court.

                    2.   United States Supreme Court's review of

               Iowa I and state superior court's response

          Prior to the superior court decision, the United States

Supreme Court reversed the Eighth Circuit's Iowa I ruling,

concluding that the FCC had "jurisdiction to promulgate rules . .

. regarding rural exemptions . . . ."24  The Court remanded the

case to the Eighth Circuit to consider the substantive challenges

to the regulation.25  The superior court had the benefit of the

Supreme Court's decision in deciding GCI's appeal from APUC.  The

superior court concluded that APUC erred in allocating the burden

of proof to GCI and remanded for another agency hearing, noting

that "fairness concerns prescribe the conclusion that the party

in control of the evidence, in this case [ACS], bears the burden

of proving that evidence."

          After the superior court remanded the case to APUC,

APUC held a second hearing in June 1999, with ACS shouldering the

burden of proof.  APUC issued its decision terminating the rural

exemptions on June 30, 1999.  In its brief order, APUC determined

that ACS would not face an undue economic burden, were it

required to interconnect with GCI.  Additionally, APUC noted that

GCI's request for interconnection was technically feasible.

Thus, APUC turned to consider whether interconnection would be

consistent with the goals of universal service.  APUC concluded

that federal and state universal service funds would adequately

preserve and advance universal service.  APUC emphasized the

importance of competition in its order:

          Without removal of [ACS's] rural exemption,
          it is questionable whether the rural portions
          of Alaska that are the subject of GCI's
          petition will ever have competitive local
          exchange service.  Therefore, the Commission
          has determined that it is appropriate to
          remove that roadblock and proceed down the
          path to competition.
          
The RCA reconsidered APUC's decision and affirmed on October 11,

1999.  ACS appealed to the superior court.

          3.   Eighth Circuit's decision on remand - Iowa II

          In the midst of ACS's administrative appeal to the

superior court, the Eighth Circuit decided Iowa Utilities Board

v. Federal Communications Commission26 (Iowa II).  This time, the

federal court vacated on substantive grounds the FCC's rule that,

under the Telecommunications Act, a rural incumbent telephone

company must bear the burden of proof in demonstrating to a state

commission that it is entitled to a continued exemption from

competition.27  The court reasoned that "[t]he plain meaning of

the statute requires the party making the request to prove that

the request meets the three prerequisites to justify the

termination of the otherwise continuing rural exemption."28

          In reviewing ACS's administrative appeal, Judge Reese

acknowledged the Eighth Circuit's authority but concluded that

any error in the burden of proof allocation was harmless, even in

light of Iowa II.  Judge Reese noted:  "This [c]ourt recognizes

the authority of the Eighth Circuit in this matter, but does not

find the Iowa Utilities Bd. II decision decisive on the outcome

of the current appeal."  Judge Reese emphasized that the RCA

based its decision on the evidence presented at the hearings and

not on a consideration of the burden of proof.  Judge Reese

concluded:

          This [c]ourt must determine the applicability

          of Iowa Utilities Bd. II to the current

          appeal.  The APUC used a record created in

          two separate hearings in its decision to

          terminate ACS['s] rural exemption.  Both ACS

          and GCI were responsible for bearing the

          burden of proof at one of the hearings.  Both

          ACS and GCI presented evidence and created a

          record accordingly.  The RCA found that the

          record from both hearings justified

          termination of the rural exemption.  The

          RCA's [decision to terminate ACS's rural

          exemptions] clearly shows that the Commission

          made its findings based on the weight of the

          evidence and not because of an unmet burden

          of proof[.]"

Implicit in Judge Reese's statement is an apparent determination

that any error in the allocation of proof to ACS in light of Iowa

II was harmless.  Accordingly, the superior court affirmed the

RCA's termination of ACS's rural exemptions.

          B.   The RCA Erred in Placing the Burden of Proof on

          ACS, the Incumbent Local Exchange Carrier.

          On appeal, ACS argues that the RCA erred in placing the

burden of proof on ACS because this is contrary to federal law as

announced in the Eighth Circuit's Iowa II decision.  In Iowa II,

the Eighth Circuit concluded that the plain meaning of 47 U.S.C.

 251(f)(1)(A) and (B) "requires the party making the request to

prove that the request meets the three prerequisites to justify

the termination of the otherwise continuing rural exemption."29

Given the Eighth Circuit's holding, ACS asserts that "federal law

squarely places the burden of proof on GCI rather than [ACS]."

          GCI responds to ACS's contentions with a number of

policy reasons for placing the burden of proof on ACS; two of

these reasons have some strength.30  First, GCI notes that ACS, as

the incumbent local exchange carrier, controls relevant

information on issues including:  its financial health and

status, its ability to withstand the expected competitive

pressures exerted by competition, its ability to withstand the

costs of providing the services requested by the competitor, and

its network design and ability to facilitate the competitor's

requests.  GCI asserts that because ACS has superior access to

this information, ACS should bear the burden of proof because it

is "in the best position to produce the relevant information and

to explain how competitive pressures could harm the incumbent or

service to rural customers."  Second, GCI argues that placing the

burden of proof on ACS is consistent with the Telecommunications

Act's statutory scheme for rural exemption proceedings.  This is

true, according to GCI, because under 47 U.S.C.  251(c), after a

competitor files notice with the state commission that it seeks

to compete with an incumbent, the state commission has 120 days

to gather the necessary information to determine whether to

terminate the incumbent's rural exemption.31  GCI argues that this

short time frame "does not permit rounds of discovery, delay and

associated costs frequently tolerated in the traditional model of

civil litigation."  GCI concludes that the limited time frame and

ACS's superior access to information relevant to the continuation

of its rural exemption weigh in favor of ACS's shouldering the

burden of proof.

          While we see the logic in GCI's arguments, policy

arguments cannot control the outcome in this case.  A number of

developments suggest to us that we should be guided by the Eighth

Circuit's decision in Iowa II.

          The United States Supreme Court has held that the FCC,

a federal agency, has jurisdiction to promulgate regulations

under the Telecommunications Act to guide state commissions.32

After the FCC promulgated regulations under the

Telecommunications Act, in its First Report and Order,33 numerous

parties challenged those regulations.34  Under the Hobbs Act, the

federal circuit courts of appeal have exclusive jurisdiction over

those challenges.  The Hobbs Act provides:

          The court of appeals (other than the United
          States Court of Appeals for the Federal
          Circuit) has exclusive jurisdiction to
          enjoin, set aside, suspend (in whole or in
          part), or to determine the validity of -
          
          (1)  all final orders of the Federal
          Communications Commission made reviewable by
          section 402(a) of title 47.[35]
          
The parties challenging the FCC regulations brought suits in

various federal appellate courts.36  When agency regulations are

challenged in multiple circuits, the panel on multidistrict

litigation, acting under 28 U.S.C.  2112, consolidates the

petitions and assigns them to a single court of appeal.37  The

panel assigned the challenges concerning the FCC's

Telecommunications Act regulations to the Eighth Circuit.38  Thus,

the Eighth Circuit became the only forum to consider the

challenges to the FCC regulations following the FCC's First

Decision and Order.39

          In addition to the FCC's jurisdiction to promulgate

regulations under the Telecommunications Act and the federal

appellate courts' (in this case, Eighth Circuit's) exclusive

jurisdiction to hear challenges to those regulations, the United

States Supreme Court has recognized the need for a national

standard for telecommunications regulation under the 1996 Act,

noting that the federal government has unquestionably "taken

local telecommunications competition regulation away from the

States [] [w]ith regard to the matters addressed by the 1996

Act," and that "a federal program administered by 50 independent

state agencies [would be] strange."40  All of these factors

suggest that we should look to the only available federal

guidance in deciding which party shoulders the burden of proof in

a rural exemption proceeding:  the Eighth Circuit's decision in

Iowa II.  The Eighth Circuit is the only federal court to speak

to the issue of the burden of proof allocation in rural exemption

proceedings under 47 U.S.C.  251(f)(1).  We adopt the Eighth

Circuit's holding that the competitor must bear the burden of

proof.  Therefore, we now turn to the question whether the RCA's

error in placing the burden of proof on ACS was harmless.

          1.   Harmless error analysis

          As discussed above, the superior court implicitly found

that any error in the RCA's allocation of the burden of proof to

ACS was harmless, noting: "The RCA's conclusion [to terminate

ACS's rural exemptions] clearly shows that the Commission made

its findings based on the weight of the evidence and not because

of an unmet burden of proof[.]"  Despite the superior court's

assertion, an examination of the RCA's analysis reveals that the

RCA did indeed base a number of its conclusions either on ACS's

failure to satisfy the burden of proof or on a general lack of

proof.  For example, when discussing the economic burden element

of section 251 (f)(1)(a), the RCA explicitly based its finding in

favor of GCI on the fact that "[t]he Commission finds that [ACS]

did not meet [its] burden of proving undue economic burden."

Similarly, with regard to one aspect of universal service, the

RCA based its decision in favor of GCI on the fact that "[t]here

was no showing by [ACS] that customers would have any less access

to advanced services than they do now if the rural exemption

[were] terminated."  The RCA's repeated dependence upon the

burden of proof allocation in reaching its decision suggests that

this error affected ACS's substantial rights.41  Because we cannot

conclude that the RCA's error was harmless, we remand this case

for the RCA to analyze the rural exemption issue with GCI

shouldering the burden of proof on the three elements of 47

U.S.C.  251(f)(1)(A):  undue economic burden, technical

feasibility, and universal service.

          2.   Proceedings on remand

          On remand, the RCA may elect to hold a supplemental

evidentiary hearing on one or more of the issues, as it sees fit.

The RCA is free to consider the current state of the evidence and

is not bound by the record before it in 1999 when it issued its

last order in these proceedings.  As noted above, GCI has

expressed concern about its ability to amass the relevant

information to shoulder its burden of proof.  Specifically, it

noted ACS's superior access to information and the short 120-day

time frame for the RCA to gather information before making its

decision.  These concerns can be relieved by the RCA's control

and management of the discovery process in the remand

proceedings. Generally, "the conduct and extent of discovery is

left to the sound discretion of the agency . . . ."42  The RCA may

order discovery and require ACS's active participation in

assisting GCI to analyze and organize the information, including

ordering ACS to produce summaries of information and provide

analyses to accompany documents it produces.43

          Moreover, because we are remanding this case to the

RCA, there will be a period of time between this decision and the

RCA's determination on remand.  Thus, we must consider how the

parties should proceed during that interim period.  ACS asks us

to roll the clock back and reinstate APUC's original 1998 order

in this case, in which APUC denied GCI's request to terminate

ACS's rural exemption.  GCI responds that reinstating the 1998

order would not be in the public interest, asserting that if the

1998 order were reinstated, service to its customers in the areas

covered by the order would be disrupted.  GCI also points out

that "[s]uch harm and confusion to the public might be entirely

unnecessary if the RCA were to subsequently terminate the rural

exemption again on remand."  We decline to reinstate APUC's

original order and instead leave it to the RCA's discretion

whether to continue the status quo and allow ACS and GCI to

provide service to these areas simultaneously.

          C.   The RCA Erred in Terminating ACS's Glacier State

          Study Area Exemptions.

          Initially, GCI sought to compete with ACS throughout

the Glacier State Study Area.  A "study area" is the designated

geographic area that a carrier serves.44  The Glacier State Study

Area encompasses areas near Fairbanks, on Kodiak Island, and

cities on the Kenai Peninsula.  GCI formally withdrew its request

to compete with ACS throughout the entire Glacier State Study

Area, however.  Thereafter, GCI maintained that its request was

limited to only one exchange in the Glacier State Study Area.  As

Gene Strid, GCI witness and Vice President and General Manager of

Local Services at GCI, explained at the first hearing:  "GCI at

the present time seeks an interconnection for the termination and

transport of local traffic, only at [ACS's] North Pole exchange."

On remand, in May of 1999, Strid gave identical testimony.  He

testified explicitly that GCI had not requested interconnection

at any other location in the Glacier State Study Area.  "At the

present time no interconnection other than at the North Pole wire

center is contemplated."  At the June 1999 remand hearing before

APUC, Strid testified on cross-examination that GCI was only

seeking collocation at the North Pole exchange office.  The RCA

appeared to understand the limited nature of GCI's request,

recognizing that "GCI's request as modified during the hearing

process is for interconnection at one location and resale

throughout the balance of [ACS's] service area."

          Ultimately, however, the RCA terminated ACS's

exemptions for the entire Glacier State Study Area.  ACS appealed

this decision, arguing primarily that by terminating ACS's

exemption for the entire study area, despite GCI's limited

request, the RCA acted contrary to the plain language of section

251(f)(1)(A) of the Telecommunications Act.  The superior court

affirmed the RCA's decision without discussing the scope of the

Glacier State termination.  ACS then filed a motion for

clarification with the RCA, requesting that the RCA specify

whether the scope of the termination was limited to the

parameters of GCI's request.  The RCA denied this motion.

          ACS argues that the RCA erred by terminating its rural

exemption for the entire Glacier State Study Area when GCI made

only a limited request.  The RCA responds that a "partial" or

"divisible" exemption cannot be granted under section 251(f) and

that, once a bona fide request - even a narrow, localized request

- is made, and once evidence supporting that request is

presented, the Act requires the RCA to terminate the areawide

exemption completely.  But we find this response unpersuasive.

The RCA cites no authority to support its reading of section

251(f).  Moreover, nothing in section 251(f)'s language precludes

localized termination or requires areawide termination when, as

here, a request is specifically limited to one exchange among

many included in an exempted study area.  Indeed, the RCA's

proposed reading of section 251(f) would invite anomalous

consequences, for it would open broad areas to competition based

on artificially constricted evidence and findings concerning the

economic and technical hardships that a competitor's presence

might create in an isolated segment of the exempted area.  We

thus agree with ACS's argument and hold that, even if the burden

of proof had been properly allocated, the RCA would have erred in

terminating the Glacier State Study Area exemption, except as it

applied to the North Pole exchange.

V.   CONCLUSION

          Because the RCA erred in allocating the burden of proof

to ACS, we REVERSE and REMAND the RCA's decision.  Additionally,

we REVERSE the RCA's decision with regard to the Glacier State

Study Area.

_______________________________
1See, e.g., Stuart Minor Benjamin et al., Telecommunications  Law
and  Policy  717 (2001); Salvatore Massa et al., Pricing  Network
Elements  Under the Telecommunications Act of 1996: Back  to  the
Future, 23 Hastings Comm. & Ent. L.J. 751, 752 (2001) (noting Act
is  "revolutionary piece of legislation"); Aimee M. Adler,  Notes
and  Comment,  Competition in Telephony: Perception  or  Reality?
Current Barriers to the Telecommunications Act of 1996, 7 J.L.  &
Pol'y 571, 571 (1999).
2Benjamin  et  al., supra Telecommunications Law and  Policy,  at
716.
3Id.
4Id. at 1047.
547  U.S.C.  251(c) (2001); Michael Glover & Donna Epps,  Is  the
Telecommunications Act of 1996 Working?, 52 Admin. L. Rev.  1013,
1014 (2000).
647 U.S.C.  251(c)(2) (2001).
7Id.
847 U.S.C.  251(c)(3) (2001).
9Glover and Epps, supra at 1014.
1047 U.S.C.  251(c)(4) (2001).
11Id.
12Benjamin et al., supra n.1.
1347 U.S.C.  153(37) (2001).
1447 U.S.C.  251(f)(1)(A) (2001).
15Id.
16APUC is the forerunner to the RCA.  On July 1, 1999, APUC ceased
to exist and the RCA assumed its duties.  Ch. 25, SLA 1999.
17Tlingit-Haida  Reg'l Elec. Auth. v. State,  15  P.3d  754,  761
(Alaska  2001); United Utils., Inc. v. Alaska Pub. Utils. Comm'n,
935 P.2d 811, 814 (Alaska 1997).
18Tesoro  Alaska Petroleum Co. v. Kenai Pipe Line Co.,  746  P.2d
896,  903  (Alaska  1987); see also id. ("  `[This]  standard  is
appropriate where the knowledge and experience of the  agency  is
of  little  guidance  to  the court or where  the  case  concerns
statutory interpretation or other analysis of legal relationships
about   which   the   courts  have  specialized   knowledge   and
experience.' ") (quoting Earth Res. Co. of Alaska v. State, Dep't
of  Revenue, 665 P.2d 960, 965 (Alaska 1983) (internal quotations
omitted)).
1947 C.F.R.  51.405(a) (2002).
20Id.
21120 F.3d 753, 802 (8th Cir. 1997), aff'd in part, rev'd in part,
525 U.S. 366 (1999).
22Id.
23Id.  (citing S. Rep. No. 104-23, 1995 WL 142161  at  *206-07  (
251(i)(3)) (1995); H.R. 1555, 104th Cong.  242(e) (1995)).
24AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 385 (1999).
25Id. at 385, 397.
26219 F.3d 744 (8th Cir. 2000), reversed in part on other grounds
by  Verizon Communications, Inc. v. Fed'l Communications  Comm'n,
535 U.S. 467 (2002).
27Id. at 762.
28Id.
29Id.
30In  addition to the policy reasons put forward by GCI, the  RCA
argues  that  after the first appeal from APUC  to  the  superior
court, the superior court's allocation of the burden of proof  to
ACS became the law of the case.  "The doctrine of law of the case
requires  a  lower  court  to follow an appellate  court's  prior
decision and prohibits reconsideration of issues which have  been
adjudicated in an appeal of the case."  Bauman v. Day,  942  P.2d
1130,  1132 n.1 (Alaska 1997).  To the extent that APUC was bound
by  the superior court's decision on remand, the superior court's
allocation of the burden of proof to ACS was the law of the case.
We, however, are not bound by the superior court's allocation  of
the  burden of proof, as this issue has not been brought to  this
court before.  See, e.g., Denuptiis v. Unocal Corp., 63 P.3d 272,
277 (Alaska 2003).
3147 U.S.C.  251(f)(1)(A), (B) (2001).
32AT&T Corp. v. Iowa Utils Bd., 525 U.S. 366, 385 (1999).
33See  GTE  South, Inc. v. Morrison, 199 F.3d 733, 737 (4th  Cir.
1999)  (citing  In  the  Matter of Implementation  of  the  Local
Competition  Provisions in the Telecommunications  Act  of  1996,
First Report and Order, 11 F.C.C.R. 15499 (1996)).
34MCI  Telecommunications Corp. v. U.S. West Communications,  204
F.3d 1262, 1267 (9th Cir. 2000).
3528 U.S.C.  2342 (1994).
36MCI, 204 F.3d at 1267.
37Id.
38Id.
39GTE South, Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir. 1999).
40AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 n.6 (1999).
41Alaska  R.  Civ. P. 61; see, e.g., Sloan v. Atlantic  Richfield
Co.,  541 P.2d 717, 722 (Alaska 1975) (noting appellant must show
substantial prejudice to demonstrate error not harmless).
42Charles H. Koch, Administrative Law and Practice  5.40 (2d  ed.
1997).
43The  legislature  has accorded to the RCA authority  to  "issue
subpoenas, subpoenas duces tecum, and other process to compel the
attendance of witnesses and the production of testimony, records,
papers, accounts, and documents in a[] . . . hearing . . . .  The
commission  may  petition a court of this state  to  enforce  its
subpoenas,   subpoenas  duces  tecum,  or  other  process."    AS
42.05.151(c).
4447  U.S.C.  214(e)(5) (2001).  ACS-N has two study  areas,  the
Glacier State Study Area and the Sitka Study Area.