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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.
