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