A decision made by the Public Services Commission in May allowing Momentum Telecom to provide telecommunications services in the territory raised heavy objections Tuesday night from provider AT&T, whose attorney said the PSC violated the company’s due process rights and shouldn’t have been able to consider Momentum’s application in the first place.
At the end of almost two hours of back and forth, the PSC decided to remand its ruling back to the hearing examiner for further discussion.
During Tuesday’s special meeting on St. Thomas, AT&T attorney Mark Kragel said that there was, through the whole consideration process, “confusion” over what the PSC’s role was in regulating companies such as Momentum, which he said does not provide internet, broadband, telephone or wireless service.
By law, the PSC is limited to regulating public utilities providing telephone services and, as such, “had no jurisdiction to entertain” Momentum’s application “to begin with,” Kragel said.
A hearing examiner, PSC Chairman Johan Clendinen, was appointed to vet Momentum’s application last year after it was filed. Two public hearings were held in May to discuss the matter and, at the end of that process, the PSC voted to approve Momentum’s application.
At the time, Clendinen wrote in a report that "Momentum Inc.’s application is prudent and within the jurisdiction of the PSC," and endorsed both the application and the power of the PSC to regulate this relatively new form of telephone communication.
But Kragel said Tuesday that even Momentum said in the public hearings that it did not need the commission to sign off on providing services in the territory and that the PSC expanded the scope of the hearing examiner to look at how it could. Kragel said that as a result of the order approving Momentum’s application, the PSC gave itself regulatory power over telecommunications services including Internet, voice over protocol, broadband, and wireless or mobile devices such as mobile phones, tablets and smartphones.
“In so doing, the commission has now subjected international and interstate communications providers to this commission’s ability to set their rates and to force those entities to accept the same regulations of other public utilities,” Kragel said.
Like AT&T, representatives from CTIA Wireless said that any order giving the PSC jurisdiction over wireless providers is problematic. Residents and visitors to the territory enjoy the freedom of being able to connect to the Internet from their phones or tablets at any time and putting an unauthorized regulatory agency at the table could disrupt that kind of accessibility, according to CTIA’s Benjamin Aron.
Both companies asked for the PSC to reconsider its May order to approve Momentum’s application.
Speaking over the phone, however, Momentum attorney Christopher Savage said that Momentum has no interest in getting involved in the wireless debate and disagreed with AT&T’s position about the PSC’s regulatory jurisdiction.
“The answers to these questions does not affect Momentum’s ability to operate in the territory,” Savage said Tuesday. He added that it is common across the country for “wholesale telecom” entities like Momentum to be regulated by entities such as the PSC.
“We have to operate under these kinds of regulations in a variety of states across the country,” Savage said. “We all have private opinions about these jurisdictional issues, but we do think the PSC has the authority to allow us to operate and, even if AT&T is right, it will not affect our ability to operate.”
Following Savage’s statements, Clendinen said that after looking over both companies’ petitions for reconsideration, it is “not clear from the face of either petition, that there is merit to any allegation they contain.”
“However, it is possible that this body might benefit from a further investigation of the merit of those allegations before issuing a final decision in this proceeding,” he added. “That is why I would support a motion … to remand this case back to the hearing examiner to look at the merit of the arguments raised.”
PSC members voted unanimously to approve Clendinen’s motion.
