In re Application No. C-4981 ( 2019 )

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IN RE APPLICATION NO. C-4981
Cite as 27 Neb. Ct. App. 773
In re Application No. C-4981
of Beau Toben.
Windstream Communications, Inc., appellant,
v. Nebraska Public Service Commission
et al., appellees.
___ N.W.2d ___
Filed November 19, 2019. No. A-19-054.
1. Public Service Commission: Appeal and Error. Under Neb. Rev. Stat.
§ 75-136(2) (Reissue 2018), an appellate court reviews an order of the
Nebraska Public Service Commission de novo on the record.
2. Appeal and Error. In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches its own
independent conclusions concerning the matters at issue.
3. Administrative Law: Appeal and Error. When an appellate court
makes a de novo review, it does not mean that the court ignores the
findings of fact made by the agency and the fact that the agency saw
and heard the witnesses who appeared at its hearing. Where the evidence
is in conflict, the appellate court will consider and may give weight to
the fact that the agency hearing examiner observed the witnesses and
accepted one version of the facts rather than another.
4. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
5. ____: ____. In examining 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.
6. Statutes: Legislature: Intent. A court may inquire into legislative his-
tory when a statute is open to construction because its terms require
interpretation or may reasonably be considered ambiguous.
7. Statutes: Appeal and Error. When construing a statute, an appel-
late court must look to the statute’s purpose and give to the statute a
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IN RE APPLICATION NO. C-4981
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reasonable construction which best achieves that purpose, rather than a
construction which would defeat it.
8. Statutes: Intent: Appeal and Error. In construing a statute, an appel-
late court looks to the statutory objective to be accomplished, the evils
and mischiefs sought to be remedied, and the purpose to be served.
9. Statutes: Appeal and Error. An appellate court construes statutes
relating to the same subject matter together to maintain a sensible and
consistent scheme, so that effect is given to every provision.
10. Administrative Law: Appeal and Error. It is appropriate, even under
a de novo standard of review, to adhere to the common practice among
appellate courts to afford appropriate deference to the findings of the
agency before which the record was created.
Appeal from the Public Service Commission. Affirmed.
Blake E. Johnson and Katherine J. Spohn, of Bruning Law
Group, for appellant.
Douglas J. Peterson, Attorney General, and L. Jay Bartel for
appellee Nebraska Public Service Commission.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Beau Toben filed an application with the Nebraska Public
Service Commission (PSC) seeking advanced telecommunica-
tions service, or broadband service, for a home he was building
a few miles west of Doniphan, Nebraska. Toben claimed he was
not receiving, and would not within a reasonable time receive,
such service through the “Hansen Exchange” of Windstream
Communications, Inc. (Windstream). He wished to modify his
exchange service area so he could receive such service from
the “Doniphan Exchange” of Hamilton Telecommunications
(Hamilton). The PSC granted Toben’s application to revise
the exchange boundaries. Windstream appeals, claiming the
PSC was not authorized to grant the application because
the evidence showed that Windstream would provide reason-
able advanced telecommunications service within a reasonable
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IN RE APPLICATION NO. C-4981
Cite as 27 Neb. Ct. App. 773
time pursuant to Neb. Rev. Stat. § 86-136(1) (Reissue 2014).
We affirm.
BACKGROUND
On April 18, 2018, Toben, pro se, filed an application with
the PSC, alleging he resided within Windstream’s Hansen
Exchange, but he wished to receive advanced telecommu-
nications service from Hamilton’s Doniphan Exchange. The
PSC notified Windstream and Hamilton of Toben’s applica-
tion. Hamilton consented to Toben’s request to be served
by its Doniphan Exchange at no direct cost for construction
and installation; Windstream objected because it had plans to
deploy broadband service and “serve [Toben] within a reason-
able period of time.” A hearing took place before the PSC in
November 2018. Toben appeared pro se, Windstream appeared
with counsel, and a representative appeared on behalf of the
PSC. Hamilton did not appear. A summary of the evidence
from the hearing follows.
Toben testified that he did not have any service from
Windstream (or any other local exchange carrier) for a new
house he was building a few miles west of Doniphan. There
were neither any Windstream lines buried there, nor “land
service.” He offered photographs of Windstream’s equipment
(presumably on his property) showing “line boxes” for their
telephone service that “had been in disrepair for the last
years [and] nobody has ever serviced [them].” He cited the
“lack of maintenance or advancements to the services in [his]
area” as one reason for his application. Toben hoped to move
into his house by the end of 2018, but indicated installation
of broadband service may interfere with finishing the yard
and “dirt work” if “things” would have to be buried under
his house. At the time of the hearing, Toben said, “[W]here
I live I have Hamilton,” and he had internet service through
Hamilton. According to Toben, Hamilton “buried fiber optics
to the area” in 2016, which was why he applied for the bound-
ary change to his new home. He testified, “We are building a
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new house where there is currently not any service,” which he
clarified meant no service from anyone, including Hamilton.
Toben had contacted Hamilton, and “they [were] willing to
provide [him] with Internet service,” but Toben acknowledged
such service was not currently available through Hamilton.
Toben said Hamilton was willing to provide him with internet
service and that it could offer speeds of “Ten Mbps.” Toben
was “hoping to be moved in [to the new house] by the end
of the year [2018].” When asked where he was currently liv-
ing, he indicated he was at his parents’ address “while we are
building our house.”
Regarding his communications with Windstream, Toben
said he was told that he would not be able to receive “land
serv­ice,” only (fixed) wireless service; Windstream explained
in an email to Toben that “fixed wireless” is a system to pro-
vide “high speed internet” by way of a “point to multi-point
wireless technology that uses radio frequencies.” Toben had
not had any experience with fixed wireless service, but was
willing to give it a “chance.” However, he did not receive
service “in the time that was promised.” Windstream had
indicated in a July 13, 2018, email to Toben that it expected
to complete its project to provide fixed wireless service to
Toben’s area in “the first few weeks of September 2018.” On
July 20, Windstream sent an email about servicing Toben’s
new house with “the fixed wireless solution” and was “hope-
ful” to avoid a hearing if possible. On July 26, Toben emailed
the PSC asking to postpone a hearing scheduled in August so
he could “see if the fixed wireless system that Windstream
has planned will be sufficient.” In September, Toben con-
tacted Windstream and was told someone would “get back to
[him] within a couple of days.” After he did not hear from
Windstream, Toben rescheduled the hearing.
Brad Hedrick, Windstream’s president of operations for
Nebraska and four other states, testified that Windstream
wanted to expand its broadband services across rural serv­
ice areas. He explained that Windstream’s fixed wireless
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technology was a “much improved version over what other
providers ha[d] deployed in these areas in the past.”
Windstream’s fixed wireless system had not been deployed
anywhere in Nebraska yet.
Windstream intended to serve Toben with fixed wireless
service. Hedrick stated that Toben’s new house address was
within Windstream’s Hansen Exchange, but Windstream had
yet to complete two towers in the “Doniphan-Hansen area”
that would allow Toben to receive service. Once completed,
those towers would provide a service range extending out
in a radius of about 4 or 5 miles and would allow a “75 to
100 Mbps download.” Although Toben had concerns about
Windstream’s radius because his house “falls on the furthest
boundary” of the Hansen Exchange, Hedrick testified that “RF
engineering experts” said that Toben would receive “at least
75 Mbps.”
Hedrick explained why service had been delayed beyond the
initial September timeframe provided to Toben. Hedrick identi-
fied two “governmental delays,” one of which was related to
a rules change by the Federal Communications Commission,
but that issue had since been resolved. The outstanding issue,
which Windstream was notified of about 2 weeks before the
PSC hearing, concerned a zoning dispute with Adams County
regarding Windstream’s permit application to place poles, or
towers, throughout that county. The dispute was about the
“location of the site” and whether it was within the “zone or
cone of influence of the Hastings Airport.” If so, there were
alternatives, such as changing the location of the pole or add-
ing “lighting” to the site. According to Hedrick, Windstream
was “hopeful” to resolve that issue “soon” and to “deploy
service by the end of the year” but that was “not a guarantee.”
He admitted it was “in the realm of possibility” that the issue
could end up in the court system on appeal.
Once the zoning issue was “sorted out,” Windstream
could begin building and equipping tower sites. Hedrick
indicated that Windstream intended to complete other tower
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sites (in addition to those in the “Doniphan-Hansen area”)
with fixed wireless service in the “Sutton exchange [and] the
Juniata exchange”; “it would be beneficial to [Windstream]
if [it] could do them all at the same time.” He thought
Harvard, Nebraska, would be the first area to deploy (not the
“Doniphan-Hansen area”) as it was “approved” the same day
as the PSC hearing. Windstream had not yet advertised broad-
band to Doniphan customers “because it would have been
premature since [it did not] have any capability to provide
service yet” and the “unknown issue [it was] dealing with in
Adams County.”
On December 18, 2018, the PSC issued its order. It noted
that Hamilton and Windstream are local exchange carriers
holding certificates of public convenience and necessity to
provide local exchange service in their respective territories.
The PSC found that Toben was not receiving, and would not
receive within a reasonable time, advanced telecommunica-
tions capability service from Windstream. The PSC further
found that the revision of the exchange service area was eco-
nomically sound and would not impair the capabilities of the
telecommunications companies affected by the change to serve
their subscribers. It acknowledged Toben’s willingness to pay
construction and other costs related to the boundary change
but found that Hamilton was willing to pay those costs. The
PSC concluded that the requirements of § 86-136 were met.
Therefore, it granted Toben’s application and ordered that the
exchange boundaries of Hamilton’s Doniphan Exchange and
Windstream’s Hansen Exchange be revised (as detailed in
maps attached to the order) in such a way as to allow Toben to
receive advanced telecommunications capability service from
Hamilton’s Doniphan Exchange.
Windstream appeals.
ASSIGNMENT OF ERROR
Windstream claims the PSC erred by determining Toben
would not receive reasonable advanced telecommunications
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capability service within a reasonable time absent a change of
Windstream’s Hansen Exchange boundary.
STANDARD OF REVIEW
[1-3] Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018),
an appellate court reviews an order of the PSC de novo on
the record. In re Application No. B-1829, 293 Neb. 485, 880
N.W.2d 51 (2016). In a review de novo on the record, an
appellate court reappraises the evidence as presented by the
record and reaches its own independent conclusions concern-
ing the matters at issue. Id. When an appellate court makes
a de novo review, it does not mean that the court ignores
the findings of fact made by the agency and the fact that the
agency saw and heard the witnesses who appeared at its hear-
ing. In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d
653 (2019). Where the evidence is in conflict, the appellate
court will consider and may give weight to the fact that the
agency hearing examiner observed the witnesses and accepted
one version of the facts rather than another. See id.
[4] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. See In
re Application of City of Minden, 282 Neb. 926, 811 N.W.2d
659 (2011).
ANALYSIS
The Nebraska Telecommunications Regulation Act is codi-
fied at Neb. Rev. Stat. §§ 86-101 through 86-165 (Reissue
2014 & Cum. Supp. 2018). It was passed to fulfill several
policies, including to maintain and advance the efficiency and
availability of telecommunications services. See § 86-102. As
relevant here, § 86-135(1) states, “Any person may file an
application with the [PSC] to obtain advanced telecommuni-
cations capability service furnished by a telecommunications
company in the local exchange area adjacent to the local
exchange area in which the applicant resides.” “Advanced
telecommunications capability service means high-speed,
broadband telecommunications capability provided by a local
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exchange carrier that enables users to originate and receive
high-quality voice, data, graphics, and video communications
using any technology.” § 86-103.01. A “[l]ocal exchange
area” is a “territorial unit established by a telecommunica-
tions company for the administration of telecommunications
service within a specific area generally encompassing a city
or village and its environs as described in maps filed with and
approved by the [PSC].” § 86-115. There must be a hearing
before the PSC if all of the “directly affected” telecommuni-
cations companies involved do not consent to an application.
§ 86-135(2).
Section 86-136 provides that upon the completion of the
hearing on an application made pursuant to § 86-135 (if a hear-
ing is required), the PSC may grant the application, in whole or
in part, if the evidence establishes each of the following:
(1) That such applicant is not receiving, and will not
within a reasonable time receive, reasonable advanced
telecommunications capability service from the telecom-
munications company which furnishes telecommunica-
tions service in the local exchange area in which the
applicant resides;
(2) That the revision of the exchange service area
required to grant the application is economically sound,
will not impair the capability of any telecommunications
company affected to serve the remaining subscribers in
any affected exchanges, and will not impose an undue and
unreasonable technological or engineering burden on any
affected telecommunications company; and
(3) That the applicant is willing and, unless waived
by the affected telecommunications company, will pay
such construction and other costs and rates as are fair and
equitable and will reimburse the affected telecommunica-
tions company for any undepreciated investment in exist-
ing property as determined by the [PSC]. The amount of
any payment by the applicant for construction and other
costs associated with providing service to the applicant
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may be negotiated between the applicant and the affected
telecommunications company.
On appeal, Windstream takes issue only with whether
§ 86-136(1) set forth above was satisfied—specifically, whether
advanced telecommunications capability service would be avail-
able to Toben within a reasonable time. Windstream claims it
would have been able to provide such service to Toben within
a reasonable time.
Although not raised by the parties, nor addressed by the
PSC in its order, we initially observe that at the time Toben
completed his application in April 2018 and at the time of
the PSC hearing in November, Toben was residing at his par-
ents’ home within Hamilton’s Doniphan Exchange. He was
not yet residing at the home being built within Windstream’s
Hansen Exchange. Section 86-135(1) permits a person to file
an application with the PSC to seek service from a telecom-
munications company in the local exchange area adjacent
to the local exchange area in which the applicant resides.
Therefore, in order for the PSC to have concluded as it did, it
would necessarily have had to interpret the words “the local
exchange area in which the applicant resides” to include prop-
erty an applicant presently owns and on which the applicant
does not presently reside, but has demonstrated an intent to
reside on such property in the future. At the PSC hearing,
questions were asked about Toben’s current residence. Toben
acknowledged he was still living in Doniphan, in the Hamilton
exchange, but anticipated moving to his new residence in the
Windstream exchange at the end of 2018. He testified that he
was currently receiving internet service through Hamilton, but
that “nobody” provided internet service to the location where
he was building his new house. It is evident that at the time
of his application and at the time of the PSC hearing, Toben
was still residing in Hamilton’s Doniphan Exchange. There is
also no dispute that when Toben begins residing in the house
being built a few miles west of Doniphan, he will then be
residing in Windstream’s Hansen Exchange; Hedrick agreed
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that “[Toben’s] new address for the house they are building
is within the [Windstream] Hansen exchange.” Therefore, the
PSC necessarily interpreted the words “the local exchange
area in which the applicant resides” to include property an
applicant presently owns and on which the applicant does not
presently reside, but has demonstrated an intent to reside on
such property in the future. At the hearing before the PSC,
Windstream did not take issue with the fact that Toben did
not yet reside on the property in its Hansen Exchange—nor
is that issue raised on appeal. Accordingly, it is not necessary
for this court to address whether this particular statutory lan-
guage was properly applied; rather, we address only whether
the PSC correctly found that Toben was not receiving, and
would not receive within a reasonable time, advanced tele-
communications capability service from Windstream for his
property within Windstream’s Hansen Exchange as set forth
in § 86-136(1).
We first observe that the Legislature recently amended
§ 86-136(1) as follows (new language underscored; former
language struck through):
(1) That such applicant is not receiving, and at the
time of the application is not able to receive, will not
within a reasonable time receive, reasonable advanced
telecommunications capability service from the telecom-
munications company which furnishes telecommunica-
tions service in the local exchange area in which the
applicant resides.
2019 Neb. Laws, L.B. 268, § 1 (effective September 1, 2019).
Thus, the issue of what might constitute a reasonable time
for a local exchange to make advanced telecommunications
capability service available to an applicant residing in its
exchange is possibly an issue of last impression. As of its
September 1, 2019, effective date, the amended § 86-136(1)
places the focus on when the application to change exchange
boundaries is filed rather than whether service can be made
available within a reasonable time.
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As pertinent here, Windstream argues it could fulfill the
reasonable time requirement because of plans to provide serv­
ice by the end of 2018. It asserts that despite unexpected
delays, it demonstrated “good faith efforts to provide Toben
with internet service quickly” and had “executable designs and
plans to build the required service towers.” Brief for appellant
at 8. But the PSC argues that the record shows “Windstream
failed to meet its own promised time frame to provide serv­
ice.” Brief for appellee at 8.
[5] Neither party directs us to a prior appellate case that
has had to interpret the meaning of “within a reasonable time”
under § 86-136(1) (Reissue 2014), and we find none. We
are thus faced with a case of first, and possibly last, impres-
sion, although Windstream’s brief does indicate there may
be other cases of a similar nature pending on appeal: “In re
Application of Skrdlant, No. A18-877, and In re Application of
Poppe, No. A18-878.” See brief for appellant at 1. In exam-
ining 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 statu-
tory words which are plain, direct, and unambiguous. AT&T
Communications v. Nebraska Public Serv. Comm., 283 Neb.
204, 811 N.W.2d 666 (2012). While we agree with Windstream
that the statutory language “‘within a reasonable time’” is
“forward-looking,” reply brief for appellant at 2, it is nev-
ertheless open to interpretation. On the face of § 86-136(1)
alone, there is no plain and ordinary meaning to define the
parameters of “within a reasonable time.” And the phrase is
not defined in any relevant definition section in the Nebraska
Telecommunications Regulation Act. See § 86-103 (definitions
found in §§ 86-103.01 to 86-121).
[6-9] A court may inquire into legislative history when
a statute is open to construction because its terms require
interpretation or may reasonably be considered ambiguous.
See Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924
N.W.2d 678 (2019). When construing a statute, an appellate
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court must look to the statute’s purpose and give to the statute
a reasonable construction which best achieves that purpose,
rather than a construction which would defeat it. TracFone
Wireless v. Nebraska Pub. Serv. Comm., 279 Neb. 426, 778
N.W.2d 452 (2010). An appellate court looks to the statutory
objective to be accomplished, the evils and mischiefs sought to
be remedied, and the purpose to be served. Id. And an appel-
late court construes statutes relating to the same subject matter
together to maintain a sensible and consistent scheme, so that
effect is given to every provision. Id.
Section 86-136(1) was originally located at Neb. Rev. Stat.
§ 75-613(1) (Cum. Supp. 1969). In 1969, the Legislature estab-
lished a process under Neb. Rev. Stat. §§ 75-612 to 75-615
(Cum. Supp. 1969) for applicants who were not receiving
and would not “within a reasonable time” receive reasonably
adequate exchange telephone service from the company fur-
nishing such service in the exchange service area in which
the applicants resided or operated. See § 75-613(1). See,
also, 1969 Neb. Laws, ch. 601, § 2, p. 2457. There is nothing
enlightening in the corresponding legislative history about the
Legislature’s decision to use “within a reasonable time” as part
of the standard for § 75-613(1). Even if there were, the facts
at hand involve the question of how long is too long to wait to
obtain broadband service, not merely telephone service—the
subject technology in 1969.
The version of § 86-136(1) at issue here was established
in 2012, pursuant to 2012 Neb. Laws, L.B. 715. Before that
amendment, the PSC could order a boundary change based only
on the “quality of the voice-grade [(landline telephone)] serv­
ice the customer [was] receiving.” See Introducer’s Statement
of Intent, L.B. 715, Transportation and Telecommunications
Committee, 102d Leg., 2d Sess. (Feb. 13, 2012). The 2012
amendment updated boundary change provisions so that an
application for a change is based on “broadband service.”
Id. See, also, L.B. 715, § 3 (advanced telecommunications
capability service definition added); id., §§ 4 to 7 (term
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added elsewhere to reflect application was for broadband serv­
ice). The phrase “within a reasonable time” in § 86-136(1)
remained unchanged. L.B. 715, § 5. Clearly, the Legislature’s
amendments were meant to account for technological advance-
ments, and it did not find it necessary (at least at that time)
to amend the language at issue here. Compare L.B. 715, with
2019 Neb. Laws, L.B. 268, § 1 (replacing “within a reasonable
time receive” in § 86-136(1) with “at the time of the applica-
tion is not able to receive”).
At a preliminary hearing on L.B. 715, counsel for the
Transportation and Telecommunications Committee said:
The state has experienced situations where a customer on
one side of a boundary line receives high-speed broad-
band with one provider, while the provider on the other
side of the boundary line does not offer broadband to
another customer. Although these two customers live in
close proximity to each other, the one with inadequate
service is being held hostage by the outdated statute from
receiving broadband from the one provider on the other
side of the boundary line.
Transportation and Telecommunications Committee Hearing,
L.B. 715, 102d Leg., 2d Sess. 2 (Feb. 13, 2012). Counsel
asserted, “In a large geographic state with a sparse population,
broadband has become a necessity to Nebraska.” Id. During
floor debate, the chairperson of the committee reiterated that
exact statement. See Floor Debate, L.B. 715, 102d Leg., 2d
Sess. 17 (Mar. 21, 2012). The chairperson also pointed out,
“Broadband is the service customers want, and in many rural
areas it is not available.” Id.
While the legislative materials for L.B. 715 do not provide
insight about the phrase “within a reasonable time” under
§ 86-136(1), the phrase remaining intact shows that, at least
at that time, the Legislature preferred to leave the matter
to the PSC’s discretion to analyze on a case-by-case basis.
See, also, In re Application No. OP-0003, 303 Neb. 872, 932
N.W.2d 653 (2019) (even under de novo standard of review,
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it is appropriate to adhere to common practice among appel-
late courts to afford appropriate deference to findings of
agency before which record was created). In its order in the
present case, the PSC stated, “given the utility and necessity
of access to broadband internet in today’s world, even short
delays may present significant inconveniences and challenges
to Nebraska residents.” The PSC related that the length of
time it would consider to be reasonable within the context
of §§ 86-135 to 86-138 was “relatively short” and “certainly
shorter than the nearly eight months [Toben’s] docket [had]
been pending.”
We agree with the PSC’s determination that the timeframe
at issue here did not meet the requirement of “within a rea-
sonable time.” Windstream was on notice of Toben’s applica-
tion in April 2018. In July, Toben asked for a continuance of
the August hearing because Windstream represented that it
expected to complete the project in Toben’s area in September.
Windstream failed to meet that deadline, and at the time of
the hearing in November, the timeline was no more apparent
due to unexpected zoning delays involving Adams County.
Although Hedrick estimated the project would be completed
by the end of the year, he acknowledged that was “not a
guarantee.” Windstream’s zoning dispute was a relatively new
delay; how fast it could be resolved (and whether resolution
would impact the project) was vague. There was also evidence
the Harvard project would take priority over the Doniphan-
Hansen project, although it was not clear if or how that might
delay the estimated goal to have service available to Toben at
the end of 2018.
Windstream argues there was no evidence about the “quality
of Hamilton’s service or timeframe for its deployment.” Brief
for appellant at 7. However, the pertinent statutory language
does not require such evidence. Section 86-136(1) relates to
whether an applicant is receiving or will receive within a
reasonable time broadband service “from the telecommunica-
tions company which furnishes telecommunications service
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in the local exchange area in which the applicant resides”; it
unambiguously refers solely to the applicant’s current tele-
communications company, the one whose territory covers the
area where the applicant resides. See AT&T Communications
v. Nebraska Public Serv. Comm., 283 Neb. 204, 811 N.W.2d
666 (2012) (language of statute is to be given its plain and
ordinary meaning). The record supports that the requirements
of § 86-136(1) were met, although as noted previously, we
do not address whether the “local exchange area in which the
applicant resides” includes property upon which an applicant
presently owns and on which the applicant does not presently
reside, but has demonstrated an intent to reside on such prop-
erty in the future. Also, we need not address whether the other
two elements of § 86-136 were satisfied, because Windstream
does not dispute the PSC’s conclusions under § 86-136(2) or
§ 86-136(3).
Finally, Windstream argues that it was not necessary to
modify Windstream’s Hansen Exchange so that Hamilton
could provide Toben service. Although Windstream did not
specifically assign this as an error, it did generally assign
error to the PSC’s determination that Toben would not receive
reasonable advanced telecommunications capability service
within a reasonable time “absent a change of Windstream’s
Hansen Exchange boundary.” The PSC disagrees there was
any error on this basis, arguing, “Whether Hamilton could or
could not provide service without a boundary change is irrel-
evant, as a change in exchange area boundaries is required by
the statute when the PSC finds the evidence warrants granting
the application.” Brief for appellee at 11. Although we do not
agree that the statute requires the PSC to make a boundary
change, see § 86-136 (“the commission may grant the applica-
tion . . . if the evidence establishes the following”), we agree
with the PSC that whether Hamilton could have provided
service to Toben without a boundary change is not relevant
to the PSC’s decision. Section 86-136 does not contain lan-
guage that would preclude a boundary change simply because
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
IN RE APPLICATION NO. C-4981
Cite as 27 Neb. Ct. App. 773
an adjacent local exchange could provide service without a
boundary change. While there are other factors for the PSC to
consider besides whether service can be made available within
a reasonable time, see § 86-136(2) (requires consideration of
whether revision of exchange service area is economically
sound) and § 86-136(3) (requires consideration of costs of
construction and rates), as noted previously, Windstream has
not challenged the PSC’s order as to either of those statu-
tory factors.
CONCLUSION
Under our de novo review, we affirm the December 18,
2018, order of the PSC granting Toben’s application to modify
his exchange service area from Windstream’s Hansen Exchange
to Hamilton’s Doniphan Exchange.
Affirmed.