Court Issue Register Now the Hard Rock Hotel and Casino Has Arranged a Room Rate of S Limited $117 for Those Golfers Wanting to Space I Stay Closer to the Course

Volume 90 — No. 8 — 4/20/2019

Court Issue Register Now The Hard Rock Hotel and Casino has arranged a room rate of s Limited $117 for those golfers wanting to Space i stay closer to the course. Hopefully, this will make early check in on Thursday morning a and filling up fast little less painful. It is 7.6 miles from the Hard Rock to the Patriot. Call 1-800-760-6700 and mention “Oklahoma Bar Association – OKC” to receive the special group rate by May 29, 2019.

If you are planning to attend the M C L E C R E D I T 2/2 2019 Solo & Small Firm Conference ... or would just like to take advantage of our special $99 room rate on Wednesday night at the River Spirit Casino Resort, please call 1.888.748.8731 and refer to the Solo & Small Firm Conference by May 30. program planner/moderator: Joe Balkenbush, OBA Ethics Counsel

Get some fresh air and a fresh perspective on legal ethics with all new questions and scenarios IN in a unique outdoor CLE format. ETHICS Your “classroom” is the great outdoors at The Patriot Golf Club. Eighteen ethics scenarios and a set of multiple-choice answers are your course materials. Discuss each scenario and possible answers as you play or ride to each hole. After you finish, head to the “19th Hole” for a buffet lunch 18 HOLES and ethics discussion. SPACE IS LIMITED. Register now to guarantee you or your team a place at this special CLE event! The event is set up for no mulligans, a max of bogey, and prizes will be given for 1st and 2nd place. Tie breaker is best score on the hardest JUNE 20, 2019 handicapped holes. Flag prizes for closest to pin on hole #8 and #17 and longest drive on #11. 8 a.m. - 2:50 p.m. (8 a.m. check-in; 9 a.m. tee time) The Patriot Golf Club, 5790 N Patriot Drive, Owasso, OK 74055 TUITION: $235 before June 13, 2019 $260 after June 13, 2019 NO WALK-INS Member guests not staying for CLE or lunch may play for $185 early and $210 late by contacting Renee at 405.416.7029. FOR details and TO REGISTER, GO TO www.okbar.org/cle Stay up-to-date and follow us on INCLUDES: 2 hours of MCLE credit, green fee, cart, balls, grab & go breakfast and buffet lunch

404 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2019 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Volume 90 – No. 8 – 4/20/2019 Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service JOURNAL STAFF BOARD OF EDITORS offered by any advertisement is intended or implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS MELISSA DELACERDA responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair the OBA reserves the right to edit or reject [email protected] any advertising copy for any reason. LUKE ADAMS, Clinton CAROL A. MANNING, Editor Legal articles carried in THE OKLAHOMA CLAYTON BAKER, Vinita BAR JOURNAL are selected by the Board of [email protected] Editors. Information about submissions can AARON BUNDY, Tulsa be found at www.okbar.org. MACKENZIE SCHEER Advertising Manager PATRICIA A. FLANAGAN BAR Center Staff [email protected] Yukon John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Joe Balkenbush, LACEY PLAUDIS AMANDA GRANT, Spiro Ethics Counsel; Jim Calloway, Director of Man- Communications Specialist VIRGINIA D. HENSON, Norman agement Assistance Program; Craig D. Combs, [email protected] Director of Administration; Susan Damron, LAURA STONE C. SCOTT JONES, Director of Educational Programs; Beverly Petry Oklahoma City Lewis, Administrator MCLE Commission; Carol Communications Specialist A. Manning, Director of Communications; Rob- [email protected] SHANNON L. PRESCOTT bin Watson, Director of Information Technology; Okmulgee Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, LESLIE TAYLOR, Ada Steve Sullins, Assistant General Counsels Les Arnold, Julie A. Bays, Gary Berger, Debbie Brink, Melody Claridge, Cheryl Corey, OFFICERS & Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, Suzi Hendrix, BOARD OF GOVERNORS Debra Jenkins, Rhonda Langley, Jamie Lane, CHARLES W. CHESNUT, President, Miami; Durrel Lattimore, Renee Montgomery, LANE R. NEAL, Vice President, Oklahoma City; SUSAN B. SHIELDS, Whitney Mosby, Lacey Plaudis, Tracy Sanders, Mackenzie Scheer, Mark President-Elect, Oklahoma City; KIMBERLY HAYS, Immediate Past Schneidewent, Laura Stone, Margaret Travis, President, Tulsa; MATTHEW C. BEESE, Muskogee; TIM E. DECLERCK, Krystal Willis, Laura Willis, & Enid; MARK E. FIELDS, McAlester; BRIAN T. HERMANSON, Ponca Roberta Yarbrough City; JAMES R. HICKS, Tulsa; ANDREW E. HUTTER, Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Oklahoma City; Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 JIMMY D. OLIVER, Stillwater; MILES T. PRINGLE, Oklahoma City; FAX 405-416-7001 BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Tulsa; BRANDI Continuing Legal Education 405-416-7029 NOWAKOWSKI, Shawnee, Chairperson, OBA Young Lawyers Division Ethics Counsel 405-416-7055 General Counsel 405-416-7007 The Oklahoma Bar Journal Court Issue is published twice Lawyers Helping Lawyers 800-364-7886 monthly and delivered electronically by the Oklahoma Bar Mgmt. Assistance Program 405-416-7008 Association, 1901 N. Lincoln Boulevard, Oklahoma City, Mandatory CLE 405-416-7009 Oklahoma 73105. Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 Subscriptions $60 per year that includes the Oklahoma Bar Journal magazine published monthly, except June and July. Law students registered with the OBA and senior members www.okbar.org may subscribe for $30; all active members included in dues.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 405 SB 568 Title 82 Creates phase 2 HB 2121 Title 60 Provides for SB 759 Provides for limitations to Arbuckle – Simpson Hydrology notice relating to Uniform physicians and prohibitions for Study Revolving Fund Unclaimed Property Act taking certain actions SB 915 Title 16 Relates to remote SB 763 Pertains to allowing physi- Schools online notarial acts cians to set certain limits HB 1065 Modifies definition of Also provided an update to the SB 765 Title 21 Relates to prohibitions threatening behavior Stigler Act amendments in the on smoking and adding marijuana SB 441 Pertains to length of lawsuit, Carpenter v. Murphy SB 898 Pertains to dispensaries checking school year certain information at point of sale SB 698 Title 61 Public Facilities Act; Marijuana Law SB 882 New law directs Bureau of eliminates certain criteria HB 1100 Modifies certain prohibSolo- & Narcotics to develop and imple- ited acts. Relates to Uniform ment program for disposal of Indian/Real Estate Law Controlled Dangerous Small Firmmedical marijuana waste HB 1916 Title 60 New law prohibit- Substances Act ConferenceSB 532 Title 12 Relates to foreclosure ing transfers of certain items SB 305 Pertains to discrimination of medical marijuana businesses of tangible personal property against medical marijuanaJune 20-22 to public trust license holders River Spirit HB 1220 Title 16 False affidavit shall SB 307 Relates to tax on retailCasino Resort,Ms. AillesTulsa Bahm is the managing result in award of costs and attorney medical marijuana sales attorney of State Farm’s in-house HB 1222 Title 16 Provides for effec- SB 755 New law pertaining to office and serves as the Legislative tive conveyances by married advertising Monitoring Committee chairperson. grantors SB 756 Relates to packaging and She can be contacted through Register online at www.okbar.org/solo/registration HB 1223 Title 16 Pertains to claims providing restrictions and Communities or angela.ailles- and purchases of mineral interests requirements Register beforebahm. June [email protected]. 7 for an early bird discount!

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Justice of the Supreme Court District One The vacancy will be created by the retirement of the Honorable John F. Reif effective April 30, 2019. To be appointed to the office of Justice of the Supreme Court, an individual must have been a qualified elector of the applicable Supreme Court Judicial District, as opposed to a registered voter, for one year immediately prior to his or her appointment, and additionally, must have been a licensed attorney, practicing law within the State of Oklahoma, or serving as a judge of a court of record in Oklahoma, or both, for five years preceding his/her appointment. Application forms can be obtained on line at www.oscn.net, click on Programs, then Judicial Nominating Commission or by contacting Tammy Reaves at (405) 556-9300. Applications must be submitted to the Chairman of the Commission at the address below no later than 5:00 p.m., Friday, April 26, 2019. If applications are mailed, they must be postmarked by midnight, April 26, 2019.

Mike Mordy, Chairman Oklahoma Judicial Nominating Commission Administrative Office of the Courts 2100 N. Lincoln Blvd., Suite 3 Oklahoma City, Oklahoma 73105

406 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 THE OKLAHOMA BAR JOURNAL APRIL 2019 | 51 Oklahoma Bar Association

table of contents April 20, 2019 • Vol. 90 • No. 8

page

408 Index to Court Opinions

409 Opinions of Supreme Court

463 Opinions of Court of Criminal Appeals

468 Judicial Nominating Commission Elections: Nomination Period Opens

470 Calendar of Events

471 Opinions of Court of Civil Appeals

478 Disposition of Cases Other Than by Publication

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 407 Index to Opinions of Supreme Court

2019 OK 17 RE: Reinstatement of Certificate of Certified Shorthand Reporters SCAD- 2019-28...... 409

2019 OK 18 In re: Amendments to Rule 3 and Rule 4 of the State Board of Examiners of Certified Shorthand Reporters, 20 O.S. 2011, ch. 20, app. 1 No. SCAD-2019-30...... 409

2019 OK 19 IN RE: FEE SCHEDULE FOR THE STATE BOARD OF EXAMINERS OF CERTIFIED SHORTHAND REPORTERS SCAD-2019-32...... 412

2019 OK 20 In Re the Marriage of: Matthew L. Antini, Appellee, v. Angela M. Antini, Appellant. No. 115,002...... 413

2019 OK 21 IN THE MATTER OF THE APPLICATION OF MEDICINE PARK TELE- PHONE COMPANY FOR FUNDING FROM THE OKLAHOMA UNIVERSAL SER- VICE FUND MEDICINE PARK TELEPHONE COMPANY, Appellants, v. OKLA- HOMA CORPORATION COMMISSION and STATE OF OKLAHOMA, Appellees. Case No. 115,453...... 418

2019 OK 22 MEDICINE PARK TELEPHONE COMPANY, Appellant, v. STATE OF OKLA- HOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. Case No. 116,193...... 425

2019 OK 23 MEDICINE PARK TELEPHONE COMPANY, Appellant, v. STATE OF OKLA- HOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. Case No. 116,194...... 431

2019 OK 24 DOBSON TELEPHONE COMPANY d/b/a McLOUD TELEPHONE COM- PANY, Appellant, v. STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORA- TION COMMISSION, Appellee Case No. 116,214...... 438

2019 OK 25 DOBSON TELEPHONE COMPANY d/b/a McLOUD TELEPHONE COM- PANY, Appellant, v. STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORA- TION COMMISSION, Appellee. Case No. 116,215...... 444

2019 OK 26 DOBSON TELEPHONE COMPANY, Applicant/Appellant, v. STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Respon- dent/Appellee. Case No. 116,421...... 450

2019 OK 27 DOBSON TELEPHONE COMPANY, Appellant, v. STATE OF OKLAHOMA EX REL. OKLAHOMA CORPORATION COMMISSION, Appellee. Case No. 116,422...... 456

Index to Opinions of Court of Criminal Appeals

2019 OK CR 5 JONAS JORGE CONROY-PEREZ, Appellant, -vs- THE STATE OF OKLA- HOMA, Appellee. No. F-2017-559...... 463

Index to Opinions of Court of Civil Appeals

2019 OK CIV APP 22 IN THE MATTER OF: CORY DUANE BECK, Plaintiff/Appellee, vs. MICHELLE CANNON, Respondent, and DANNY MICHAEL CRESSWELL, Interve- nor/Appellant. Case No. 116,187...... 471

408 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Opinions of Supreme Court Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2019 OK 17 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 8TH DAY OF RE: Reinstatement of Certificate of APRIL, 2019. Certified Shorthand Reporters /s/ Noma D. Gurich SCAD-2019-28. Monday, April 8, 2019 CHIEF JUSTICE ORDER ALL JUSTICES CONCUR. The Oklahoma Board of Examiners of Certi- EXHIBIT A fied Shorthand Reporters has recommended to the Supreme Court of the State of Oklahoma Rules of the State Board of Examiners of that the certificate of each of the Oklahoma Official Shorthand Reporters Certified Shorthand Court Reporters named Title 20, Chapter 20, App. 1 below be reinstated as these reporters have Rule 3. Eligibility. complied with the continuing education requirements for calendar year 2018 and/or with a) Every candidate who seeks to be exam- the annual certificate renewal requirements for ined for enrollment as a certified shorthand 2019, and have paid all applicable penalty fees. reporter shall: IT IS HEREBY ORDERED that, pursuant to 1) Prove to the satisfaction of the Board that 20 O.S., Chapter 20, App. 1, Rules 20 and 23, he/she is: the certificates of the following court reporters i) of legal age; are reinstated from the suspension earlier im- ii) meets the requisite standards of ethical fit- posed by this Court: ness; and iii) has at least a high school education, or the Name & CSR # Effective Date of equivalent thereof. Reinstatement This information shall be furnished to the Regina Goldsmith, March 21, 2019 Board by a sworn, notarized affidavit; CSR # 908 2) Prove to the satisfaction of the Board that Laurie Hoyt, CSR # 547 March 20, 2019 he/she possesses a minimum level of court reporting proficiency which would allow the DONE BY ORDER OF THE SUPREME applicant to meet the examination require- COURT IN CONFERENCE this 8TH day of ments established in Section 1503(B)(1) of Title April, 2019. 20. An applicant may satisfy such require- /s/ Noma D. Gurich ments by obtaining verification through a CHIEF JUSTICE court reporting school official of the applicant’s ALL JUSTICES CONCUR. level of proficiency, as outlined by the test application; by passing a preliminary profi- 2019 OK 18 ciency examination, which has been approved In re: Amendments to Rule 3 and Rule 4 of by the Board; or by proving that the applicant the State Board of Examiners of Certified has previously held any state or national short- Shorthand Reporters, 20 O.S. 2011, ch. 20, hand reporting certificate or license; app. 1 3) Submit to the Secretary of the Board, or a No. SCAD-2019-30. Monday, April 8, 2019 designee, a properly completed application form provided by the Board, accompanied by ORDER such evidence, statements or documents as Rule 3 and Rule 4 of the State Board of Exam- required by the Board, including an examina- iners of Certified Shorthand Reporters, 20 O.S. tion fee receipt from the Clerk of the Supreme 2011, ch. 20, app. 1, are hereby amended as Court showing payment of the fees required by shown on the attached Exhibit “A.” Rules 3 the Board and approved by the Supreme Court; and 4 with the amended language noted are 4) Declare that he/she is a writer of short- attached as Exhibit “B”. The amended rules hand by one of the accepted methods set forth shall be effective April 12, 2019.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 409 in Section 1503(D) of Title 20 of the Oklahoma the study aids from which the test questions Statutes; and will be taken. 5) Provide such additional proof as may be b) Candidates may take one or both of the required by the Board to establish that the can- skills examinations at any regularly scheduled didate meets the requirements set forth in Sec- examination. A candidate who has successfully tion 1503 of Title 20 of the Oklahoma Statutes. completed either of the skills examinations may retain the credit for that portion of the b) Academic dishonesty during the examination process will result in the applicant’s dis- examination for two (2) years from the date qualification, and the applicant may not take passed, and will not be required to retake that the examination again for two (2) years from portion of the examination during the two (2) the date of the examination at which the appli- year period. cant was disqualified. c) Candidates may take the Oklahoma Writ- c) A candidate who has previously failed an ten Knowledge Test at any regularly scheduled examination may be re-examined at any subse- examination. Proof of minimum proficiency quent regular examination upon giving the shall not be required for candidates taking only Board notice via the standard application, and the Oklahoma Written Knowledge Test. A can- payment of the applicable examination fee as didate who has successfully completed the set by the Board and approved by the Supreme Oklahoma Written Knowledge portion of the Court. The examination fee will be forfeited if examination may retain the credit for that por- the candidate fails to appear for the examination of the examination for two (2) years from tion, or fails to complete the examination, the date passed, and will not be required to unless an exception is granted by the Board. retake that portion of the examination during the two (2) year period. Rules of the State Board of Examiners of Certified Shorthand Reporters d) A candidate who provides proof of passing Title 20, Chapter 20, App. 1 the Registered Professional Reporter Examina- Rule 4. Test Requirements. tion of the National Court Reporters Associa- tion, or an equivalent test as authorized by the a) The examination for enrollment as a certi- Supreme Court, is eligible for enrollment with- fied shorthand reporter shall consist of the fol- out taking the skills examinations described in lowing: paragraphs a(1) and a(2) of this Rule. The 1) Testimony and Proceedings Skills Exami- applicant must, prior to certification, pass the nation – A two-voice question-and-answer dic- Oklahoma Written Knowledge portion of the tation of testimony at two hundred (200) words examination, and meet all other applicable eli- per minute for five (5) minutes. Speaker desig- gibility requirements. nations such as “Q” and “A” will not be read EXHIBIT B nor counted as words, but must be appropri- ately indicated in the transcript. One (1) hour Rules of the State Board of Examiners of will be given for the transcription of the ques- Official Shorthand Reporters tion-and-answer dictation. Title 20, Chapter 20, App. 1 Rule 3. Eligibility. 2) Literary Materials Skills Examination – A five-minute dictation of literary material at one a) Every candidate who seeks to be examined hundred eighty (180) words per minute. One for enrollment as a certified shorthand reporter (1) hour will be given for the transcription of shall: the literary dictation. 1) Prove to the satisfaction of the Board that he/she is: 3) The Oklahoma Written Knowledge Test – i) of legal age; A written knowledge test of not less than ii) meets the requisite standards of ethical fit- twenty-five (25) multiple choice questions ness; and relating to the Oklahoma law and court rules, iii) has at least a high school education, or the duties of certified shorthand reporters, and equivalent thereof. general court procedure. This section of the examination will be administered in forty-five This information shall be furnished to the (45) minutes. Applicants will be provided with Board by a sworn, notarized affidavit;

410 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 2) Prove to the satisfaction of the Board that Rule 4. Test Requirements. he/she possesses a minimum level of court a) The examination for enrollment as a certi- reporting proficiency which would allow the fied shorthand reporter shall consist of the fol- applicant to meet the examination require- lowing: ments established in Section 1503(B)(1) of Title 20. An applicant may satisfy such requirements 1) Testimony and Proceedings Skills Exami- by obtaining verification through a court nation – A two-voice question-and-answer dic- reporting school official of the applicant’s level tation of testimony at two hundred (200) words of proficiency, as outlined by the test applica- per minute for five (5) minutes. Speaker desig- tion; by passing a preliminary proficiency nations such as “Q” and “A” will not be read examination, which has been approved by the nor counted as words, but must be appropri- Board; or by proving that the applicant has ately indicated in the transcript. One (1) hour previously held any state or national short- will be given for the transcription of the ques- hand reporting certificate or license; tion-and-answer dictation. 3) Submit to the Secretary of the Board, or a 2) Literary Materials Skills Examination – A designee, a properly completed application five-minute dictation of literary material at one form provided by the Board, accompanied by hundred eighty (180) words per minute. One such evidence, statements or documents as (1) hour will be given for the transcription of required by the Board, including an examina- the literary dictation. tion fee receipt from the Clerk of the Supreme Court showing payment of the fees required by 3) The Oklahoma Written Knowledge Test – the Board and approved by the Supreme Court; A written knowledge test of not less than twenty-five (25) multiple choice questions 4) Declare that he/she is a writer of short- relating to the Oklahoma law and court rules, hand by one of the accepted methods set forth duties of certified shorthand reporters, and in Section 1503(D) of Title 20 of the Oklahoma general court procedure. This section of the Statutes; and examination will be administered in forty-five 5) Provide such additional proof as may be (45) minutes. Applicants will be provided with required by the Board to establish that the can- the study aids from which the test questions didate meets the requirements set forth in Sec- will be taken. tion 1503 of Title 20 of the Oklahoma Statutes. b) Candidates may take one or both of the b) Academic dishonesty during the examina- skills examinations at any regularly scheduled tion process will result in the applicant’s dis- examination. A candidate who has successfully qualification, and the applicant may not take completed either of the skills examinations the examination again for two (2) years from may retain the credit for that portion of the the date of the examination at which the appli- examination for two (2) years from the date cant was disqualified. passed, and will not be required to retake that c) A candidate who has previously failed an portion of the examination during the two (2) examination may be re-examined at any subse- year period. There will be no reduction in exam- quent regular examination upon giving the ination fee for any applicant retaining credit for Board notice via the standard application, and either skills portion of the examination. payment in full of the applicable examination c) Candidates may take the Oklahoma Writ- fee as set by the Board and approved by the ten Knowledge Test at any regularly scheduled Supreme Court. The examination fee must be examination. Proof of minimum proficiency paid for each examination taken by a candi- shall not be required for candidates taking only date, regardless of the candidate’s failure to the Oklahoma Written Knowledge Test. A can- pass a prior examination or any portion there- didate who has successfully completed the of. The examination fee will be forfeited if the Oklahoma Written Knowledge portion of the candidate fails to appear for the examination, examination may retain the credit for that por- or fails to complete the examination, unless an tion of the examination for two (2) years from exception is granted by the Board. the date passed, and will not be required to Rules of the State Board of Examiners of retake that portion of the examination during Certified Shorthand Reporters the two (2) year period. There will be no reduc- Title 20, Chapter 20, App. 1 tion in examination fee for any applicant retain-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 411 ing credit for the written knowledge portion of Supreme Court, is eligible for enrollment with- the examination. out taking the skills examinations described in paragraphs a(1) and a(2) of this Rule. The d) A candidate who provides proof of passing applicant must, prior to certification, pass the the Registered Professional Reporter Examina- Oklahoma Written Knowledge portion of the tion of the National Court Reporters Associa- examination, and meet all other applicable eli- tion, or an equivalent test as authorized by the gibility requirements.

2019 OK 19 Reporters. This schedule shall become effective April 12, 2019 and it shall supersede the Fee IN RE: FEE SCHEDULE FOR THE STATE Schedule issued on November 12, 2009 by BOARD OF EXAMINERS OF CERTIFIED administrative order No. SCAD-2009-98. SHORTHAND REPORTERS DONE BY ORDER OF THE SUPREME SCAD-2019-32. Monday, April 8, 2019 COURT IN CONFERENCE THIS 8TH day of ORDER APRIL, 2019. PURSUANT TO the provisions of 20 O.S. § /s/ Noma D. Gurich 1506, the Court hereby approves and autho- CHIEF JUSTICE rizes the attached Fee Schedule for the State ALL JUSTICES CONCUR. Board of Examiners of Certified Shorthand

FEE SCHEDULE Skills – Testimony & Proceedings (Q&A) $60.00 Examination Fee – Oklahoma Resident Skills – Literary Materials $60.00 (Exam parts may be taken separately) Written Knowledge Test $30.00 TOTAL FOR COMPLETE EXAM $150.00 Skills – Testimony & Proceedings (Q&A) $85.00 Examination Fee – Non-Resident Skills – Literary Materials $85.00 (Exam parts may be taken separately) Written Knowledge Test $30.00 TOTAL FOR COMPLETE EXAM $200.00 Application for Admission by Reciprocity $150.00 • Qualified applicants may be enrolled without taking skills examinations • Fee includes one Oklahoma Written Knowledge Test Annual Certificate Renewal Fee $30.00 Delinquent Payment Fee $100.00 • Assessed for failure to renew certificate on or before February 15 Continuing Education Penalty Fee $100.00 • Assessed for failure to obtain the requisite number of continuing education hours on or before December 31 of the year in which they are required Continuing Education Suspension Fee $100.00 • Charged to any court reporter whose certificate has been suspended for failure to earn the required number of continuing education hours, to submit a completed compliance report, and/or to pay any applicable continuing education penalty fee on or before February 15 Retired Status Reinstatement Fee $100.00

412 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019

2 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 2019 OK 20 Appellant physical custody over the children with the parties sharing joint legal custody. In Re the Marriage of: Matthew L. Antini, Appellee was granted visitation rights and Appellee, v. Angela M. Antini, Appellant. ordered to pay child support. No. 115,002. April 9, 2019 ¶3 In 2013, prior to the entry of the Judgment ON CERTIORARI TO THE COURT OF of Divorce, Appellant moved with the children CIVIL APPEALS, DIVISION I from New York to Maine. In April 2014, Appel- lee picked the children up in Maine for visita- ¶0 In this writ of habeas corpus action tion but transported them to Oklahoma and, brought under the Uniform Child Custody despite Appellant’s requests and her subse- Jurisdiction and Enforcement Act (“UCC- quent trip to Oklahoma to recover the children, JEA”), Okla. Stat. tit. 43, §§ 551-101 through Appellee refused to return them. On May 19, 402 (2011), prevailing party appeals trial 2014, after it became apparent that Appellee court’s order denying prevailing party’s was not going to return the children, Appellant motion for attorney fees and costs. The court registered the New York divorce decree as a held that attorney fees can only be awarded foreign judgment in a Maine court and filed a to a party who has retained and paid for motion for contempt against Appellee on May legal counsel and declined to address pre- 21, 2014. The court ordered Appellee to appear vailing party’s request for transcription with the children. However, Appellee did not costs. The Court of Civil Appeals affirmed do so and the Maine court found Appellee in the trial court’s holding regarding attorney contempt on September 24, 2014. Appellee ig- fees but reversed the holding regarding nored an offer to purge his contempt by return- transcription costs. We find that the intent of ing both children by September 26, 2014, and the Legislature in enacting the UCCJEA was Appellee never returned the children to Maine. not to except entities rendering legal servic- Because of this failure to return the children, es at no cost to the clients. Accordingly, the Maine court issued a bench warrant for Appellant is entitled to reasonable and nec- Appellee. essary expenses including attorney fees borne by her counsel, Legal Aid Services of ¶4 On December 16, 2014, Appellee filed a Oklahoma. petition in the District Court of Stephens Coun- ty, State of Oklahoma, to register the New York CERTIORARI PREVIOUSLY GRANTED; divorce decree in Oklahoma and asked the COURT OF CIVIL APPEALS OPINION court to assume custody jurisdiction. Appel- VACATED; TRIAL COURT ORDER lee’s petition did not reference the registration REVERSED AND REMANDED WITH of the New York Decree in Maine nor the con- INSTRUCTIONS. tempt proceedings in Maine. In response, Ap- Kade A. McClure, Richard J. Goralewicz, Legal pellant filed a special appearance in the trial Aid Services of Oklahoma, Inc., Oklahoma court objecting to the registration of the New City, for Appellant. York final judgment of divorce and also filed a petition and application for a writ of habeas Joe K. White, Duncan, OK, for Appellee. corpus requesting custody of the minor chil- Colbert, J. dren. On March 17, 2015, the court found that “pursuant to the Oklahoma Uniform Child ¶1 At issue is whether Okla. Stat. tit. 43, § Custody Jurisdiction and Enforcement Act, 43 551-312 of the Uniform Child Custody Jurisdic- O.S. §§ 551-201 et. seq. the [S]tate of Oklahoma tion and Enforcement Act (“UCCJEA”) requires has no jurisdiction in this matter and that this a court to award prevailing party attorney fees action should be dismissed.” Maine retained to entities rendering legal services to clients at child custody jurisdiction and ordered the no cost. We answer in the affirmative. return of the children to Appellant. The Okla- I. FACTUAL AND PROCEDURAL HISTORY homa court also denied and dismissed the petition to register the New York decree in Okla- ¶2 Appellant, Angela M. Antini, and Appel- homa. lee, Matthew L. Antini, are the biological parents of two minor children. In November 2013, ¶5 On April 21, 2015, Appellant filed a pro the parties were granted a Judgment of Divorce se motion to modify custody in the Maine in the State of New York. In it, the court awarded court, requesting sole custody of the children and granting Appellee supervised visitation.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 413 Appellee responded with an answer and coun- mandate attorney fee awards to prevailing par- terclaim on May 7, 2015, but then failed to ties when the prevailing party receives free appear before the Maine court. The Maine legal services.” But, the court further held that court then granted Appellant’s motion and because the transcription of the hearing in ruled it had exclusive and continuing jurisdic- Maine was vital to the Oklahoma trial court’s tion over the children. No appeal of the Maine determination that it lacked jurisdiction, Ap- court’s decision was entered and the decision pellant should be awarded the transcription is now final under Maine law. cost pursuant to § 551-312. Appellant sought ¶6 On April 29, 2015, Appellee filed in the certiorari review. Oklahoma court a Motion to Reconsider the II. STANDARD OF REVIEW March 17, 2015, decision, denying and dismissing Appellee’s motion to register the New York ¶9 The issue presented in this case is one of judgment in Oklahoma and granting custody statutory interpretation. Statutory interpreta- of the minor children to Appellant. That motion tion presents a question of law which this was heard on April 14, 2016, and the court Court reviews under a de novo standard. Cor- issued its decision denying the motion and beil v. Emricks Van & Storage, 2017 OK 71, ¶ dismissing the petition. 10, 404 P.3d 856, 858; Brown v. Claims Mgmt. Res. Inc., 2017 OK 13, ¶ 10, 391 P.3d 111, 115. In ¶7 Subsequently, Appellant filed a Motion conducting de novo review, this Court pos- for Costs and Attorney’s Fees pursuant to sesses plenary, independent, and non-deferen- Okla. Stat. tit. 43, § 551-312, a fee-shifting stat- tial authority to examine the lower tribunal’s ute within the UCCJEA. That section mandates legal rulings. Corbeil, 2017 OK 71, ¶ 10, 404 that a court award to the prevailing party P.3d at 858. necessary and reasonable expenses incurred ¶10 At issue is whether Okla. Stat. tit. 43, § by or on behalf of the party, including costs, 551-312 (2011) excepts a class of attorneys from communication expenses, attorney’s fees, recovering prevailing party attorney fees for investigative fees, expenses for witnesses, services rendered at no cost to their client. To travel expenses, and child care during the answer this question, this Court must interpret course of the proceedings, unless the party and give ordinary meaning to the plain lan- from whom fees or expenses are sought guage of a statute while balancing the Legisla- establishes that the award would be clearly ture’s intent. Statutory interpretation and inappropriate. ascertaining Legislative intent present ques- In the motion, counsel sought payment of pre- tions of law which this Court reviews de novo. vailing party attorney fees and reimbursement See Samman v. Multiple Injury Trust Fund, of costs for transcripts. The court denied her 2001 OK 71, ¶ 8, 33 P.3d 302, 305; see also Bap- motion, finding, as a matter of law, that attor- tist Med. Ctr. v. Pruett, 1999 OK CIV APP 39, ¶ ney fees can only be awarded under the 11, 978 P.2d 1005, 1008 (“Matters involving UCCJEA to a party who has retained counsel legislative intent present questions of law and personally paid for their services. That is, which are examined independently and with- Appellant’s counsel was not entitled to a rea- out deference to the trial court’s ruling.”). sonable attorney fee merely because Appellant III. DISCUSSION was represented by Legal Aid Services of Okla- homa, Inc. The court further denied Appel- A. The plain language of Okla. Stat. tit. 43, lant’s request for transcription costs reasoning § 551-312 (2011) requires the trial court to that the issue of costs for transcription of a award to a prevailing party a reasonable default modification of divorce decree hearing attorney fee, without regard to whether in Maine should be decided in Maine. or not the cost of the representation was passed onto the client. ¶8 Appellant appealed. On appeal, the Court of Civil Appeals affirmed the district court as ¶11 Oklahoma follows the “American Rule” to the claim for attorney’s fees but reversed which states generally that the cost of litigation and remanded on the issue of transcription is borne distinctly by each litigant and that the costs. In so doing, the court held that “[w] court is without authority to assess attorney fee ithout . . . guidance, either from the Legislature awards without statutory authority to do so. or the Oklahoma Supreme Court, Okla. Stat. Fulsom v. Fulsom, 2003 OK 96, ¶ 8, 81 P.3d 652, tit. 43, § 551-312 (2011) does not statutorily 655 (citations omitted). Fee-shifting statutes are

414 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 strictly construed because of the “chilling” es, and child care during the course of the effect the statutes have on access to courts. Id. proceedings, unless the party from whom Thus, proper application of § 551-312 requires fees or expenses are sought establishes that that we ascertain the Legislature’s intent when the award would be clearly inappropriate. the UCCJEA was enacted. State v. Tate, 2012 OK 31, ¶ 7, 276 P.3d 1017, 1020. B. The court may not assess fees, costs, or expenses against a state unless authorized ¶12 Legislative intent is presumed to be by laws other than this act. expressed in the statute’s text, and, where the language of the statute is plain and unambigu- (emphasis added). ous, the court will not supplant its own inter- ¶14 The word “shall” expresses a command pretation in its place. Arrow Tool & Gauge v. or a mandatory directive creating an unequivo- Mead, 2000 OK 86, ¶ 15, 16 P.3d 1120, 1125. cal right that leaves no discretion with the “The [w]ords and phrases of a statute are to be court to deny it. Sooner Builders & Invs., Inc. v. understood and used not in an abstract sense, Nolan Hatcher Constr. Servs., L.L.C., 2007 OK but with due regard for context, and they must 50, ¶ 17, 164 P.3d 1063, 1069 (citing Macy v. harmonize with other sections of the Act.” Freeman, 1991 OK 59, ¶ 8, 814 P.2d 147, 153; Tate, 2012 OK 31, ¶ 7, 276 P.3d at 1020. Section Forest Oil v. Okla. Corp. Comm’n, 1990 OK 58, 551-312 is a fee-shifting statute and must be ¶ 27, 807 P.2d 774, 787). The party that receives interpreted according to its own terms. State ex “the greatest affirmative judgment” is the pre- rel. Dep’t of Transp. v. Norman Indus. Dev. vailing party. Am. Superior Feeds, Inc. v. Mason Corp., 2001 OK 72, ¶ 17, 41 P.3d 960, 965-66. Warehouse, Inc., 1997 OK CIV APP 43, ¶ 4, 943 Moreover, “courts should not read into a stat- P.2d 171, 173-74. The plain meaning of “pre- ute exceptions not made by the Legislature.” vailing party” refers to the stronger or more Seventeen Hundred Peoria, Inc. v. City of Tul- victorious party. Sooner Builders & Invs., Inc., sa, 1966 OK 155, ¶ 14, 422 P.2d 840, 843 (citation 2007 OK 50, ¶ 17, 164 P.3d at 1069 (citing Buck- omitted). When a legislature intends for an hannon Bd. & Care Home, Inc. v. W. Va. Dep’t exception to exist within a statute, it is free to of Health & Human Res., 532 U.S. 598, 603 do so, and when the language used is broad (2001)). Similarly, as a legal term of art, “pre- and comprehensive and no exception is made, vailing party” means the successful party who it is conclusive evidence that no exception is has been awarded relief on the merits of his or intended. City of Chickasha v. O’Brien, 1915 her claim. Id. “The language ‘reasonable attor- OK 813, ¶ 15, 159 P. 282, 284. ney’s fees, costs, charges and expenses’ places ¶13 The UCCJEA has been adopted by 49 the amount of money which the prevailing party states, including Oklahoma, to prevent forum has a right to recover within the discretion of the shopping schemes and to combat interstate court . . . to decide what are reasonable amounts custody disputes. Summarily, the purposes of for attorney fees and expenses expended or the UCCJEA are to: (1) avoid jurisdictional com- incurred by the prevailing party.” Id. petition in child custody cases; (2) promote ¶15 Applying this guidance, the term “shall” cooperation with the courts of other states; (3) in § 551-312 does not leave the decision of discourage the use of the interstate system for whether to award fees to the trial court’s dis- the same; (4) deter abductions of children; (5) cretion. It is a mandate which unequivocally avoid relitigation of custody decisions of other recognizes the right of the prevailing party states in this State; and (6) facilitate the enforce- under the UCCJEA to receive reasonable fees ment of custody decrees of other states. Okla. and costs incurred during litigation. Here, Ap- Stat. tit. 43, § 551-101, Official Comment (2011); pellant was unquestionably the prevailing see also, Uniform Child Custody Jurisdiction party because she was granted relief on the Act (1968) § 1. Article Three of Oklahoma’s merits of her claim by regaining the custody of UCCJEA (“Enforcement”) includes § 551-312, her children at the habeas corpus/custody which provides in its entirety: hearing and by ultimately obtaining the dis- A. The court shall award the prevailing missal of Appellee’s petition to register the party, including a state, necessary and rea- New York Final Judgment of Divorce in Okla- sonable expenses incurred by or on behalf homa. Though the burden would typically be of the party, including costs, communica- upon the non-moving party to demonstrate tion expenses, attorney’s fees, investigative that the fee-shift would be “clearly inappropri- fees, expenses for witnesses, travel expens- ate,”1 the amount of fees and costs requested

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 415 by Appellant is not at issue. Rather, it’s wheth- B. Today’s holding aligns with the er fees must be granted in the first instance. jurisprudence of other courts that have With that understood, the only question left to interpreted statutes that are similar be determined is the meaning of “on behalf of” to § 551-312. within the phrase “necessary and reasonable ¶19 Although this Court has not ruled expenses incurred by or on behalf of the party.” squarely on this issue, the clear trend among Specifically, whether counsel can recoup state and federal courts is to award attorney expenses and necessary and reasonable costs fees even when the prevailing party did not incurred on behalf of their prevailing client. directly pay for the representation. The Nevada ¶16 Although “on behalf of” has not been Supreme Court in Miller v. Wilfong expressed interpreted by this Court in this context, the several rationales for awarding prevailing Tenth Circuit Court provides guidance in Unit- party attorney fees when that party is repre- ed States v. Frazier, holding that “the phrase sented at no charge. See, Miller v. Wilfong, 121 ‘on behalf of’ means: (1) as a representative of; Nev. 619, 119 P.3d 727. The Miller Court found or (2) in the interest or aid of.” 53 F.3d 1105, that in family law disputes, “one partner has 1112 (10th Cir. 1995). The Black’s Law Diction- often created or contributed to the other part- ary’s definition of “behalf” resembles the Tenth ner’s limited financial means” and that in Circuit’s interpretation: “on behalf of means in those cases, “if fees are not awarded to pro the name of, on the part of, as the agent or rep- bono counsel, a wealthier litigant would bene- resentative of.” Behalf, Black’s Law Dictionary fit from creating conditions that force the other (10th ed. 2014). party to seek legal aid.” Id. at 729-30. The Alaska Supreme Court ruled likewise in an ¶17 It goes without question that legal repre- action brought under the UCCJEA in Vazquez sentation comes at a cost. Nor can it be ques- v. Campbell, 146 P.3d 1 (Alaska 2006). The tioned that, attorneys who represent but do not Vazquez Court rejected the notion that fees are pass the cost of representation onto their cli- only “incurred” if the prevailing party pays ents, are the client’s representative and act in their attorney and held that “clients receiving the client’s best interest. Whether this service is free legal services may recover attorney’s fees.” paid for by the client, by the public, or not at all Id. at 3. Other courts have ruled similarly in has no effect on this inquiry. Consequently, it domestic disputes. See, Beeson v. Christian, 594 becomes apparent that “on behalf of” discloses N.E.2d 441, 443 (Ind. 1992) (holding that public legislative intent that fees must be awarded policy would be undermined if a party must be even where the party did not pay for the legal personally obligated to pay fees before the services. Ruling otherwise would render the court could order them reimbursed); Henri- phrase “on behalf of” superfluous, something quez v. Henriquez, 413 Md. 287, 299, 992 A.2d this Court declines to do. Odom v. Penske 446, 454 (refusing to insert language into fee- Truck Leasing Co., 2018 OK 23, ¶ 36, 415 P.3d shifting statute that would require parties to pay 521, 532 (citations omitted). counsel before being awarded fees); Healds- ¶18 In enacting the UCCJEA, the Oklahoma burg Citizens of Sustainable Solutions v. City of Legislature did not distinguish between legal Healdsburg, 206 Cal.App.4th 988, 993, 142 Cal. entities or services that pass on their expenses Rptr.3d 250, 254 (1st Dist. 2012) (awarding at- to their clients or those that do no pass on these torney fees where legal services were provided expenses. We construe the absence of such a at no personal expense to the client). carve-out exception is a meaningful omission. ¶20 The Official Comment to § 551-312 states O’Brien, 1915 OK 813, ¶ 15, 159 P. at 284. If the that the section is derived from the International Legislature wanted such an exception to exist Child Abduction Remedies Act (“ICARA”), 42 they would have explicitly included one. It is U.S.C. § 11607(b)(3).2 Several courts have applied not up to this Court to read such an exception § 11607(b)(3) to award attorney’s fees in the pro into the statute and there is no indication from bono posture and, though this Court is not the Legislature that such an exception was so bound by the federal courts’ pronouncements on intended. Because the Oklahoma district court, a state law question, Johnson v. Ford Motor Co., in this case, did read an exception into the stat- 2002 OK 24, ¶ 26, 45 P.3d 86, 95, their decisions ute, the order of the Oklahoma district court are instructive. was in error. ¶21 In Cuellar v. Joyce, the Ninth Circuit awarded attorneys’ fees to a prevailing party

416 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 that was represented for free. 603 F.3d 1142 (9th Schweiker, 728 F.2d 978, 986-87 (8th Cir.1984) Cir. 2010). There, the defendant abducted his (“If attorneys’ fees to pro bono organizations and the plaintiff’s child and fled from Panama are not allowed in litigation against the federal to America. Id. at 1143. The plaintiff petitioned government, it would more than likely dis- for the return of her child pursuant to the courage involvement by these organizations in Hague Convention on the Civil Aspects of such cases, effectively reducing access to the International Child Abduction (and its imple- judiciary for indigent individuals.”); Hairston menting statute, ICARA). Id. The Ninth Circuit v. R & R Apartments, 510 F.2d 1090, 1092 (7th ordered the child returned and the plaintiff Cir.1975) (awarding fees to pro bono counsel petitioned for an award of attorneys’ fees. Id. under 42 U.S.C. § 3612(c), the Fair Housing The court granted the petition, holding that “[f] Act’s fee-shifting provisions). ee awards serve in part to deter frivolous litigation,” and to deny fees to counsel working for ¶24 Finally, our holding today is in line with free would “encourage abducting parents to United States Supreme Court jurisprudence. In engage in improper . . . tactics . . . when the Blum v. Stenson, the United States Supreme [opposing party] is represented by pro bono Court laid out the policy as follows: counsel.” Id. Other courts have applied § It is also clear from the legislative history 11607(b)(3) similarly. See, e.g., Salazar v. Mai- that Congress did not intend the calcula- mon, 750 F.3d 514, 520 (5th Cir. 2014); Menoza tion of fee awards to vary depending on v. Silva, 987 F. SupP.2d 910, 917 (N.D. Iowa whether plaintiff was represented by pri- 2014); Wasniewski v. Grzelak-Johannsen, 549 F. vate counsel or by a nonprofit legal servic- SupP.2d 965, 971 (N.D. Ohio 2008); Saldivar v. es organization. The citations to Stanford Rodela, 894 F. SupP.2d 916, 927-28 (W.D. Tex. Daily and Davis make this explicit. In Stan- 2012); Antunez-Fernandes v. Connors-Fer- ford Daily, the court held that it “must nandes, 259 F. SupP.2d 800, 816-17 (N.D. Iowa avoid . . . decreasing reasonable fees 2003); Larrategui v. Laborde, No. 2:2013cv01175, because the attorneys conducted the litiga- 2014 WL 2154477 (E.D. Cal. May 22, 2014); tion more as an act of pro bono publico Aguilera v. De Lara, No. 2:2014cv01209, 2014 than as an effort at securing a large mone- WL 4204947, at *2 n.1 (D. Ariz. Aug. 25, 2014). tary return.” 64 F.R.D. 680, 681 (1974). ¶22 Federal courts ruling on issues outside In Davis, the court held: the realm of child custody issues also align with our decision today. In 1996, the Tenth Cir- In determining the amount of fees to be cuit in Martinez v. Roscoe awarded attorney’s awarded, it is not legally relevant that fees to a publicly funded legal aid program plaintiffs’ counsel … are employed by … a “perceiv[ing] no reason to distinguish between privately funded non-profit public interest attorneys who are paid by a party and attor- law firm. It is in the interest of the public neys who are paid with public funds.” 100 F.3d that such law firms be awarded reasonable 121, 124. The court further noted that the pur- attorneys’ fees to be computed in the tradi- pose of the award of attorney fees (in that case) tional manner when its counsel perform was to “sanction [the] defendants” and that legal services otherwise entitling them to compelling them to pay plaintiff’s fees “serve[s] the award of attorneys’ fees. that purpose,” and further cited many cases 465 U.S. 886, 894-95 (1984) (citation omitted). upholding fees for legal service providers: Ro- We join those courts today. driguez v. Taylor, 569 F.2d 1231, 1244-46 (3d Cir. 1977); Torres v. Sachs, 538 F.2d 10, 12 (2d C. If § 551-312 were held to exclude Cir. 1976); New York Gaslight Club, Inc. v. attorneys rendering legal services to Carey, 447 U.S. 54, 70 n.9 (1980); and Blum v. clients at no cost, many Oklahomans Stenson, 465 U.S. 886, 894-95 (1984). would lose court access. ¶23 Expanding the Martinez ruling, the Third ¶25 Article II of the Oklahoma Constitution Circuit in Rodriguez noted that “[a]ssessing states: “The courts of justice of the State shall fees against defendants in all circumstances be open to every person, and speedy and cer- [including those in which plaintiffs were repre- tain remedy afforded for every wrong and for sented by publicly funded legal providers] every injury to person, property, or reputation; may deter wrongdoing in the first place.” and right and justice shall be administered Rodriguez, 569 F.2d at 1245; see also Cornella v. without sale, denial, delay, or prejudice.” Okla.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 417 Const. art. II, § 6. This premise guides our deci- the district court’s order is reversed and this sion today. matter is remanded for a determination and ¶26 A party’s right to court access is para- award of a reasonable attorney’s fee. mount. We recognized the need for a process to ¶31 We further hold that the transcription provide legal services to low income Oklaho- costs borne by Appellant are necessary and mans. Yet, attainment of such a vital service reasonable expenses and fall squarely within would not be possible without the work of our the purview of § 551-312. The decision on publicly funded legal groups who work to rep- whether a transcript should be taxable in a resent the indigent. given case must be made by the court with ¶27 Litigation, whether privately or publicly first-hand knowledge of the proceedings. Here, funded, is never free. And, nothing saps a legal the transcript was submitted as evidence in service provider’s resources more than a high the Oklahoma court proceeding and provided volume of litigated cases. But, when faced with a comprehensive basis of Appellant’s jurisdic- this dilemma of balancing a high volume need tional argument to dismiss the Oklahoma and a legal provider’s limited resources, that Petition to Register Foreign Judgment. This provider must pick and choose between evidence was not only useful, but critical to numerous clients-all whom have the right to the court’s determination that it lacked juris- seek relief in the courts of justice. See Okla. diction. The district court’s ruling to the con- Const. art. II, § 6. trary was in error. ¶28 The stakes are even higher in an action CERTIORARI PREVIOUSLY GRANTED; brought under the UCCJEA. Child custody COURT OF CIVIL APPEALS OPINION and the sanctity of Oklahoma families would VACATED; TRIAL COURT ORDER ultimately be at stake if we held otherwise. REVERSED AND REMANDED WITH Without the fear of fee-shifting, parties would INSTRUCTIONS. file frivolous lawsuits, and abductors, whereas here, would not be held accountable3 if the CONCUR: Gurich, C.J., Winchester, Edmond- aggrieved parent could not afford representa- son, Colbert, Reif, Combs, Darby, JJ. tion and courts woefully denied reasonable CONCUR IN JUDGMENT: Wyrick, V.C.J. and attorney fees merely because the provider ren- Kauger, J. dering the service did not pass the litigation cost on to the indigent client. I concur in judgment, and concur in all parts of the opinion, except for Part III.C. ¶29 Finally, the irony of holding otherwise is apparent in the present nature of attorney fee Colbert, J. awards. In Hamilton v. Telex Corp., we held that attorneys representing themselves pro se 1. Okla. Stat. tit. 43, § 551-312 (2011) Official Comment; see also, 22 U.S.C. § 9007 could recover fees as the prevailing party. 1981 2. 42 U.S.C. § 11607(b)(3) has been re-codified at 22 U.S.C. § 9007(b) OK 22, ¶ 16, 625 P.2d 106, 109. Given our con- (3). cepts of justice, it would be an unjust and 3. Okla. Stat. tit. 43, § 551-101 (Official Comment) (Stated purpose unfair world in which attorneys serving their of the UCCJEA). own self-interest could recover their fees, while 2019 OK 21 those attorneys achieving meaningful court access for their clients do not. IN THE MATTER OF THE APPLICATION OF MEDICINE PARK TELEPHONE IV. CONCLUSION COMPANY FOR FUNDING FROM THE ¶30 The plain language of Okla. Stat. tit. 43, § OKLAHOMA UNIVERSAL SERVICE FUND 551-312 (2011) mandates the award of a reason- MEDICINE PARK TELEPHONE able attorney’s fee to the prevailing party and COMPANY, Appellants, v. OKLAHOMA the award of reasonable and necessary costs CORPORATION COMMISSION and incurred by or on behalf of the party. The STATE OF OKLAHOMA, Appellees. phrase “on behalf of” discloses legislative Case No. 115,453. April 16, 2019 intent that these awards are not limited to private counsel, but also extends to those provid- APPEAL FROM OKLAHOMA ing legal services at no cost to indigent clients. CORPORATION COMMISSION Accordingly, to the award of attorney’s fees, CAUSE NO. PUD 201500444

418 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Bob Anthony, Chairman; Dana Murphy, Vice are available at rates that are reasonably com- Chairman; and Todd Hiett, Commissioner. parable to rates charged for similar services in urban areas.” 47 U.S.C. § 254(b)(3). The Okla- ¶0 Medicine Park Telephone Company homa Legislature followed suit with its own, appeals the Oklahoma Corporation Commis- complementary Oklahoma Telecommunica- sion’s denial of its application for reimburse- tions Act of 1997 (the “Act”). 17 O.S.2011 and ment from the Oklahoma Universal Services Supp.2016, §§ 139.101 et seq. Fund for reasonable investments and expenses incurred in providing primary universal ser- ¶3 Under the state and federal Acts, certain vice to its customers. We find that the Commis- telecommunications providers known as “car- sion’s wholesale denial of the reimbursement riers of last resort” are required to provide, of any of the requested funds is in error and without discrimination, telephone service to vacate the Commission’s ruling and remand any customer requesting it. See 47 U.S.C. § 201; with directions. 17 O.S.Supp.2016, §139.106. In addition, the provider must offer the requested services at ORDER OF THE OKLAHOMA CORPORATION COMMISSION reasonable and affordable rates in line with REVERSED AND REMANDED WITH those offered in more urban areas even if serv- INSTRUCTIONS. ing such customers would not be economically sustainable. See 47 U.S.C. § 202; 47 U.S.C. § William H. Hoch, Melanie Wilson Rughani, 254(b)(3), (g), (i). The purpose of the legislation Crowe & Dunlevy, P.C., Oklahoma City, Okla- was to provide affordable and quality primary homa, and Ron Commingdeer, Kendall W. universal services to all despite the challenges Parrish, Ron Commingdeer & Associates, of its accessibility. Oklahoma City, Oklahoma, for Appellants. ¶4 In an effort to defray the costs of deliver- Michele Craig, Deputy General Counsel, Okla- ing phone service in rural, more remote areas, homa Corporation Commission, Oklahoma the federal and state Acts each established a City, Oklahoma, for Appellees. fund to help support eligible service providers. Within Oklahoma’s Act, the Legislature creat- Nancy M. Thompson, Oklahoma City, Okla- ed the OUSF to help pay for reasonable invest- homa, for Sprint Communications Company, ments and expenses incurred by “eligible local L.P., Sprint Spectrum L.P. and Virgin Mobile exchange telecommunications service provid- USA, L.P. ers” in providing primary universal services to Jack G. Clark, Jr., Clark, Wood & Patten, P.C., customers in rural and high-cost areas “at rates Oklahoma City, Oklahoma, for Verizon. that are reasonable and affordable.” See 17 O.S.Supp.2016, § 139.106(A), (B), and (G). WINCHESTER, J.: ¶5 The OUSF generally provides that an eli- ¶1 The issue before this Court is whether the gible provider “may request funding from the Oklahoma Corporation Commission (“the Com- OUSF as necessary to maintain rates for pri- mission”) erroneously withheld funding to be mary universal services that are reasonable provided to Medicine Park Telephone Compa- and affordable.” 17 O.S.Supp.2016, § 139.106(G). ny (“Medicine Park”) pursuant to the provi- The OUSF is funded by a charge paid by cer- sions of the Oklahoma Universal Service Fund tain telecommunications carriers that have (“OUSF”), 17 O.S.Supp.2016, § 139.106. For the revenues as defined in Section 139.107. See 17 reasons set forth herein, we find that Medicine O.S.Supp.2016, §§ 139.106(D) and 139.107.1 Park is entitled to the requested funding. ¶6 The Commission’s rules governing the STATUTORY BACKGROUND process for obtaining funding from the OUSF ¶2 In 1996, the U.S. Congress passed the fed- are set out in OAC 165:59, Part 9 and are over- eral Telecommunications Act, 47 U.S.C. §§ 151 seen by the Administrator of the Commission’s et seq., in part, to promote a policy of universal Public Utilities Division (“PUD”). Under the service that would provide telecommunica- rules, upon receipt of a request for OUSF fund- tions services to consumers all over the coun- ing, the OUSF Administrator reviews the request try, including “those in rural, insular, and high and, if appropriate, reimburses the provider cost areas.” The Act seeks to provide access to consistent with the Act. OAC 165:59-7-1(d) and services that are “reasonably comparable to OAC 165:59-3-62(g). Requests for Subsection those services provided in urban areas and that (G)’s “as necessary” distributions are evaluated

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 419 through a detailed study and analysis of the government action, no matter the originating “costs of providing primary universal servic- government entity. Dobson Telephone Co. v. State es” as well as potential revenue. 17 O.S.Supp. ex rel. Okla. Corporation Comm., 2017 OK CIV 2016, § 139.106(H). The process of providing APP 16, ¶21, 392 P.3d 295, 305. The Commis- such detailed studies and demonstrating their sion’s Order was vacated and the matter was effect on rates has made Subsection (G) requests remanded for further proceedings consistent for funding time-consuming and expensive.2 with the Court of Civil Appeals opinion. Dob- ¶7 The Commissioners are free to approve or son Telephone Co. v. State ex rel. Okla. Corpora- reject any determination by the OUSF Admin- tion Comm., 2017 OK CIV APP 16, ¶23, 392 istrator. Under the rules, if no one objects to the P.3d 295, 305. This Court approved the case Administrator’s determination, an order for publication. approving the funding request is issued by the FACTUAL BACKGROUND Commission. OAC 165:59-3-62(j). If, however, a party is not satisfied with the OUSF Adminis- ¶11 Medicine Park provides telecommunica- trator’s determination, the party may file a tions services to customers in a rural area of request for reconsideration by the Commission southwestern Oklahoma. Pursuant to 17 O.S. and the matter is set for hearing. OAC 165:59- Supp.2016, § 139.106(G), Medicine Park sub- 3-62(h) and (i). The Commission is the ultimate mitted an application to the Commission for an arbiter of the issues. See, Cameron v. Corporation “as necessary” reimbursement from the OUSF. Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on The company indicated that it had incurred a appeal from an oil and gas spacing order, the revenue deficiency as a result of the growing Court noted that regardless of whatever weight expense of maintaining its service obligations to the Commission may attach to an examiner’s its customers, combined with the added costs of report, “the Commission is the final arbiter of continued compliance with Federal Communi- the issues”). See also, State ex rel. Cartwright v. cations Commission (FCC) mandates. Medicine Southwestern Bell Telephone Co., 1983 OK 40, Park indicated that it calculated its funding ¶32, 662 P.2d 675, 681 (quoting Cameron). request, in conformance with Subsection (H)(1) ¶8 The Commission, by a 2-1 vote, denied of the OUSF, using its most recent annual cost reimbursement. Commissioner Dana Murphy, study, which was based on its calendar year 2014 dissenting in each of these companion cases, financial data. To avoid substantially raising its has stated that although she may not agree customers’ rates, Medicine Park asked for a with the need for the fund, she feels she must lump-sum reimbursement from the OUSF of uphold the Legislature’s will as long as the $1,046,188.00, for calendar year 2014, and a fund exists.3 monthly recurring amount of $87,182.33, pay- able beginning January 1, 2015. ¶9 In 2014, the Commission denied a request for OUSF funding from Dobson Telephone ¶12 Medicine Park’s application went Company. See Dobson Telephone Co. v. State ex through several rounds of review and supple- rel. Okla. Corporation Comm., 2017 OK CIV APP mentary submissions to PUD. The Administra- 16, 392 P.3d 295. Dobson sought reimburse- tor initially recommended denial of Medicine ment, under 17 O.S.Supp.2016 (K)1)(b), for Park’s request for funding stating there was costs incurred to relocate its telephone facilities insufficient documentation upon which to base as required by the city of Oklahoma City for a its decision. Thereafter, Medicine Park filed a street-widening project. Because the request Request for Reconsideration and supplied the had been issued by the city, and not the county requested, additional information to PUD. Sprint commission or ODOT, the Commission nar- and Verizon (collectively hereafter “Sprint”) rowly interpreted the statute and concluded entered appearances in the case to contest Medi- that the Fund was not authorized to pay for cine Park’s entitlement to the requested funding. such relocation costs. On May 13, 2016, based on the information pro- ¶10 The Court of Civil Appeals found that vided to date, the Administrator filed an Amend- the Commission’s interpretation of the statu- ed Determination in which he recommended a tory language defeats the purpose of the Fund lump sum of $135,935.00 and a recurring month- and is contra to the legislative intent to defray ly amount of $11,327.89. Sprint filed a Request increased costs incurred by eligible telecom- for Reconsideration of the Determination argu- munications service providers resulting from ing against any funding.

420 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶13 On May 31, 2016, Medicine Park filed its of the Commission’s order and we retained Second Request for Reconsideration and re- jurisdiction. duced the amount of its requested funding to STANDARD OF REVIEW $671,373 for 2014 and a recurring monthly amount of $55,947. Shortly thereafter, the com- ¶16 This Court’s review of decisions of the pany again provided additional information to Commission is governed by the Oklahoma PUD, including the direct testimony of Medi- Constitution, article 9, § 20, which states as fol- cine Park President, Edward E. Hilliary. Ac- lows, in relevant part: cording to Medicine Park, this testimony was filed to more clearly reflect how Medicine The Supreme Court’s review of appealable Park’s investments and expenses were incurred. orders of the Corporation Commission shall be judicial only, and in all appeals ¶14 On July 14, 2016, PUD filed testimony of involving an asserted violation of any right its Regulatory Manager, James L. Jones, and of of the parties under the Constitution of the David G. Winter, an expert regulatory consultant United States or the Constitution of the whom PUD hired to perform an independent State of Oklahoma, the Court shall exercise examination of Medicine Park’s application. At its own independent judgment as to both that time, Mr. Winter recommended a slightly the law and the facts. In all other appeals increased amount of funding in the amount of from orders of the Corporation Commission $145,696.49 for 2014 support, and $12,141.27 in the review by the Supreme Court shall not recurring support thereafter. Mr. Jones agreed extend further than to determine whether with Mr. Winter’s assessment and PUD the Commission has regularly pursued its expressly determined that Medicine Park’s rate authority, and whether the findings and for primary universal services was reasonable conclusions of the Commission are sus- and affordable. tained by the law and substantial evidence. ¶15 On August 15, 2016, after considering the Okla. Const. art. 9, § 20. testimony of Mr. Hilliard, both Mr. Jones and Mr. Winter filed supplemental testimony and ¶17 The issue in this appeal concerns the exhibits, respectively. Following the in-depth Commission’s legal interpretation of the OUSF review of Medicine Park’s application and sup- statute and the alleged arbitrary and capricious porting testimony, including a review of all denial of funding in violation of the Oklahoma documentation by a neutral, independent con- Constitution. Constitutional implications as sulting firm hired by PUD, the PUD Administra- well as statutory interpretation require us to tor ultimately recommended that Medicine Park review this case de novo. Cox Oklahoma Telecom, receive a lump-sum payment of $309,016.90 for LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 calendar year 2014, and monthly recurring pay- OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de ments of $25,751.41, to begin January 1, 2015. novo standard of review, the Court has plenary, Despite the recommendation from the PUD independent and non-deferential authority to Administrator and the outside consulting firm determine whether the trial tribunal erred in its independently hired by PUD to assist in the legal rulings. Cox Oklahoma Telecom, LLC v. State process, the Commission rejected the Adminis- ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, trator’s final determination. By a vote of 2-1, n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- following a two-day hearing on the merits, the rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d Commission denied Medicine Park’s applica- 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 tion in full. The Commission found that Medi- P.3d 841, 845. cine Park included requests for reimbursement ¶18 This Court has found that the Commis- of expenses and investments that were not sion’s power “must be exercised only within incurred entirely for the provision of primary the confines of its limited jurisdiction as pro- universal services, that the Administrator did vided by the Oklahoma Constitution” and not determine whether Medicine Park’s rates state statute.4 Pub. Serv. Co. v. State ex rel. Corp. for primary universal services were reason- Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. able and affordable, that the company did not The Commission’s “power to regulate is not seek alternative funding, and that recurring unfettered.” Pub. Serv. Co. v. State ex rel. Corp. funding should not be awarded. As a result, Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. Medicine Park filed this appeal seeking review

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 421 DISCUSSION government fund incurred in providing universal services; ¶19 In support of its decision to disallow any funding to Medicine Park, two of the three (2) Infrastructure expenditures or costs members of the Commission found that Medi- incurred in response to facility or service cine Park: (1) included expenses that were not requirements established by a legislative, related to primary universal services as set regulatory, or judicial authority or other forth in the OUSF statutory provisions; (2) governmental entity mandate. failed to substantiate the reasonableness and 17 O.S.Supp.2016, § 139.106 (G)(1) and (2) necessity of its claimed expenses; (3) did not (emphasis added).6 first seek alternative funding or substantiate the reasonableness of its rate for primary ser- ¶23 In paperwork submitted with its appli- vice; and (4) failed to show the propriety of cation for funding, Medicine Park indicated recurring funding under the OUSF provisions. that because it is operating at a revenue deficiency, it must receive increased revenues in ¶20 Medicine Park contends that the Com- order to continue to provide adequate and reli- mission’s complete denial of funding disre- able regulated telephone service and earn a fair gards the very purpose of the OUSF to ensure and reasonable rate of return on its investment the availability of affordable telephone service devoted to intrastate regulated public utility to customers in rural and high cost areas business. Without OUSF funding, the company where, absent the subsidies, their provision indicated it would be forced to increase the would be cost-prohibitive. Medicine Park rates of its customers. Medicine Park calculat- argues the Commission: (1) too narrowly inter- ed its funding request according to its most prets the OUSF statute; (2) erroneously imposed recent annual cost study which was based on an alternative funding requirement on Medi- 2014’s calendar year financial data. It compiled cine Park contrary to the OUSF statute; (3) the information in conformance with Subsec- incorrectly denied Medicine Park’s request for tion (H)(1) which provides the procedure by recurring funding; and (4) erred in finding the which an eligible service provider must iden- 2016 amendments to 139.106(D) are not retro- tify and measure the costs of providing pri- actively applicable here.5 mary universal services when seeking OUSF ¶21 Medicine Park asserts that the process funding. 17 O.S.Supp.2016, § 139.106(H)(1).7 for reimbursement under Subsection (G) can ¶24 Medicine Park urges that 17 be time-consuming and extremely expensive. O.S.Supp.2016, § 139.106(G) mandates a distri- It sought OUSF funding due to the growing bution of OUSF funds to an eligible service expense of maintaining service obligations to provider who requests funding, as Medicine its residential and business customers, com- Park did here, “as necessary to maintain rates bined with the added cost of continued compli- for primary universal services that are reason- ance with FCC mandates which resulted in a able and affordable.” Medicine Park states that revenue deficiency. its request covered eligible costs used in the ¶22 Medicine Park filed its application for provision of primary universal services as that funding pursuant to Section 139.106 (G)(1) and term is broadly defined in the Act: (2) of the Act. Subsection (G) provides that an “Primary universal service” means an eligible provider may request funding “as nec- access line and dial tone provided to the essary to maintain rates for primary universal premises of residential or business custom- services that are reasonable and affordable.” 17 ers which provides access to other lines for O.S.Supp.2016, § 139.106 (G). The Commission the transmission of two-way switched or does not dispute that Medicine Park is an eli- dedicated communication in the local call- gible provider. The statute further states, in ing area without additional, usage-sensi- part, that such funding “shall be provided” to tive charges, including: eligible providers for the following: a. a primary directory listing, (1) To reimburse eligible local exchange telecommunications service providers for b. dual-tone multifrequency signaling, the reasonable investments and expenses c. access to operator services, not recovered from the federal universal service fund or any other state or federal d. access to directory assistance services,

422 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 e. access to telecommunications relay ser- sal services. 17 O.S.Supp.2016, § 139.106 (B) vices for the deaf or hard-of-hearing, and (G). f. access to nine-one-one service where pro- ¶27 After conducting a thorough review of vided by a local governmental authority or all of Medicine Park’s supporting documents, multijurisdictional authority, and exhibits, and testimony, the PUD Administra- tor and Mr. Winters, the expert regulatory con- g. access to interexchange long distance sultant for the independent consulting firm services. hired by PUD, each separately concluded that 17 O.S.Supp.2016, § 139.102 (35).8 The statutory Medicine Park was entitled to some amount of definition expressly includes several services OUSF reimbursement. Briefing filed by PUD in that are used for both intrastate and interstate the proceedings below indicated that because services, such as access to operator services, Medicine Park pursued funding pursuant to access to directory assistance services, access to Subsection (G), the Administrator had to con- directory assistance services, and access to sider and determine whether Medicine Park’s interexchange long distance services within the rate for primary universal service was reason- scope of available services to be funded by the able. In reaching his determination that the OUSF. Thus, the Commission has too narrowly request, as modified, was reasonable, the interpreted the costs recoverable under the Administrator testified that he “had to review OUSF. all books and records of Medicine Park to determine whether the revenues of Medicine ¶25 Medicine Park’s cost study, prepared in Park are sufficient, when unreasonable expens- conformance with Subsection (H)(1), and in es are removed, to maintain rates for primary accordance with FCC rules, allocated out of its universal service that are reasonable and study all non-regulated costs and then further affordable.” Without such a review, the Admin- separated costs between interstate and intra- istrator maintained that he could not have state jurisdictions. Using this method allowed reached his decision. Further, the Administrator Medicine Park to isolate intrastate costs which specified that he restricted his recommendation were used in the provision of primary univer- to allow only for funding of costs and expenses sal services and are the specific costs for which associated with primary universal service. Like- the company stated it was requesting OUSF wise, Mr. Winters reached the same conclusion. recovery. The Administrator, and the indepen- While both witnesses approved an amount less dent expert, after reviewing the entirety of than Medicine Park requested, they each agreed Medicine Park’s documentation and informa- that their final recommendation constituted a tion, reduced Medicine Park’s recovery even reasonable amount that would allow the com- further to ensure only validly incurred expens- pany to continue to provide reasonable and es and/or investments were reimbursed. affordable service to its customers. Despite finding Medicine Park’s rate for primary uni- ¶26 The primary question regarding Medi- versal services “reasonable and affordable,” cine Park’s entitlement to the funds, requested the two-member majority of the Commission under Subsection (G)(1) and (2), concerns rejected the PUD Administrator’s findings, whether the funds were for (1) reasonable without any supported basis and contrary to investments and expenses not recovered else- the very purpose of the OUSF. where, and/or (2) infrastructure costs incurred as a result of facility or service requirements. ¶28 The Commission’s argument that Medi- The Commission argues that the words “re- cine Park was required to seek alternative quest funding necessary to maintain rates that funding is not well-taken. In its application, are reasonable and affordable” require it to Medicine Park provided information to the make “relative comparisons, exercise critical Commission that included revenues received judgment, weigh relevant factors, and make by Medicine Park from the Oklahoma High judgment calls.” However, the plain language Cost Fund. The Administrator properly exclud- of the statute simply requires the Commission, ed these funds from his recommendation. through the Administrator, to verify through Medicine Park did not receive funding from any other source that would be the subject of review of the provider’s application and sup- an exclusion. porting documentation, that the monies sought by the provider were incurred in the further- ¶29 Additionally, PUD asserts that “even if ance of providing reasonable primary univer- Medicine Park mistakenly receives funding

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 423 from the OUSF for a cost for which it has CONCUR: GURICH, C.J., KAUGER, WIN- already received funding, then the double CHESTER, EDMONDSON, and DARBY, JJ. funding will be recovered by the OUSF,” pur- CONCURRING SPECIALLY (by separate writ- suant to OAC 165:59-3-62(d). This agency rule ing): COMBS, J. provides: “If a provider receives funding from alternative funding sources for an investment NOT PARTICIPATING: COLBERT, AND REIF, or expense already reimbursed by the OUSF, JJ. the provider shall refund the double collection COMBS, J., concurring: to the OUSF by either reducing a prospective funding request from the OUSF by an equiva- ¶1 I concur in the majority opinion but write lent amount or remitting cash payment to the separately to emphasize the audacity of the OUSF. Under no circumstances will double Commission’s blanket denial of Appellant’s, recovery be allowed.” OAC 165:59-3-62(d). Medicine Park Telephone Company, applica- Thus, the Commission’s fear of double recov- tion. The legislature established a process by ery from alternative funding is not realistic. which a rural provider with limited resources is allowed to be reimbursed from the Oklaho- ¶30 Finally, the Commission ignored the ma Universal Service Fund (OUSF) when the Administrator’s specific recommendation for rural provider meets increased costs in fulfill- recurring funding stating that such funding is ing a mandate to provide reliable and afford- not available when there is no showing of able telephone service to Oklahomans in re- ongoing revenue needs. The Administrator mote and underserved areas. The Commis- and Mr. Winters both recommended recurring sion’s majority all but ignored the evidence funding as the revenue needs for Medicine presented ostensibly because of a fundamental Park were documented to be ongoing. Nothing disagreement with the Oklahoma Universal in the statute or Commission rules limits recov- Service Fund.1 This is nothing more than an ery to a single past period where a continued attempt to further disenfranchise rural Okla- need exists and we decline to impose such a homa from basic telephone services. condition here.9 ¶2 Additionally, I would not have allowed CONCLUSION Verizon and its related entities and Sprint ¶31 Although the Commission is not bound Communications Company and its related by the Administrator’s recommendation, we entities to participate in this proceeding below find that the record reflects ample evidence or on appeal. Both Verizon and Sprint are par- with which to support the Administrator’s ticipating based upon their opposition to the determination. The Administrator, the inde- funding provided by the Oklahoma Universal pendent expert hired by PUD to provide a Service Fund to rural Oklahoma providers. neutral investigation, and one dissenting Neither of these companies had any substan- tive rights at the time they joined these pro- Commissioner all agreed that Medicine Park 2 was entitled to funding, albeit at a reduced ceedings. rate of its initial request. The Commission’s WINCHESTER, J.: wholesale denial of any funding was in error. Where an eligible provider has followed the 1. Section 139.107 provides, in part: A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- statutorily-established process and submitted versal Service Fund (OUSF) shall be funded in a competitively valid, supporting documentation, OUSF fund- neutral manner not inconsistent with federal law by all contributing providers. The funding from each contributing provider ing is required when such funding is needed shall be based on the total intrastate retail Oklahoma Voice over to ensure the availability of primary universal Internet Protocol (VoIP) revenues and intrastate telecommunica- service at rates that are reasonable and afford- tions revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed able. We find the Commission has misinter- revenues, as a percentage of all assessed revenues of the contrib- preted the language and requirements of the uting providers, or such other assessment methodology not inconsistent with federal law. VoIP services shall be assessed OUSF Act and, as such, we vacate the order of only as provided for in the decision of the Federal Communica- the Commission and remand the cause for fur- tions Commission, FCC 10-185, released November 5, 2010, or such other assessment methodology that is not inconsistent with ther proceedings consistent with this opinion. federal law. The Commission may after notice and hearing modify the contribution methodology for the OUSF and OLF, provided the ORDER OF THE OKLAHOMA new methodology is not inconsistent with federal law. CORPORATION COMMISSION VACATED B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover AND REMANDED. costs of administration and payments for OUSF and OLF

424 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 requests for funding as provided for in the Oklahoma Telecom- 2. Adopt the cost studies approved by the Commission for a local munications Act of 1997. The administration of the OLF and exchange telecommunications service provider that serves sev- OUSF shall be provided by the Public Utility Division of the enty-five thousand or more access lines; or Commission. The administrative function shall be headed by the 3. Adopt such other costing or measurement methodology as Administrator as defined in Section 139.102 of this title. The may be established for such purpose by the Federal Communica- Administrator shall be an independent evaluator. The Adminis- tions Commission pursuant to Section 254 of the federal Tele- trator may enter into contracts to assist with the administration communications Act of 1996. of the OLF and OUSF. 17 O.S.Supp.2016, § 139.106 (H). 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is 8. Further, the term “access line,” as used in the definition of pri- used in § 139.107 means “providers, including but not limited to pro- mary universal services, means “the facilities provided and main- viders of intrastate telecommunications, providers of intrastate tele- tained by a telecommunications service provider which permit access communications for a fee on a non-common-carrier basis, providers of to or from the public switched network or its functional equivalent wireless telephone service and providers of interconnected Voice over regardless of the technology or medium used.” 17 O.S.Supp.2016, § Internet Protocol (VoIP). Contributing providers shall contribute to the 139.102(1). Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 9. Medicine Park further argues that the Commission had previ- O.S.Supp.2016, § 139.102 (8). ously allowed recurring reimbursements in previous cases to other 2. In an effort to help defray certain costs and shorten the time to providers. The Administrator’s recommendation for recurring pay- receive reimbursement, in limited circumstances, the OUSF offers ments would appear to support this interpretation. funding to smaller providers serving rural areas through a much less tedious process. See 17 O.S.Supp.2016, § 139.106 (K). There are six additional cases, made companions to the case herein, in which the COMBS, J., concurring: providers sought funding under Subsection (K). In Case Nos. 116,193, 116,194, 116,214, 116,215, 116,421, and 116,422, the Commission, by a 1. Appellant’s Brief in Chief at 1, January 29, 2018, states “Commis- vote of 2-1, denied each of those requests. sioner Bob Anthony has repeatedly spoken out against the law [17 O.S. 3. In the Subsection (K) companion cases, which we also decide § 139.101 et seq.], even going so far as to ask the Legislature, in writing, today, Commissioner Murphy wrote, in dissent, stating that she didn’t to repeal it.” He stated the Fund is a bad program that should be believe the majority decision “comports with the Oklahoma Legisla- repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The ture’s intent to, in part, provide support to small, rural carriers who record also shows the statute was not supported by the Commission. have experienced increases in costs as a result of changes required by ROA, at 224. Commissioner Murphy, however, dissented against the governmental acts and with the Legislative policy to preserve and denial of the request for OUSF funding. advance universal services.” 2. HB 2616 (2016) amended 17 O.S. § 139.106 (D) by including in 4. The Oklahoma Constitution, art. 9, Section 18 specifies that the the term “affected party,” “any service provider that pays into the Commission has: OUSF.” This bill became effective on May 9, 2016, almost two months the power and authority and [is] charged with the duty of super- after Verizon and Sprint had filed entries of appearance in the underly- vising, regulating and controlling all transportation and trans- ing case. The Commission’s final order noted it had earlier determined mission companies doing business in this State, in all matters “the amendments in House Bill 2616 adding 17 O.S. §139.106 (D) (5) do relating to the performance of their public duties and their not apply to the instant Cause.” Final Order Denying Request for charges therefor, and of correcting abuses and preventing unjust OUSF Funding at 12. discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce against such companies, in the manner hereinafter authorized, 2019 OK 22 such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable MEDICINE PARK TELEPHONE and just, which said rates, charges, classifications, rules, regula- COMPANY, Appellant, v. STATE OF tions, and requirements, the Commission may, from time to time, OKLAHOMA EX REL. OKLAHOMA alter or amend. 5. Medicine Park argued that under recently amended 17 O.S. CORPORATION COMMISSION, Appellee. Supp.2016, § 139.106(D)(5), “the failure of the Commission to issue a final order within 30 days from the date of the request for reconsidera- Case No. 116,193. April 16, 2019 tion meant that Medicine Park’s application for OUSF funding was now deemed approved on an interim basis.” We disagree with Medi- cine Park that the provisions of the amended statute are applicable APPEAL FROM OKLAHOMA herein. Because we find the amended statute is not purely procedural, CORPORATION COMMISSION CAUSE its application should be deemed prospective. Barnhill v. Multiple Injury Trust Fund, 2001 OK 114, ¶16, 37 P.3d 890, 898. Regardless, our NO. PUD 201600457 ruling today makes this issue moot. 6. We have interpreted the use of the word “shall” by the Legisla- Dana Murphy, Chairman; Todd Hiett, Vice ture “as a legislative mandate equivalent to the term ‘must’, requiring interpretation as a command.” Minie v. Hudson, 1997 OK 26, ¶7, 934 Chairman; and Bob Anthony, Commissioner. P.2d 1082, 1086. 7. Subsection (H) provides, in toto: ¶0 Medicine Park Telephone Company H. In identifying and measuring the costs of providing primary universal services, exclusively for the purpose of determining appeals the Oklahoma Corporation Commis- OUSF funding levels under this section, the eligible local sion’s denial of its application for reimburse- exchange telecommunications service provider serving less than seventy-five thousand access lines shall, at its option: ment from the Oklahoma Universal Services 1. Calculate such costs by including all embedded investments Fund for reasonable investments and expenses and expenses incurred by the eligible local exchange telecommunications service provider in the provision of primary univer- incurred in providing primary universal ser- sal service, and may identify high-cost areas within the local vice to its customers. We find that the Commis- exchange area it serves and perform a fully distributed allocation sion’s wholesale denial of the reimbursement of embedded costs and identification of associated primary universal service revenue. Such calculation may be made using fully of any of the requested funds is in error and distributed Federal Communications Commission parts 32, 36 vacate the Commission’s ruling and remand and 64 costs, if such parts are applicable. The high-cost area shall be no smaller than a single exchange, wire center, or census block with directions. group, chosen at the option of the eligible local exchange telecommunications service provider; or

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 425 ORDER OF THE OKLAHOMA 17 O.S.2011 and Supp.2016, §§ 101 et seq. In CORPORATION COMMISSION addition, the provider must offer the requested REVERSED AND REMANDED WITH services at reasonable and affordable rates in INSTRUCTIONS. line with those offered in more urban areas even if serving such customers would not be William H. Hoch, Melanie Wilson Rughani, economically sustainable. See 47 U.S.C. § 202; Crowe & Dunlevy, P.C., Oklahoma City, Okla- 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the homa, and Ron Commingdeer, Kendall W. legislation was to provide affordable and qual- Parrish, Ron Commingdeer & Associates, ity primary universal services to all despite the Oklahoma City, Oklahoma, for Appellant. challenges of its accessibility. Michele Craig, Deputy General Counsel, Okla- ¶4 In an effort to defray the costs of deliver- homa Corporation Commission, Oklahoma ing phone service in rural, more remote areas, City, Oklahoma, for Appellee. the federal and state Acts each established a Nancy M. Thompson, Oklahoma City, Okla- fund to help support eligible service providers. homa, for Sprint Communications Company, Within Oklahoma’s Act, the Legislature creat- L.P., Sprint Spectrum L.P. and Virgin Mobile ed the OUSF to help pay for reasonable invest- USA, L.P. ments and expenses incurred by “eligible local exchange telecommunications service provid- Jack G. Clark, Jr., Clark, Wood & Patten, P.C., ers” in providing primary universal services to Oklahoma City, Oklahoma, for Verizon. customers in rural and high-cost areas “at rates WINCHESTER, J., that are reasonable and affordable.” See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). ¶1 The issue before this Court is whether the Oklahoma Corporation Commission (“the ¶5 The OUSF generally provides that an eli- Commission”) erroneously withheld funding gible provider “may request funding from the to be provided to Medicine Park Telephone OUSF as necessary to maintain rates for pri- Company (“Medicine Park”) pursuant to the mary universal services that are reasonable provisions of the Oklahoma Universal Service and affordable.” 17 O.S.Supp.2016, § 139.106 Fund (“OUSF”), 17 O.S.Supp.2016, § 139.106. (G). The OUSF is funded by a charge paid by For the reasons set forth herein, we find that certain telecommunications carriers that have Medicine Park is entitled to the requested revenues as defined in Section 139.107. See 17 funding. O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 STATUTORY BACKGROUND ¶6 The Commission’s rules governing the process for obtaining funding from the OUSF ¶2 In 1996, the U.S. Congress passed the fed- are set out in OAC 165:59, Part 9 and are over- eral Telecommunications Act, 47 U.S.C. §§ 151 seen by the Administrator of the Commission’s et seq., in part, to promote a policy of universal Public Utilities Division (“PUD”). Under the service that would provide telecommunication rules, upon receipt of a request for OUSF fund- services to consumers all over the country, ing, the OUSF Administrator reviews the request including “those in rural, insular, and high cost and, if appropriate, reimburses the provider areas.” The Act seeks to provide access to ser- consistent with the Act. OAC 165:59-7-1(d) and vices that are “reasonably comparable to those OAC 165:59-3-62(g). Requests for Subsection services provided in urban areas and that are (G)’s “as necessary” distributions are evaluated available at rates that are reasonably compara- through a detailed study and analysis of the ble to rates charged for similar services in “costs of providing primary universal services” urban areas.” 47 U.S.C. § 254(b)(3). The Okla- as well as potential revenue. 17 O.S.Supp.2016, § homa Legislature followed suit with its own, 139.106 (H). The review process for claims sub- complementary Oklahoma Telecommunica- mitted under Subsection (G) can be time-con- tions Act of 1997 (the “Act”). 17 O.S.2011 and suming and tedious, often resulting in a sig- Supp.2016, §§ 139.101 et seq. nificant delay in receipt of any funds.2 As a ¶3 Under the state and federal Acts, certain result, the Legislature provided a mechanism telecommunications providers known as “car- within the Act that would allow providers in riers of last resort” are required to provide, the rural areas quicker access to mandatory without discrimination, telephone service to payments in certain, limited circumstances. See any customer requesting it. See 47 U.S.C. § 201; 17 O.S.Supp.2016, § 139.106(K).

426 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶7 Subsection (K)(1)(a) mandates that, if “a tal acts and with the Legislative policy to pre- Federal Communications Commission order, serve and advance universal services.” rule or policy” has the effect of “decreas[ing] ¶10 In 2014, the Commission denied a request the federal universal service fund revenues of for OUSF funding from Dobson Telephone an eligible local exchange telecommunications Company. See Dobson Telephone Co. v. State ex service provider,” that provider “shall recover rel. Okla. Corporation Comm., 2017 OK CIV APP the decreases in revenues from the OUSF.” 17 16, 392 P.3d 295. Dobson sought reimburse- O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, ment, under Subsection (K)1)(b) of the OUSF, Subsection (K)(1)(b) provides that, if changes for costs incurred to relocate its telephone required by “federal or state regulatory rules, facilities as required by the city of Oklahoma orders, or policies” reduce the revenues or in- City for a street-widening project. Because the crease the costs to an eligible local exchange request had been issued by the city, and not the telecommunications service provider, then that county commission or ODOT, the Commission provider “shall recover the revenue reductions narrowly interpreted the statute and conclud- or cost increases from the OUSF.” 17 O.S.Supp. ed that the Fund was not authorized to pay for 2016, § 139.106 (K)(1)(b). Under Subsection (K), such relocation costs. distributions from the OUSF “shall not be conditioned upon any rate case or earnings inves- ¶11 The Court of Civil Appeals found that tigation by the Commission,” but, instead, the Commission’s interpretation of the statu- should be paid in an amount equal to the tory language defeats the purpose of the Fund increase in costs or reduction in revenues. 17 and is contra to the legislative intent to defray O.S.Supp.2016, § 139.106 (K)(2). increased costs incurred by eligible telecommunications service providers resulting from ¶8 The Commissioners are free to approve or government action, no matter the originating reject any determination by the OUSF Admin- government entity. Dobson Telephone Co. v. State istrator. Under the rules, if no one objects to the ex rel. Okla. Corporation Comm., 2017 OK CIV APP Administrator’s determination, an order ap- 16, ¶21, 392 P.3d 295, 305. The Commission’s proving the funding request is issued by the Order was vacated and the matter was remand- Commission. OAC 165:59-3-62(j). If, however, a ed for further proceedings consistent with the party is not satisfied with the OUSF Adminis- Court of Civil Appeals opinion. Dobson Telephone trator’s determination, the party may file a Co. v. State ex rel. Okla. Corporation Comm., 2017 request for reconsideration by the Commission OK CIV APP 16, ¶23, 392 P.3d 295, 305. This and the matter is set for hearing. OAC 165:59- Court approved the case for publication. 3-62(h) and (i). The Commission is the ultimate arbiter of the issues. See, Cameron v. Corporation FACTUAL BACKGROUND Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on ¶12 The FCC created a program called Local appeal from an oil and gas spacing order, the Switching Support (LSS), which was paid from Court noted that regardless of whatever weight the federal Universal Service Fund. LSS was the Commission may attach to an examiner’s available to rural incumbent carriers serving report, “the Commission is the final arbiter of fewer than 50,000 lines and was designed to the issues”). See also, State ex rel. Cartwright v. help such carriers recoup some of the high Southwestern Bell Telephone Co., 1983 OK 40, fixed costs of providing telephone service, and ¶32, 662 P.2d 675, 681 (quoting Cameron). particularly local switching service, in areas ¶9 The Commission, by a 2-1 vote, denied with fewer customers. On January 1, 2012, the reimbursement. Commissioner Dana Murphy, FCC eliminated this LSS support. See USF/ICC dissenting in each of these companion cases, Transformation Order (FCC 11-161). The FCC has stated that although she may not agree did not, however, eliminate the legal require- with the need for the fund, she feels she must ment that Medicine Park and other carriers of uphold the Legislature’s will as long as the last resort continue to provide such services. fund exists. She dissented to the denial of ¶13 The OUSF mandates that, “in the event Medicine Park’s request stating that because of a federal communications commission order, she didn’t believe the majority decision “com- rule or policy, the effect of which is to decrease ports with the Oklahoma Legislature’s intent the federal universal service fund revenues of to, in part, provide support to small, rural car- an eligible local exchange telecommunications riers who have experienced increases in costs service provider, the decrease in revenue shall as a result of changes required by governmen- be recovered from the OUSF.” 17 O.S.Supp.2016,

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 427 §106.139(K)(1)(a). After its federal LSS support Park “failed to prove, and no determination was eliminated by FCC order, Medicine Park was made as to, whether Medicine Park’s rates submitted an application for reimbursement to for primary universal services are reasonable recover this loss of revenue under Section and affordable,” or “that the requested funding 106.139 (K)(1)(a); specifically, $102,648 for 2014 is necessary to enable Medicine Park to pro- and $8,554 per month beginning January 2015. vide primary universal services at rates that are reasonable and affordable.” Medicine Park ¶14 The PUD Administrator conducted a appealed, requesting that the Commission’s thorough review of Medicine Park’s applica- denial be reversed. We retained the matter and tion. He ultimately recommended approval of made it a companion to Case Nos. 115,453, $102,629 for the year 2014 and $8,552.42 per 116,194, 116,214, 116,215, 116,421 and 116,422. month thereafter, having disallowed $419.00 of the requested lump sum and $1.58 from the STANDARD OF REVIEW requested monthly recurring amount due to a ¶18 This Court’s review of decisions of the lack of supporting documentation. Various Commission is governed by the Oklahoma other telecommunications companies, includ- Constitution, article 9, § 20, which states as fol- ing Sprint, Virgin Mobile, and Verizon (collec- lows, in relevant part: tively hereafter “Sprint”) filed a request for reconsideration, requesting denial of any reim- The Supreme Court’s review of appealable bursement. orders of the Corporation Commission shall be judicial only, and in all appeals ¶15 An evidentiary hearing before an ALJ involving an asserted violation of any right followed and Medicine Park presented testi- of the parties under the Constitution of the mony from John Harris, Managing Partner of United States or the Constitution of the Telcom Advisory Group. Harris testified that State of Oklahoma, the Court shall exercise his group prepared and reviewed relevant in- its own independent judgment as to both formation such as cost studies, accounting the law and the facts. In all other appeals records and other confidential, financial mate- from orders of the Corporation Commis- rials, all of which support the figures requested sion the review by the Supreme Court shall in Medicine Park’s application for reimburse- not extend further than to determine ment. Further, the PUD Administrator, who whether the Commission has regularly had reviewed all documents on site, was made pursued its authority, and whether the available for further questions and cross-exam- findings and conclusions of the Commis- ination. After considering all the facts and sion are sustained by the law and substan- evidence presented, the ALJ denied Sprint’s tial evidence. requests for reconsideration and recommended approval of Medicine Park’s application, Okla. Const. art. 9, § 20. adopting the amounts as recommended by the Administrator. ¶19 The issue in this appeal concerns the Commission’s legal interpretation of the OUSF ¶16 Despite the ALJ’s recommendation, the statute and the alleged arbitrary and capricious Commission issued an order denying Medi- denial of funding in violation of the Oklahoma cine Park’s request for reimbursement. The Constitution. Constitutional implications as Commission concluded that there was no dis- well as statutory interpretation dictate our de pute that Medicine Park was an eligible service novo review of this case. Cox Oklahoma Telecom, provider qualified for reimbursement, or that it LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 had suffered a reduction in federal universal OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de service fund revenues as a result of the FCC novo standard of review, the Court has plenary, order to eliminate the LSS. Nevertheless, the independent and non-deferential authority to Commission ruled that Medicine Park was not determine whether the trial tribunal erred in its entitled to any funding because the company legal rulings. Cox Oklahoma Telecom, LLC v. State had made the confidential and proprietary in- ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, formation supporting its application available n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- for onsite review, rather than filing it with the rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d Commission as a matter of public record. 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 P.3d 841, 845. ¶17 Additionally, the Commission would not issue the reimbursement because Medicine

428 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶20 This Court has found that the Commis- opportunity to review, or even request to sion’s power “must be exercised only within review, any of the confidentially-redacted doc- the confines of its limited jurisdiction as pro- uments. Medicine Park also cites cases sup- vided by the Oklahoma Constitution” and porting the proposition that long-standing state statute.3 Pub. Serv. Co. v. State ex rel. Corp. actions or interpretations by an agency will not Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. be idly cast aside without proper notice to The Commission’s “power to regulate is not affected parties. See, e.g., Oral Roberts Univ. v. unfettered.” Pub. Serv. Co. v. State ex rel. Corp. Okla. Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. 1013, 1015 (Courts are reluctant to overturn long standing construction where parties hav- DISCUSSION ing great interest in such construction will be ¶21 Under the OUSF, eligible telecommuni- prejudiced by its change); Big Horn Coal Co. v. cations providers serving fewer than 75,000 Temple, 793 F.2d 1165, 1169 (10th Cir. 1986) access lines are entitled to recover a decrease in (“Agencies are under an obligation to follow revenues if such loss was caused by an FCC their own regulations, procedures, and prece- law. 17 O.S.Supp.2016, § 139.106(K).4 It is undis- dents, or provide a rational explanation for puted that Medicine Park is an eligible pro- their departures.”). vider under the Act. It is further undisputed ¶24 The Administrator agreed with Medicine that Medicine Park incurred a loss due to an Park that the standard procedure followed by FCC order. The Act mandates that where an the Commission had always been for an appli- FCC “order, rule or policy” has the effect of cant to fill out a Commission-approved form “decreas[ing] the federal universal service and make confidential information supporting fund revenues of an eligible local exchange its application available for the Commission to telecommunications service provider,” such review on-site. He offered that this practice provider “shall recover the decreases in reve- occurred not only in OUSF cases, but in numer- nues from the OUSF.” 17 O.S.Supp.2016, § ous other Commission matters. We find the 139.106(K)(1)(a). According to the Act’s plain Commission was not entitled to discount Med- language, Medicine Park was entitled to receive icine Park’s entire application merely because reimbursement from the OUSF for its losses. the documents the Administrator inspected ¶22 In support of the decision to deny Medi- and relied upon for his approval were not pub- cine Park’s requested funding, the Commis- licly filed of record before the Commission. sion’s majority found that Medicine Park failed ¶25 Medicine Park argues, and the Commis- to produce sufficient evidence into the record. sion does not dispute, that the Commission’s Despite acknowledging that its Administrator own rules and long-standing practices encour- reviewed Medicine Park’s application and con- aged applicants to retain its confidential sup- ducted an on-site audit of Medicine Park’s porting materials on site, making such materials confidential financial information and docu- available for review and inspection as needed to mentation, the Commission ignored the Ad- support an application. In fact, Commission ministrator’s, as well as the ALJ’s, finding that rule, OAC 165:59-3-72(d), specifically contem- the documents provided by Medicine Park plates that “documentation not contained in the supported approval of the application. The public record and not filed in the cause” may Commission complained that it was limited to nevertheless be “relied upon by the OUSF a mathematical review as many of the docu- Administrator in approving or denying an ments relied on by the Administrator were application.” The Administrator disclosed that reviewed at Medicine Park’s place of business the Commission does not even have proce- and were either not made publicly available or dures in place that would allow it to handle had redacted information due to the confiden- “the responsibility or liability” of receiving tial nature of the documents. such confidential materials. ¶23 Medicine Park points out that up until ¶26 Medicine Park filed an application, com- the filing of these companion cases, the Com- pleted by using a Commission-issued form, mission had for years previously accepted the which certified that as a result of an FCC order Administrator’s review of confidential docu- it experienced a loss of federal universal service ments on site. Medicine Park maintains that fund revenues in the amount of $102,648 for they should not be penalized for the Commis- 2014, and a projected monthly loss of $8554 sion’s option not to take advantage of the going forward. The company presented the tes-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 429 timony of an independent witness who reviewed the availability of affordable telephone service all of Medicine Park’s pertinent, confidential to customers in rural and high cost areas materials, and who confirmed the validity of the where, absent the subsidies, their provision requested amounts. The Administrator also re- would be cost-prohibitive. We agree. The Com- viewed the confidential materials and agreed mission ignores the plain language of the Act that Medicine Park’s application and documen- and attempts to impose new conditions not tation supported the relief requested, as nomi- required by the Act, nor supportive of its pur- nally modified by the Administrator to a lump pose. Generally, applicants who filed under sum of $102,629 and $8552.42 monthly. The Subsection (K) could expect a quick reimburse- ALJ likewise agreed with both the independent ment after approval by the Administrator that witness and the Administrator that Medicine the application had followed the statutory Park’s application and offered materials sup- process. The Commission’s review of a Subsec- ported approval thereof. Despite these find- tion (K) application would only arise if an out- ings, the Commission unexpectedly faulted side entity filed a Request for Reconsideration Medicine Park for failing to publicly submit its of the Administrator’s determination. Where confidential materials when documents of such no such reconsideration request is filed, the a nature have not been typically filed with the Administrator’s approval would typically trig- Commission, nor required. Such flawed rea- ger a Commission order granting the appli- soning should not support a denial of the cant’s request. application herein. ¶29 The Commission majority’s aversion to ¶27 Additionally, for the first time in these the OUSF legislation has no bearing on the companion cases, the Commission interpreted validity of an applicant’s request for funding. Subsection (K) to impose a finding that Medi- We agree with the dissenting Commissioner that cine Park’s rates for primary universal services it is our duty to uphold legislation as it is enact- are reasonable and affordable pursuant to Sub- ed whether we agree with the policy behind section (B) and that the requested funding is such legislation or not. We agree with the find- necessary to maintain such reasonable and ings of the Administrator and ALJ herein. affordable rates. As mentioned, supra, § CONCLUSION 139.106(K)(1)(a) plainly provides that where a provider incurs revenue losses due to an FCC ¶30 Although the Commission is not bound law, order or policy, the provider SHALL by the Administrator’s recommendation, we recover the cost increase from the OUSF. See 17 find that the record reflects ample evidence O.S.Supp.2016, § 139.106(K)(1)(a). There is no with which to support the Administrator’s de- mention of a condition that the applicant must termination. The Administrator, as well as the prove that its rates are reasonable and afford- dissenting Commissioner, both agreed Medi- able nor is there a requirement to find the reim- cine Park was entitled to reimbursement of the bursement necessary to maintain such rates. To losses it incurred as a result of the FCC order the contrary, § 139.106(K)(2) specifically states decreasing federal funding. The Commission’s that an application’s approval “shall not be wholesale denial of Medicine Park’s request was conditioned upon any rate case or earnings in error. Accordingly, we vacate the order of the investigation by the Commission.” 17 O.S.Supp. Commission and remand the cause for further 2016, § 139.106(K)(1)(b). We are not inclined to proceedings consistent with this opinion. add requirements to a statute that the Legisla- ture chose not to impose. See Pentagon Acad., Inc. ORDER OF THE OKLAHOMA v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 OK 98, CORPORATION COMMISSION VACATED ¶19, 82 P.3d 587, 591 (“It is not the function of the AND REMANDED. courts to add new provisions which the legisla- CONCUR: GURICH, C.J., KAUGER, WIN- ture chose to withhold.”); Minie v. Hudson, 1997 CHESTER, EDMONDSON, and DARBY, JJ. OK 26, ¶12, 934 P.2d 1082, 1087 (“This Court may not, through the use of statutory construc- CONCURRING SPECIALLY (by separate writ- tion, change, modify or amend the expressed ing): COMBS, J. intent of the Legislature.”). NOT PARTICIPATING: COLBERT, AND REIF, ¶28 Medicine Park contends that the Com- JJ. mission’s complete denial of funding disre- COMBS, J., concurring: gards the very purpose of the OUSF to ensure

430 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶1 I concur in the majority opinion but write against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regu- separately to emphasize the audacity of the lations, and shall require them to establish and maintain all such Commission’s blanket denial of Appellant’s, public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regula- Medicine Park Telephone Company, applications, and requirements, the Commission may, from time to time, tion. The legislature established a process by alter or amend. 4. Subsection (K) of the Act provides in toto: which a rural provider with limited resources is K. 1. Each request for OUSF funding by an eligible ILEC serving allowed to be reimbursed from the Oklahoma less than seventy-five thousand access lines shall be premised Universal Service Fund (OUSF) when the rural upon the occurrence of one or more of the following: a. in the event of a Federal Communications Commission order, provider meets increased costs in fulfilling a rule or policy, the effect of which is to decrease the federal uni- mandate to provide reliable and affordable tele- versal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange phone service to Oklahomans in remote and telecommunications service provider shall recover the decreases underserved areas. The Commission’s majority in revenues from the OUSF, b. if, as a result of changes required by existing or future federal all but ignored the evidence presented ostensi- or state regulatory rules, orders, or policies or by federal or state bly because of a fundamental disagreement with law, an eligible local exchange telecommunications service pro- 1 vider experiences a reduction in revenues or an increase in costs, the Oklahoma Universal Service Fund. This is it shall recover the revenue reductions or cost increases from the nothing more than an attempt to further disen- OUSF, the recovered amounts being limited to the net reduction franchise rural Oklahoma from basic telephone in revenues or cost increases, or c. if, as a result of changes made as required by existing or future services. federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications ser- WINCHESTER, J., vice provider experiences a reduction in costs, upon approval by the Commission, the provider shall reduce the level of OUSF 1. Section 139.107 provides, in part: funding it receives to a level sufficient to account for the reduc- A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- tion in costs. 2. The receipt of OUSF funds for any of the changes referred to versal Service Fund (OUSF) shall be funded in a competitively in this subsection shall not be conditioned upon any rate case or neutral manner not inconsistent with federal law by all contrib- earnings investigation by the Commission. The Commission uting providers. The funding from each contributing provider shall, pursuant to subsection D of this section, approve the shall be based on the total intrastate retail Oklahoma Voice over request for payment or adjustment of payment from the OUSF Internet Protocol (VoIP) revenues and intrastate telecommunica- based on a comparison of the total annual revenues received tions revenues, from both regulated and unregulated services, of from the sources affected by the changes described in paragraph the contributing provider, hereinafter referred to as assessed 1 of this subsection by the requesting eligible local exchange revenues, as a percentage of all assessed revenues of the contrib- telecommunications service provider during the most recent uting providers, or such other assessment methodology not twelve (12) months preceding the request, and the reasonable inconsistent with federal law. VoIP services shall be assessed only calculation of total annual revenues or cost increases which will as provided for in the decision of the Federal Communications be experienced after the changes are implemented by the Commission, FCC 10-185, released November 5, 2010, or such requesting eligible local exchange telecommunications service other assessment methodology that is not inconsistent with federal provider. law. The Commission may after notice and hearing modify the 17 O.S.Supp.2016, § 139.106 (K). contribution methodology for the OUSF and OLF, provided the new methodology is not inconsistent with federal law. B. The Corporation Commission shall establish the OLF assess- COMBS, J., concurring: ment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF 1. Appellant’s Brief in Chief at 1, January 29, 2018, states “Commis- requests for funding as provided for in the Oklahoma Telecom- sioner Bob Anthony has repeatedly spoken out against the law [Okla- munications Act of 1997. The administration of the OLF and homa Universal Service Fund], even going so far as to ask the Legisla- OUSF shall be provided by the Public Utility Division of the ture, in writing, to repeal it.” He stated the Fund is a bad program that Commission. The administrative function shall be headed by the should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. Administrator as defined in Section 139.102 of this title. The 113,362. The Brief also states other members of the Commission have Administrator shall be an independent evaluator. The Adminis- expressed their displeasure with the law. Commissioner Murphy, how- trator may enter into contracts to assist with the administration ever, dissented against the denial of the request for OUSF funding. of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is 2019 OK 23 used in § 139.107 means “providers, including but not limited to providers of intrastate telecommunications, providers of intrastate tele- MEDICINE PARK TELEPHONE communications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over COMPANY, Appellant, v. STATE OF Internet Protocol (VoIP). Contributing providers shall contribute to the OKLAHOMA EX REL. OKLAHOMA Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 O.S.Supp.2016, § 139.102 (8). CORPORATION COMMISSION, Appellee. 2. Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including Case No. 116,194. April 16, 2019 the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. APPEAL FROM OKLAHOMA 116,194, 116,214, 116,215, 116,421, and 116,422. CORPORATION COMMISSION CAUSE 3. The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: NO. PUD 201600458 the power and authority and [is] charged with the duty of super- vising, regulating and controlling all transportation and trans- Dana Murphy, Chairman; Todd Hiett, Vice mission companies doing business in this State, in all matters Chairman; and Bob Anthony, Commissioner. relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end ¶0 Medicine Park Telephone Company the Commission shall, from time to time, prescribe and enforce appeals the Oklahoma Corporation Commis-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 431 sion’s denial of its application for reimburse- homa Legislature followed suit with its own, ment from the Oklahoma Universal Services complementary Oklahoma Telecommunica- Fund for reasonable investments and expenses tions Act of 1997 (the “Act”). 17 O.S.2011 and incurred in providing primary universal ser- Supp.2016, §§ 139.101 et seq. vice to its customers. We find that the Commis- ¶3 Under the state and federal Acts, certain sion’s wholesale denial of the reimbursement telecommunications providers known as “car- of any of the requested funds is in error and riers of last resort” are required to provide, vacate the Commission’s ruling and remand without discrimination, telephone service to with directions. any customer requesting it. See 47 U.S.C. § 201; ORDER OF THE OKLAHOMA 17 O.S.2011 and Supp.2016, §§ 101 et seq. In CORPORATION COMMISSION addition, the provider must offer the requested REVERSED AND REMANDED WITH services at reasonable and affordable rates in INSTRUCTIONS. line with those offered in more urban areas even if serving such customers would not be William H. Hoch, Melanie Wilson Rughani, economically sustainable. See 47 U.S.C. § 202; Crowe & Dunlevy, P.C., Oklahoma City, Okla- 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the homa, and Ron Commingdeer, Kendall W. legislation was to provide affordable and qual- Parrish, Ron Commingdeer & Associates, ity primary universal services to all despite the Oklahoma City, Oklahoma, for Appellant. challenges of its accessibility. Michele Craig, Deputy General Counsel, Okla- ¶4 In an effort to defray the costs of deliver- homa Corporation Commission, Oklahoma ing phone service in rural, more remote areas, City, Oklahoma, for Appellee. the federal and state Acts each established a Nancy M. Thompson, Oklahoma City, Okla- fund to help support eligible service providers. homa, for Sprint Communications Company, Within Oklahoma’s Act, the Legislature creat- L.P., Sprint Spectrum L.P. and Virgin Mobile ed the OUSF to help pay for reasonable invest- USA, L.P. ments and expenses incurred by “eligible local exchange telecommunications service provid- Jack G. Clark, Jr., Clark, Wood & Patten, P.C., ers” in providing primary universal services to Oklahoma City, Oklahoma, for Verizon. customers in rural and high-cost areas “at rates WINCHESTER, J., that are reasonable and affordable.” See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). ¶1 The issue before this Court is whether the Oklahoma Corporation Commission (“the ¶5 The OUSF generally provides that an eli- Commission”) erroneously withheld funding gible provider “may request funding from the to be provided to Medicine Park Telephone OUSF as necessary to maintain rates for pri- Company (“Medicine Park”) pursuant to the mary universal services that are reasonable provisions of the Oklahoma Universal Service and affordable.” 17 O.S.Supp.2016, § 139.106 Fund (“OUSF”), 17 O.S.Supp.2016, § 139.106. (G). The OUSF is funded by a charge paid by For the reasons set forth herein, we find that certain telecommunications carriers that have revenues as defined in Section 139.107. See 17 Medicine Park is entitled to the requested 1 funding. O.S.Supp.2016, §§ 139.106 (D) and 139.107. STATUTORY BACKGROUND ¶6 The Commission’s rules governing the process for obtaining funding from the OUSF ¶2 In 1996, the U.S. Congress passed the fed- are set out in OAC 165:59, Part 9 and are over- eral Telecommunications Act, 47 U.S.C. §§ 151 seen by the Administrator of the Commission’s et seq., in part, to promote a policy of universal Public Utilities Division (“PUD”). Under the service that would provide telecommunication rules, upon receipt of a request for OUSF fund- services to consumers all over the country, ing, the OUSF Administrator reviews the including “those in rural, insular, and high cost request and, if appropriate, reimburses the areas.” The Act seeks to provide access to ser- provider consistent with the Act. OAC 165:59- vices that are “reasonably comparable to those 7-1(d) and OAC 165:59-3-62(g). Requests for services provided in urban areas and that are Subsection (G)’s “as necessary” distributions available at rates that are reasonably compara- are evaluated through a detailed study and ble to rates charged for similar services in analysis of the “costs of providing primary urban areas.” 47 U.S.C. § 254(b)(3). The Okla- universal services” as well as potential reve-

432 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 nue. 17 O.S.Supp.2016, § 139.106 (H). The has stated that although she may not agree review process for claims submitted under with the need for the fund, she feels she must Subsection (G) can be time-consuming and uphold the Legislature’s will as long as the tedious, often resulting in a significant delay in fund exists. She dissented to the denial of receipt of any funds.2 As a result, the Legisla- Medicine Park’s request stating that because ture provided a mechanism within the Act that she didn’t believe the majority decision “com- would allow providers in the rural areas quick- ports with the Oklahoma Legislature’s intent er access to mandatory payments in certain, to, in part, provide support to small, rural car- limited circumstances. See 17 O.S.Supp.2016, § riers who have experienced increases in costs 139.106(K). as a result of changes required by governmen- ¶7 Subsection (K)(1)(a) mandates that, if “a tal acts and with the Legislative policy to pre- Federal Communications Commission order, serve and advance universal services.” rule or policy” has the effect of “decreas[ing] ¶10 In 2014, the Commission denied a request the federal universal service fund revenues of for OUSF funding from Dobson Telephone an eligible local exchange telecommunications Company. See Dobson Telephone Co. v. State ex service provider,” that provider “shall recover rel. Okla. Corporation Comm., 2017 OK CIV APP the decreases in revenues from the OUSF.” 17 16, 392 P.3d 295. Dobson sought reimburse- O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, ment, under Subsection (K)1)(b) of the OUSF, Subsection (K)(1)(b) provides that, if changes for costs incurred to relocate its telephone required by “federal or state regulatory rules, facilities as required by the city of Oklahoma orders, or policies” reduce the revenues or City for a street-widening project. Because the increase the costs to an eligible local exchange request had been issued by the city, and not the telecommunications service provider, then that county commission or ODOT, the Commission provider “shall recover the revenue reductions narrowly interpreted the statute and conclud- or cost increases from the OUSF.” 17 O.S.Supp. ed that the Fund was not authorized to pay for 2016, § 139.106 (K)(1)(b). Under Subsection (K), such relocation costs. distributions from the OUSF “shall not be conditioned upon any rate case or earnings inves- ¶11 The Court of Civil Appeals found that tigation by the Commission,” but, instead, the Commission’s interpretation of the statu- should be paid in an amount equal to the tory language defeats the purpose of the Fund increase in costs or reduction in revenues. 17 and is contra to the legislative intent to defray O.S.Supp.2016, § 139.106 (K)(2). increased costs incurred by eligible telecommunications service providers resulting from ¶8 The Commissioners are free to approve or government action, no matter the originating reject any determination by the OUSF Admin- government entity. Dobson Telephone Co. v. State istrator. Under the rules, if no one objects to the ex rel. Okla. Corporation Comm., 2017 OK CIV Administrator’s determination, an order APP 16, ¶21, 392 P.3d 295, 305. The Commis- approving the funding request is issued by the sion’s Order was vacated and the matter was Commission. OAC 165:59-3-62(j). If, however, a remanded for further proceedings consistent party is not satisfied with the OUSF Adminis- with the Court of Civil Appeals opinion. Dob- trator’s determination, the party may file a son Telephone Co. v. State ex rel. Okla. Corpora- request for reconsideration by the Commission tion Comm., 2017 OK CIV APP 16, ¶23, 392 and the matter is set for hearing. OAC 165:59- P.3d 295, 305. This Court approved the case 3-62(h) and (i). The Commission is the ultimate for publication. arbiter of the issues. See, Cameron v. Corporation Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on FACTUAL BACKGROUND appeal from an oil and gas spacing order, the ¶12 The FCC created a program called Inter- Court noted that regardless of whatever weight state Common Line Support (ICLS), which was the Commission may attach to an examiner’s paid from the federal Universal Service Fund. report, “the Commission is the final arbiter of ICLS was available to, among others, rural the issues”). See also, State ex rel. Cartwright v. incumbent carriers and was designed to help Southwestern Bell Telephone Co., 1983 OK 40, such carriers recoup some of the high fixed ¶32, 662 P.2d 675, 681 (quoting Cameron). costs of providing telephone service in areas ¶9 The Commission, by a 2-1 vote, denied with fewer customers while also ensuring that reimbursement. Commissioner Dana Murphy, their subscriber line charges remained afford- dissenting in each of these companion cases, able to their customers. Effective January 1, 2012,

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 433 the FCC changed its rules to limit the operations order to eliminate the ICLS. Nevertheless, the expenses that may be included in an ICLS calcu- Commission ruled that Medicine Park could lation. The FCC did not, however, eliminate the not recover any funding because the company legal requirement that Medicine Park and other had made the confidential and proprietary carriers of last resort continue to provide such information supporting its application avail- services. able for onsite review, rather than filing it with the Commission as a matter of public record. ¶13 The OUSF mandates that, “in the event of a federal communications commission order, ¶17 Additionally, the Commission would not rule or policy, the effect of which is to decrease issue the reimbursement because Medicine the federal universal service fund revenues of Park “failed to prove, and no determination an eligible local exchange telecommunications was made as to, whether Medicine Park’s rates service provider, the decrease in revenue shall for primary universal services are reasonable be recovered from the OUSF.” 17 O.S.Supp.2016, and affordable,” or “that the requested funding §106.139(K)(1)(a). After its federal ICLS sup- is necessary to enable Medicine Park to pro- port was eliminated by FCC order, Medicine vide primary universal services at rates that Park submitted an application for reimburse- are reasonable and affordable.” Medicine Park ment to recover this loss of revenue under § appealed, requesting that the Commission’s 106.139 (K)(1)(a); specifically, $60,707.00 for denial be reversed. We retained the matter and 2014 and $5,058.92 per month beginning Janu- made it a companion to Case Nos. 115,453, ary 2015. 116,193, 116,214, 116,215, 116,421 and 116,422. ¶14 The PUD Administrator conducted a STANDARD OF REVIEW thorough review of Medicine Park’s applica- ¶18 This Court’s review of decisions of the tion and ultimately recommended approval of Commission is governed by the Oklahoma the amounts as requested. Various other tele- Constitution, article 9, § 20, which states as fol- communications companies, including Sprint, lows, in relevant part: Virgin Mobile, and Verizon (collectively hereafter “Sprint”) filed a request for reconsideration, The Supreme Court’s review of appealable requesting denial of any reimbursement. orders of the Corporation Commission shall be judicial only, and in all appeals ¶15 An evidentiary hearing before an ALJ involving an asserted violation of any right followed and Medicine Park presented testi- of the parties under the Constitution of the mony from John Harris, Managing Partner of United States or the Constitution of the Telcom Advisory Group. Harris testified that State of Oklahoma, the Court shall exercise his group prepared and reviewed relevant its own independent judgment as to both information such as cost studies, accounting the law and the facts. In all other appeals records and other confidential, financial mate- from orders of the Corporation Commis- rials, all of which support the figures requested sion the review by the Supreme Court in Medicine Park’s application for reimburse- shall not extend further than to determine ment. Further, the PUD Administrator, who whether the Commission has regularly had reviewed all documents on site, was made pursued its authority, and whether the available for further questions and cross-exam- findings and conclusions of the Commis- ination. After considering all the facts and evi- sion are sustained by the law and substan- dence presented, the ALJ denied Sprint’s tial evidence. requests for reconsideration and recommended approval of Medicine Park’s application, Okla. Const. art. 9, § 20. adopting the amounts requested by Medicine ¶19 The issue in this appeal concerns the Park and recommended by the Administrator. Commission’s legal interpretation of the OUSF ¶16 Despite the ALJ’s recommendation, the statute and the alleged arbitrary and capricious Commission issued an order denying Medi- denial of funding in violation of the Oklahoma cine Park’s request for reimbursement. The Constitution. Constitutional implications as Commission concluded that there was no dis- well as statutory interpretation dictate our de pute that Medicine Park was an eligible service novo review of this case. Cox Oklahoma Telecom, provider qualified for reimbursement, or that it LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 had suffered a reduction in federal universal OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de service fund revenues as a result of the FCC novo standard of review, the Court has plenary,

434 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 independent and non-deferential authority to had redacted information due to the confiden- determine whether the trial tribunal erred in its tial nature of the documents. legal rulings. Cox Oklahoma Telecom, LLC v. State ¶23 Medicine Park points out that up until ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, the filing of these companion cases, the Com- n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- mission had for years previously accepted the rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d Administrator’s review of confidential docu- 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 ments on site. Medicine Park maintains that P.3d 841, 845. they should not be penalized for the Commis- ¶20 This Court has found that the Commis- sion’s option not to take advantage of the op- sion’s power “must be exercised only within portunity to review, or even request to review, the confines of its limited jurisdiction as pro- any of the confidentially-redacted documents. vided by the Oklahoma Constitution” and Medicine Park also cites cases supporting the state statute.3 Pub. Serv. Co. v. State ex rel. Corp. proposition that long-standing actions or inter- Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. pretations by an agency will not be idly cast The Commission’s “power to regulate is not aside without proper notice to affected parties. unfettered.” Pub. Serv. Co. v. State ex rel. Corp. See, e.g., Oral Roberts Univ. v. Okla. Tax Comm’n, Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. 1985 OK 97, ¶10, 714 P.2d 1013, 1015 (Courts are reluctant to overturn long standing con- DISCUSSION struction where parties having great interest in ¶21 Under the OUSF, eligible telecommuni- such construction will be prejudiced by its cations providers serving fewer than 75,000 change); Big Horn Coal Co. v. Temple, 793 F.2d access lines are entitled to recover a decrease in 1165, 1169 (10th Cir. 1986)(“Agencies are under revenues if such loss was caused by an FCC an obligation to follow their own regulations, law. 17 O.S.Supp.2016, § 139.106(K).4 It is undis- procedures, and precedents, or provide a ratio- puted that Medicine Park is an eligible pro- nal explanation for their departures.”). vider under the Act. It is further undisputed ¶24 The Administrator agreed with Medicine that Medicine Park incurred a loss due to an Park that the standard procedure followed by FCC order. The Act mandates that where an the Commission had always been for an appli- FCC “order, rule or policy” has the effect of cant to fill out a Commission-approved form “decreas[ing] the federal universal service and make confidential information supporting fund revenues of an eligible local exchange its application available for the Commission to telecommunications service provider,” such review on-site. He offered that this practice provider “shall recover the decreases in reve- occurred not only in OUSF cases, but in numer- nues from the OUSF.” 17 O.S.Supp.2016, § 139. ous other Commission matters. We find the 106(K)(1)(a). According to the Act’s plain lan- Commission was not entitled to discount Med- guage, Medicine Park was entitled to receive icine Park’s entire application merely because reimbursement from the OUSF for its losses. the documents the Administrator inspected ¶22 In support of the decision to deny Medi- and relied upon for his approval were not pub- cine Park’s requested funding, the Commis- licly filed of record before the Commission. sion’s majority found that Medicine Park failed ¶25 Medicine Park argues, and the Commis- to produce sufficient evidence into the record. sion does not dispute, that the Commission’s Despite acknowledging that its Administrator own rules and long-standing practices encour- reviewed Medicine Park’s application and con- aged applicants to retain its confidential sup- ducted an on-site audit of Medicine Park’s porting materials on site, making such materi- confidential financial information and docu- als available for review and inspection as mentation, the Commission ignored the Ad- needed to support an application. In fact, Com- ministrator’s, as well as the ALJ’s, finding that mission rule, OAC 165:59-3-72(d), specifically the documents provided by Medicine Park contemplates that “documentation not con- supported approval of the application. The tained in the public record and not filed in the Commission complained that it was limited to cause” may nevertheless be “relied upon by a mathematical review as many of the docu- the OUSF Administrator in approving or deny- ments relied on by the Administrator were ing an application.” The Administrator dis- reviewed at Medicine Park’s place of business closed that the Commission does not even and were either not made publicly available or have procedures in place that would allow it to

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 435 handle “the responsibility or liability” of tion of the courts to add new provisions which receiving such confidential materials. the legislature chose to withhold.”); Minie v. Hudson, 1997 OK 26, ¶12, 934 P.2d 1082, 1087 ¶26 Medicine Park filed an application, com- (“This Court may not, through the use of statu- pleted by using a Commission-issued form, tory construction, change, modify or amend the which certified that as a result of an FCC order expressed intent of the Legislature.”). it experienced a loss of federal universal service fund revenues in the amount of $60,707 for ¶28 Medicine Park contends that the Com- 2014, and a projected monthly loss of $5,058.92 mission’s complete denial of funding disre- going forward. The company presented the gards the very purpose of the OUSF to ensure testimony of an independent witness who the availability of affordable telephone service reviewed all of Medicine Park’s pertinent, con- to customers in rural and high cost areas fidential materials, and who confirmed the where, absent the subsidies, their provision validity of the requested amounts. The Admin- would be cost-prohibitive. We agree. The Com- istrator also reviewed the confidential materi- mission ignores the plain language of the Act als and agreed that Medicine Park’s applica- and attempts to impose new conditions not tion and documentation supported the relief required by the Act, nor supportive of its pur- requested. The ALJ likewise agreed with both pose. Generally, applicants who filed under the independent witness and the Administra- Subsection (K) could expect a quick reimburse- tor that Medicine Park’s application and ment after approval by the Administrator that offered materials supported approval thereof. the application had followed the statutory Despite these findings, the Commission unex- process. The Commission’s review of a Subsec- pectedly faulted Medicine Park for failing to tion (K) application would only arise if an out- publicly submit its confidential materials when side entity filed a Request for Reconsideration documents of such a nature have not been of the Administrator’s determination. Where typically filed with the Commission, nor no such reconsideration request is filed, the required. Such flawed reasoning should not Administrator’s approval would typically trig- support a denial of the application herein. ger a Commission order granting the applicant’s request. ¶27 Additionally, for the first time in these companion cases, the Commission interpreted ¶29 The Commission majority’s aversion to Subsection (K) to impose a finding that Medi- the OUSF legislation has no bearing on the cine Park’s rates for primary universal services validity of an applicant’s request for funding. are reasonable and affordable pursuant to Sub- We agree with the dissenting Commissioner section (B) and that the requested funding is that it is our duty to uphold legislation as it is necessary to maintain such reasonable and enacted whether we agree with the policy affordable rates. As mentioned, supra, § 139. behind such legislation or not. We agree with 106(K)(1)(a) plainly provides that where a pro- the findings of the Administrator and ALJ vider incurs revenue losses due to an FCC law, herein. order or policy, the provider SHALL recover CONCLUSION the cost increase from the OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(a). There is no ¶30 Although the Commission is not bound mention of a condition that the applicant must by the Administrator’s recommendation, we prove that its rates are reasonable and afford- find that the record reflects ample evidence able nor is there a requirement to find the reim- with which to support the Administrator’s bursement necessary to maintain such rates. To determination. The Administrator, as well as the contrary, § 139.106(K)(2) specifically states the dissenting Commissioner, both agreed that an application’s approval “shall not be Medicine Park was entitled to reimbursement conditioned upon any rate case or earnings of the losses it incurred as a result of the FCC investigation by the Commission.” 17 O.S.Supp. order decreasing federal funding. The Com- 2016, § 139.106(K)(1)(b). We are not inclined to mission’s wholesale denial of Medicine Park’s add requirements to a statute that the Legisla- request was in error. Accordingly, we vacate ture chose not to impose. See Pentagon Acad., the order of the Commission and remand the Inc. v. Indep. Sch. Dist. No. 1 of Tulsa Cty., 2003 cause for further proceedings consistent with OK 98, ¶19, 82 P.3d 587, 591 (“It is not the func- this opinion.

436 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ORDER OF THE OKLAHOMA viders of intrastate telecommunications, providers of intrastate telecommunications for a fee on a non-common-carrier basis, providers of CORPORATION COMMISSION VACATED wireless telephone service and providers of interconnected Voice over AND REMANDED. Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 CONCUR: GURICH, C.J., KAUGER, WIN- O.S.Supp.2016, § 139.102 (8). 2. Companion Case No. 115,453 involves a request for funds under CHESTER, EDMONDSON, and DARBY, JJ. Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set CONCURRING SPECIALLY (by separate writ- forth more fully herein. Those cases, also decided today, are Case Nos. ing): COMBS, J. 116,193, 116,214, 116,215, 116,421, and 116,422. 3. The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: NOT PARTICIPATING: COLBERT, AND REIF, the power and authority and [is] charged with the duty of super- JJ. vising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters COMBS, J., concurring: relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust ¶1 I concur in the majority opinion but write discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce separately to emphasize the audacity of the against such companies, in the manner hereinafter authorized, Commission’s blanket denial of Appellant’s, such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such Medicine Park Telephone Company, applica- public service, facilities, and conveniences as may be reasonable tion. The legislature established a process by and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, which a rural provider with limited resources is alter or amend. allowed to be reimbursed from the Oklahoma 4. Subsection (K) of the Act provides, in toto: Universal Service Fund (OUSF) when the rural K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised provider meets increased costs in fulfilling a upon the occurrence of one or more of the following: mandate to provide reliable and affordable tele- a. in the event of a Federal Communications Commission order, rule or policy, the effect of which is to decrease the federal uni- phone service to Oklahomans in remote and versal service fund revenues of an eligible local exchange tele- underserved areas. The Commission’s majority communications service provider, the eligible local exchange telecommunications service provider shall recover the decreases all but ignored the evidence presented ostensi- in revenues from the OUSF, bly because of a fundamental disagreement b. if, as a result of changes required by existing or future federal 1 or state regulatory rules, orders, or policies or by federal or state with the Oklahoma Universal Service Fund. law, an eligible local exchange telecommunications service pro- This is nothing more than an attempt to further vider experiences a reduction in revenues or an increase in costs, disenfranchise rural Oklahoma from basic tele- it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction phone services. in revenues or cost increases, or c. if, as a result of changes made as required by existing or future WINCHESTER, J., federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications ser- 1. Section 139.107 provides, in part: vice provider experiences a reduction in costs, upon approval by A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- the Commission, the provider shall reduce the level of OUSF versal Service Fund (OUSF) shall be funded in a competitively funding it receives to a level sufficient to account for the reduc- neutral manner not inconsistent with federal law by all contrib- tion in costs. uting providers. The funding from each contributing provider 2. The receipt of OUSF funds for any of the changes referred to shall be based on the total intrastate retail Oklahoma Voice over in this subsection shall not be conditioned upon any rate case or Internet Protocol (VoIP) revenues and intrastate telecommunica- earnings investigation by the Commission. The Commission tions revenues, from both regulated and unregulated services, of shall, pursuant to subsection D of this section, approve the the contributing provider, hereinafter referred to as assessed request for payment or adjustment of payment from the OUSF revenues, as a percentage of all assessed revenues of the contrib- based on a comparison of the total annual revenues received uting providers, or such other assessment methodology not incon- from the sources affected by the changes described in paragraph sistent with federal law. VoIP services shall be assessed only as 1 of this subsection by the requesting eligible local exchange provided for in the decision of the Federal Communications Com- telecommunications service provider during the most recent mission, FCC 10-185, released November 5, 2010, or such other twelve (12) months preceding the request, and the reasonable assessment methodology that is not inconsistent with federal law. calculation of total annual revenues or cost increases which will The Commission may after notice and hearing modify the contri- be experienced after the changes are implemented by the bution methodology for the OUSF and OLF, provided the new requesting eligible local exchange telecommunications service methodology is not inconsistent with federal law. provider. B. The Corporation Commission shall establish the OLF assess- 17 O.S.Supp.2016, § 139.106 (K). ment and the OUSF assessment at a level sufficient to recover costs of administration and payments for OUSF and OLF COMBS, J., concurring: requests for funding as provided for in the Oklahoma Telecom- munications Act of 1997. The administration of the OLF and 1. Appellant’s Brief in Chief at 1, January 29, 2018, states “Commis- OUSF shall be provided by the Public Utility Division of the sioner Bob Anthony has repeatedly spoken out against the law [Okla- Commission. The administrative function shall be headed by the homa Universal Service Fund], even going so far as to ask the Legisla- Administrator as defined in Section 139.102 of this title. The ture, in writing, to repeal it.” He stated the Fund is a bad program that Administrator shall be an independent evaluator. The Adminis- should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. trator may enter into contracts to assist with the administration 113,362. The Brief also states other members of the Commission have of the OLF and OUSF. expressed their displeasure with the law. Commissioner Murphy, how- 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is ever, dissented against the denial of the request for OUSF funding. used in § 139.107 means “providers, including but not limited to pro-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 437 2019 OK 24 O.S.Supp.2016, § 139.106. For the reasons set forth herein, we find that Dobson is entitled to DOBSON TELEPHONE COMPANY d/b/a the requested funding. McLOUD TELEPHONE COMPANY, Appellant, v. STATE OF OKLAHOMA EX STATUTORY BACKGROUND REL. OKLAHOMA CORPORATION ¶2 In 1996, the U.S. Congress passed the fed- COMMISSION, Appellee eral Telecommunications Act, 47 U.S.C. §§ 151 Case No. 116,214. April 16, 2019 et seq., in part, to promote a policy of universal service that would provide telecommunication APPEAL FROM OKLAHOMA services to consumers all over the country, CORPORATION COMMISSION CAUSE including “those in rural, insular, and high cost NO. PUD 201600493 areas.” The Act seeks to provide access to ser- Dana Murphy, Chairman; Todd Hiett, Vice vices that are “reasonably comparable to those Chairman; and Bob Anthony, Commissioner. services provided in urban areas and that are available at rates that are reasonably compara- ¶0 Dobson Telephone Company d/b/a Mc- ble to rates charged for similar services in Loud Telephone Company appeals the Okla- urban areas.” 47 U.S.C. § 254(b)(3). The Okla- homa Corporation Commission’s denial of its homa Legislature followed suit with its own, application for reimbursement from the Okla- complementary Oklahoma Telecommunica- homa Universal Services Fund for expenses tions Act of 1997 (the “Act”). 17 O.S.2011 and incurred when it was ordered by the State Supp.2016, §§ 139.101 et seq. Department of Transportation to relocate its telephone lines within the public right-of-way ¶3 Under the state and federal Acts, certain of a State construction project. We find that the telecommunications providers known as “car- Commission’s wholesale denial of the reim- riers of last resort” are required to provide, bursement of the requested funds is in error. without discrimination, telephone service to The Commission’s ruling is hereby vacated any customer requesting it. See 47 U.S.C. § 201; and the matter is remanded with directions to 17 O.S.2011 and Supp.2016, §§ 136 and 138. In approve the requested funding. addition, the provider must offer the requested services at reasonable and affordable rates in ORDER OF THE OKLAHOMA line with those offered in more urban areas CORPORATION COMMISSION even if serving such customers would not be REVERSED AND REMANDED WITH economically sustainable. See 47 U.S.C. § 202; INSTRUCTIONS. 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the William H. Hoch, Melanie Wilson Rughani, legislation was to provide affordable and qual- Crowe & Dunlevy, P.C., Oklahoma City, Okla- ity primary universal services to all despite the homa, and Ron Commingdeer, Kendall W. Par- challenges of its accessibility. rish, Ron Commingdeer & Associates, Okla- ¶4 In an effort to defray the costs of deliver- homa City, Oklahoma, for Appellant. ing phone service in rural, more remote areas, Michele Craig, Deputy General Counsel, Okla- the federal and state Acts each established a homa Corporation Commission, Oklahoma fund to help support eligible service providers. City, Oklahoma, for Appellee. Within Oklahoma’s Act, the Legislature created the OUSF to help pay for reasonable invest- Nancy M. Thompson, Oklahoma City, Okla- ments and expenses incurred by “eligible local homa, for Sprint Communications Company, exchange telecommunications service provid- L.P., Sprint Spectrum L.P. and Virgin Mobile ers” in providing primary universal services to USA, L.P. customers in rural and high-cost areas “at rates WINCHESTER, J., that are reasonable and affordable.” See 17 O.S.Supp.2016, § 139.106 (A), (B), and (G). The ¶1 The issue before this Court is whether the OUSF generally provides that an eligible pro- Oklahoma Corporation Commission (“the vider “may request funding from the OUSF as Commission”) erroneously withheld funding necessary to maintain rates for primary univer- to be provided to Dobson Telephone Company sal services that are reasonable and afford- d/b/a McLoud Telephone Company (“Dob- able.” 17 O.S.Supp.2016, § 139.106 (G). The son”) pursuant to the provisions of the Okla- OUSF is funded by a charge paid by certain homa Universal Service Fund (“OUSF”), 17 telecommunications carriers that have reve-

438 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 nues as defined in Section 139.107. See 17 quest for reconsideration by the Commission O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 and the matter is set for hearing. OAC 165:59- 3-62(h) and (i). The Commission is the ultimate ¶5 The Commission’s rules governing the arbiter of the issues. See, Cameron v. Corporation process for obtaining funding from the OUSF Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on are set out in OAC 165:59, Part 9 and are over- appeal from an oil and gas spacing order, the seen by the Administrator of the Commission’s Court noted that regardless of whatever weight Public Utilities Division (“PUD”). Under the the Commission may attach to an examiner’s rules, upon receipt of a request for OUSF fund- report, “the Commission is the final arbiter of ing, the OUSF Administrator reviews the the issues”). See also, State ex rel. Cartwright v. request and, if appropriate, reimburses the pro- Southwestern Bell Telephone Co., 1983 OK 40, ¶32, vider consistent with the Act. OAC 165:59-7-1(d) 662 P.2d 675, 681 (quoting Cameron). and OAC 165:59-3-62(g). Requests for Subsec- tion (G)’s “as necessary” distributions are eval- ¶8 The Commission, by a 2-1 vote, denied uated through a detailed study and analysis reimbursement. Commissioner Dana Murphy, of the “costs of providing primary universal dissenting in each of these companion cases, services” as well as potential revenue. 17 has stated that although she may not agree O.S.Supp.2016, § 139.106 (H). The review pro- with the need for the fund, she feels she must cess for claims submitted under Subsection uphold the Legislature’s will as long as the (G) can be time-consuming and tedious, often fund exists. She dissented to the denial of resulting in a significant delay in receipt of any Medicine Park’s request stating that because funds.2 As a result, the Legislature provided a she didn’t believe the majority decision “com- mechanism within the Act that would allow ports with the Oklahoma Legislature’s intent providers in the rural areas quicker access to to, in part, provide support to small, rural car- mandatory payments in certain, limited cir- riers who have experienced increases in costs cumstances. See 17 O.S.Supp.2016, § 139.106(K). as a result of changes required by governmental acts and with the Legislative policy to pre- ¶6 Subsection (K)(1)(a) mandates that, if “a serve and advance universal services.” Federal Communications Commission order, rule or policy” has the effect of “decreas[ing] ¶9 In 2014, the Commission denied a request the federal universal service fund revenues of for OUSF funding from Dobson Telephone an eligible local exchange telecommunications Company. See Dobson Telephone Co. v. State ex service provider,” that provider “shall recover rel. Okla. Corporation Comm., 2017 OK CIV APP the decreases in revenues from the OUSF.” 17 16, 392 P.3d 295. Dobson sought reimburse- O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, ment, under Subsection (K)1)(b) of the OUSF, Subsection (K)(1)(b) provides that, if changes for costs incurred to relocate its telephone required by “federal or state regulatory rules, facilities as required by the city of Oklahoma orders, or policies” reduce the revenues or City for a street-widening project. Because the increase the costs to an eligible local exchange request had been issued by the city, and not the telecommunications service provider, then that county commission or ODOT, the Commission provider “shall recover the revenue reductions narrowly interpreted the statute and conclud- or cost increases from the OUSF.” 17 ed that the Fund was not authorized to pay for O.S.Supp.2016, § 139.106 (K)(1)(b). Under Sub- such relocation costs. section (K), distributions from the OUSF “shall ¶10 The Court of Civil Appeals found that not be conditioned upon any rate case or earn- the Commission’s interpretation of the statu- ings investigation by the Commission,” but, tory language defeats the purpose of the Fund instead, should be paid in an amount equal to and is contra to the legislative intent to defray the increase in costs or reduction in revenues. increased costs incurred by eligible telecom- 17 O.S.Supp.2016, § 139.106 (K)(2). munications service providers resulting from ¶7 The Commissioners are free to approve or government action, no matter the originating reject any determination by the OUSF Admin- government entity. Dobson Telephone Co. v. State istrator. Under the rules, if no one objects to the ex rel. Okla. Corporation Comm., 2017 OK CIV APP Administrator’s determination, an order ap- 16, ¶21, 392 P.3d 295, 305. The Commission’s proving the funding request is issued by the Order was vacated and the matter was remand- Commission. OAC 165:59-3-62(j). If, however, a ed for further proceedings consistent with the party is not satisfied with the OUSF Adminis- Court of Civil Appeals opinion. Dobson Telephone trator’s determination, the party may file a re- Co. v. State ex rel. Okla. Corporation Comm., 2017

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 439 OK CIV APP 16, ¶23, 392 P.3d 295, 305. This ¶14 Thereafter, the Commission voted, 2-1, to Court approved the case for publication. deny Dobson’s request. The two-person majority found that Dobson’s request was not suffi- FACTUAL BACKGROUND ciently supported by evidence as the confiden- ¶11 Dobson provides telecommunications tial information reviewed by its Administrator services to customers in rural areas of Oklaho- was not included in the record before the Com- ma, serving fewer than 75,000 access lines. On mission. The Commission further determined October 17, 2011, the Oklahoma Department of that Dobson failed to prove that the expendi- Transportation (ODOT) sent a letter to Dobson tures at issue were necessary to provide pri- ordering the relocation of certain telephone mary universal services at a reasonable and lines within a public right-of-way of an ODOT, affordable rate. Finally, the Commission stated highway construction project along State High- that it was without sufficient information to way 62, in Lincoln County. Dobson moved the determine whether the expenses were incurred lines as requested for a net total of $95,430.46, only for primary universal services. after accounting for limited ODOT funding in ¶15 Dobson appealed, requesting that the the amount of $7,606.13. Dobson then filed an Commission’s denial be reversed. We retained application with the Commission, under Sub- the matter and made it a companion to Case section (K)(1)(b), for reimbursement of this Nos. 115,453, 116,193, 116,194, 116,215, 116,421 amount from the OUSF using a form created and 116,422 by the Commission and following the same process as other companies when seeking an STANDARD OF REVIEW OUSF refund. ¶16 This Court’s review of decisions of the ¶12 Dobson made detailed, confidential in- Commission is governed by the Oklahoma formation regarding the project’s costs available Constitution, article 9, § 20, which states as fol- for inspection to the Commission’s OUSF lows, in relevant part: Administrator. This included information re- The Supreme Court’s review of appealable garding the costs incurred, invoices for engi- orders of the Corporation Commission neering, equipment and supplies, and internal shall be judicial only, and in all appeals employee timesheets and wages. The Admin- involving an asserted violation of any right istrator reviewed Dobson’s application, in- of the parties under the Constitution of the spected the confidential information during United States or the Constitution of the multiple on-site visits, and ultimately ap- State of Oklahoma, the Court shall exercise proved a reimbursement for Dobson in the its own independent judgment as to both amount of $95,417.92. A nominal amount of the law and the facts. In all other appeals $12.54 was disallowed due to a lack of sup- from orders of the Corporation Commis- porting invoices. sion the review by the Supreme Court shall ¶13 Various competitor telephone compa- not extend further than to determine nies, collectively known as Sprint for purposes whether the Commission has regularly of this appeal, objected and filed a Request for pursued its authority, and whether the Reconsideration on March 8, 2017. A hearing findings and conclusions of the Commis- was held before an ALJ, where the evidence sion are sustained by the law and substan- was briefed and summarized, additional testi- tial evidence. mony was taken, and the objecting parties Okla. Const. art. 9, § 20. were permitted to cross-examine witnesses – including the Administrator – and present ¶17 The issue in this appeal concerns the evidence or argument to the contrary. The ALJ Commission’s legal interpretation of the OUSF agreed that Dobson was an eligible provider,3 statute and the alleged arbitrary and capricious that the facilities in question were used in the denial of funding in violation of the Oklahoma provision of primary universal services, and Constitution. Constitutional implications as that the expenses incurred by Dobson were as well as statutory interpretation dictate our de a result of a state government mandate. On novo review of this case. Cox Oklahoma Telecom, April 13, 2017 the ALJ found that the Adminis- LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 trator correctly determined the reasonable and OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de just amount for the facility relocations. novo standard of review, the Court has plenary, independent and non-deferential authority to

440 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 determine whether the trial tribunal erred in its data requests, relevant Oklahoma Statutes,’ its legal rulings. Cox Oklahoma Telecom, LLC v. State own administrative rules regarding the OUSF,” ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, the Commission ignored both the Administra- n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- tor’s and the ALJ’s findings that the documents rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d provided by Dobson supported its request for 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 funding. The Commission complained that it P.3d 841, 845. was limited to a mathematical review as many of the documents relied on, and reviewed by, ¶18 This Court has found that the Commis- the Administrator occurred on site at Dobson’s sion’s power “must be exercised only within place of business and were not made publicly the confines of its limited jurisdiction as pro- available due to the confidential nature of the vided by the Oklahoma Constitution” and documents. state statute.4 Pub. Serv. Co. v. State ex rel. Corp. Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. ¶21 Dobson points out that up until the filing The Commission’s “power to regulate is not of these companion cases, the Commission had unfettered.” Pub. Serv. Co. v. State ex rel. Corp. for years always accepted the Administrator’s Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. review of confidential documents on site. Dob- son maintains that they should not be penal- DISCUSSION ized for the Commission’s option not to take ¶19 Under the OUSF, eligible telecommuni- advantage of the opportunity to review, or cations providers serving fewer than 75,000 even request to review, any of the confidential- access lines are entitled to recover increases in ly-redacted documents. Dobson also cites cases costs as a result of changes to facilities that are supporting the proposition that long-standing required by state or federal law. 17 O.S.Supp. actions or interpretations by an agency will not 2016, § 139.106 (K).5 It is undisputed that Dob- be idly cast aside without proper notice to son is an eligible provider under the Act. It is affected parties. See, e.g., Oral Roberts Univ. v. further undisputed that Dobson was required Okla. Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d by ODOT to relocate its lines, causing it to 1013, 1015 (Courts are reluctant to overturn incur an increase in costs. The Act’s plain lan- long standing construction where parties hav- guage mandates that where changes are “re- ing great interest in such construction will be quired by existing or future federal or state prejudiced by its change); Big Horn Coal Co. v. regulatory rules, orders, or policies or by fed- Temple, 793 F.2d 1165, 1169 (10th Cir. 1986) eral or state law,” and such changes cause an (“Agencies are under an obligation to follow eligible provider to experience an increase in their own regulations, procedures, and prece- costs, the provider “shall recover” such “cost dents, or provide a rational explanation for increases from the OUSF.” 17 O.S.Supp.2016, § their departures.”). 139.106 (K)(1)(b) (emphasis added). We have ¶22 The Administrator testified that the stan- interpreted the use of the word “shall” by the dard procedure followed by the Commission Legislature “as a legislative mandate equiva- had always been for an applicant to fill out a lent to the term ‘must’, requiring interpretation Commission-approved form and make confi- as a command.” Minie v. Hudson, 1997 OK 26, dential information supporting its application ¶7, 934 P.2d 1082, 1086. Thus, under the express available for the Commission to review on-site. provisions of the Act, Dobson was entitled to This occurred not only in OUSF cases, but in receive reimbursement from the OUSF for numerous other Commission matters. We find these cost increases. the Commission was not entitled to disregard ¶20 In support of its decision to deny Dob- Dobson’s application merely because the docu- son’s requested funding, the Commission’s ments the Administrator inspected and relied majority found that Dobson failed to produce upon for his approval were not publicly filed sufficient evidence into the record. Despite of record before the Commission. acknowledging that its “Administrator was ¶23 Dobson argues, and the Commission afforded, and took advantage of, the opportu- does not dispute, that the Commission’s own nity to perform a ‘review of the Application, rules and long-standing practices encouraged contractor’s invoices, internal invoices, con- applicants to retain confidential supporting struction drawings, pre-engineering plans, materials on site, making such materials avail- work orders, plans and maps, timesheets, able for review and inspection as needed to reimbursement checks, contracts, responses to support an application. In fact, Commission

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 441 rule, OAC 165:59-3-72(d), specifically contem- not inclined to add requirements to a statute plates that “documentation not contained in that the Legislature chose not to impose. See the public record and not filed in the cause” Pentagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of may nevertheless be “relied upon by the OUSF Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d 587, 591 (“It Administrator in approving or denying an is not the function of the courts to add new application.” The Administrator disclosed that provisions which the legislature chose to with- the Commission does not even have proce- hold.”); Minie v. Hudson, 1997 OK 26, ¶12, 934 dures in place that would allow it to handle P.2d 1082, 1087 (“This Court may not, through “the responsibility or liability” of receiving the use of statutory construction, change, such confidential materials. modify or amend the expressed intent of the Legislature.”). ¶24 Dobson filed an application, completed by using a Commission-issued form, which ¶26 Dobson contends that the Commission’s certified that as a result of an ODOT mandate complete denial of funding disregards the very to relocate its facilities it incurred an increase in purpose of the OUSF to ensure the availability costs in the amount of $95,430.46, after sub- of affordable telephone service to customers in tracting the ODOT reimbursements. The com- rural and high cost areas where, absent the pany presented the testimony of a company subsidies, their provision would be cost-pro- witness who reviewed all of Dobson’s pertinent, hibitive. We agree. The Commission ignores confidential materials, and who confirmed the the plain language of the Act and attempts to validity of the requested amounts. The Adminis- impose new conditions not required by the trator also reviewed the confidential materials Act, nor supportive of its purpose. Generally, and agreed that Dobson’s application and docu- applicants who filed under Subsection (K) mentation supported the relief requested, as could expect a quick reimbursement after ap- nominally modified by the Administrator to a proval by the Administrator that the applica- lump sum of $95,417.92. The ALJ agreed with tion had followed the statutory process. The the Administrator that Dobson’s application and Commission’s in-depth review of a Subsection offered materials supported approval thereof. (K) application would only arise if an outside Despite these findings, the Commission unex- entity filed a Request for Reconsideration of pectedly faulted Dobson for failing to publicly the Administrator’s determination. Where no submit its confidential materials when docu- such reconsideration request is filed, the Ad- ments of such a nature have not been typically ministrator’s approval, after a proper statutory filed with the Commission, nor required. Such review, would typically trigger a Commission flawed reasoning should not support a denial order granting the applicant’s request. of the application herein. ¶27 The Commission also criticized the fact ¶25 Additionally, for the first time in these that the relocated lines were used for services companion cases, the Commission interpreted not related to primary universal services. The Subsection (K) to impose a finding that Dobson’s Commission maintains that Dobson should rates for primary universal services are reason- have allocated the cost of the project between able and affordable pursuant to Subsection (B) such services. Dobson argues that a request for and that the requested funding is necessary to reimbursement under Subsection (K) does not maintain such reasonable and affordable rates. require any such cost allocation nor has the As mentioned, supra, § 139.106(K)(1)(b) plainly Commission ever required one in previous provides that where a provider incurs increased Subsection (K) matters. costs due to a state law, order or policy, the pro- ¶28 Subsection (K) plainly provides that vider SHALL recover the cost increase from the where a provider incurs cost increases due to a OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). state law or order, the provider SHALL recover There is no mention of a condition that the the cost increase from the OUSF. 17 O.S.Supp. applicant must prove that its rates are reason- 2016, § 139.106(K)(1)(b). There is no mention of able and affordable nor is there a requirement a requirement for cost allocation and we are to find the reimbursement necessary to main- not inclined to impose such requirement now. tain such rates. To the contrary, § 139.106(K)(2) The Commission again ignores the plain lan- specifically states that an application’s approv- guage of the Act and attempts to impose new al “shall not be conditioned upon any rate case conditions not required by the Act, nor sup- or earnings investigation by the Commission.” portive of its purpose. 17 O.S.Supp.2016, § 139.106(K)(1)(b). We are

442 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶29 Dobson contends that the Commission’s the Oklahoma Universal Service Fund.1 This is complete denial of funding disregards the very nothing more than an attempt to further disen- purpose of the OUSF to ensure the availability franchise rural Oklahoma from basic telephone of affordable telephone service to customers in services. rural and high cost areas where, absent the WINCHESTER, J., subsidies, their provision would be cost-prohibitive. We agree. The Commission majority’s 1. Section 139.107 provides, in part: disapproval of the policy behind the OUSF A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- versal Service Fund (OUSF) shall be funded in a competitively legislation has no bearing on the validity of an neutral manner not inconsistent with federal law by all contrib- applicant’s request for funding. We agree with uting providers. The funding from each contributing provider the dissenting Commissioner that it is our duty shall be based on the total intrastate retail Oklahoma Voice over Internet Protocol (VoIP) revenues and intrastate telecommunica- to uphold legislation as it is enacted. tions revenues, from both regulated and unregulated services, of the contributing provider, hereinafter referred to as assessed CONCLUSION revenues, as a percentage of all assessed revenues of the contributing providers, or such other assessment methodology not ¶30 Although the Commission is not bound inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communications by the Administrator’s recommendation, we Commission, FCC 10-185, released November 5, 2010, or such find that the record reflects ample evidence other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing modify the with which to support the Administrator’s contribution methodology for the OUSF and OLF, provided the determination. The Administrator, the ALJ, new methodology is not inconsistent with federal law. and the dissenting Commissioner, all agreed B. The Corporation Commission shall establish the OLF assessment and the OUSF assessment at a level sufficient to recover Dobson was entitled to reimbursement of the costs of administration and payments for OUSF and OLF increased costs it incurred as a result of ODOT’s requests for funding as provided for in the Oklahoma Telecom- munications Act of 1997. The administration of the OLF and mandate to relocate the telephone lines. The OUSF shall be provided by the Public Utility Division of the Commission’s wholesale denial of Dobson’s Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The request was in error. Accordingly, we vacate Administrator shall be an independent evaluator. The Adminis- the order of the Commission and remand the trator may enter into contracts to assist with the administration cause for further proceedings consistent with of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is this opinion. used in § 139.107 means “providers, including but not limited to providers of intrastate telecommunications, providers of intrastate tele- ORDER OF THE OKLAHOMA communications for a fee on a non-common-carrier basis, providers of CORPORATION COMMISSION VACATED wireless telephone service and providers of interconnected Voice over Internet Protocol (VoIP). Contributing providers shall contribute to the AND REMANDED. Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 O.S.Supp.2016, § 139.102 (8). CONCUR: GURICH, C.J., KAUGER, WIN- 2. Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including CHESTER, EDMONDSON, and DARBY, JJ. the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. CONCURRING SPECIALLY (by separate writ- 116,193, 116,194, 116,215, 116,421, and 116,422. ing): COMBS, J. 3. For purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its cus- NOT PARTICIPATING: COLBERT, AND REIF, tomers per the Act. 17 O.S.Supp.2016, § 139.106. 4. The Oklahoma Constitution, art. 9, Section 18 specifies that the JJ. Commission has: the power and authority and [is] charged with the duty of super- COMBS, J., concurring: vising, regulating and controlling all transportation and transmission companies doing business in this State, in all matters ¶1 I concur in the majority opinion but write relating to the performance of their public duties and their separately to emphasize the audacity of the charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end Commission’s blanket denial of Appellant’s, the Commission shall, from time to time, prescribe and enforce Dobson Telephone Company d/b/a/ McCloud against such companies, in the manner hereinafter authorized, such rates, charges, classifications of traffic, and rules and regu- Telephone Company, application. The legisla- lations, and shall require them to establish and maintain all such ture established a process by which a rural public service, facilities, and conveniences as may be reasonable and just, which said rates, charges, classifications, rules, regula- provider with limited resources is allowed to tions, and requirements, the Commission may, from time to time, be reimbursed from the Oklahoma Universal alter or amend. Service Fund (OUSF) when the rural provider 5. Subsection 139.106 (K) of the Act provides in toto: K. 1. Each request for OUSF funding by an eligible ILEC serving meets increased costs in fulfilling a mandate to less than seventy-five thousand access lines shall be premised provide reliable and affordable telephone ser- upon the occurrence of one or more of the following: a. in the event of a Federal Communications Commission order, vice to Oklahomans in remote and under- rule or policy, the effect of which is to decrease the federal uni- served areas. The Commission’s majority all versal service fund revenues of an eligible local exchange telecommunications service provider, the eligible local exchange but ignored the evidence presented ostensibly telecommunications service provider shall recover the decreases because of a fundamental disagreement with in revenues from the OUSF,

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 443 b. if, as a result of changes required by existing or future federal ORDER OF THE OKLAHOMA or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications service pro- CORPORATION COMMISSION vider experiences a reduction in revenues or an increase in costs, REVERSED AND REMANDED WITH it shall recover the revenue reductions or cost increases from the OUSF, the recovered amounts being limited to the net reduction INSTRUCTIONS. in revenues or cost increases, or c. if, as a result of changes made as required by existing or future William H. Hoch, Melanie Wilson Rughani, federal or state regulatory rules, orders, or policies or by federal Crowe & Dunlevy, P.C., Oklahoma City, Okla- or state law, an eligible local exchange telecommunications service provider experiences a reduction in costs, upon approval by homa, and Ron Commingdeer, Kendall W. Par- the Commission, the provider shall reduce the level of OUSF rish, Ron Commingdeer & Associates, Okla- funding it receives to a level sufficient to account for the reduction in costs. homa City, Oklahoma, for Appellant. 2. The receipt of OUSF funds for any of the changes referred to in this subsection shall not be conditioned upon any rate case or Michele Craig, Deputy General Counsel, Okla- earnings investigation by the Commission. The Commission homa Corporation Commission, Oklahoma shall, pursuant to subsection D of this section, approve the request for payment or adjustment of payment from the OUSF City, Oklahoma, for Appellee. based on a comparison of the total annual revenues received from the sources affected by the changes described in paragraph Nancy M. Thompson, Oklahoma City, Okla- 1 of this subsection by the requesting eligible local exchange homa, for Sprint Communications Company, telecommunications service provider during the most recent twelve (12) months preceding the request, and the reasonable L.P., Sprint Spectrum L.P. and Virgin Mobile calculation of total annual revenues or cost increases which will USA, L.P. be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service WINCHESTER, J., provider. 17 O.S.Supp.2016, § 139.106 (K). ¶1 The issue before this Court is whether the COMBS, J., concurring: Oklahoma Corporation Commission (“the Commission”) erroneously withheld funding 1. Appellant’s Brief in Chief at 1, January 26, 2018, states “Commis- to be provided to Dobson Telephone Company sioner Bob Anthony has repeatedly spoken out against the law [Okla- homa Universal Service Fund], even going so far as to ask the Legisla- d/b/a McLoud Telephone Company (“Dob- ture, in writing, to repeal it.” He stated the Fund is a bad program that son”) pursuant to the provisions of the Okla- should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 113,362. The Brief also states other members of the Commission have homa Universal Service Fund (“OUSF”), 17 expressed their displeasure with the law. Commissioner Murphy, how- O.S.Supp.2016, § 139.106. For the reasons set ever, dissented against the denial of the request for OUSF funding. forth herein, we find that Dobson is entitled to 2019 OK 25 the requested funding. DOBSON TELEPHONE COMPANY d/b/a STATUTORY BACKGROUND McLOUD TELEPHONE COMPANY, ¶2 In 1996, the U.S. Congress passed the fed- Appellant, v. STATE OF OKLAHOMA EX eral Telecommunications Act, 47 U.S.C. §§ 151 REL. OKLAHOMA CORPORATION et seq., in part, to promote a policy of universal COMMISSION, Appellee. service that would provide telecommunication Case No. 116,215. April 16, 2019 services to consumers all over the country, including “those in rural, insular, and high cost APPEAL FROM OKLAHOMA areas.” The Act seeks to provide access to ser- CORPORATION COMMISSION CAUSE vices that are “reasonably comparable to those NO. PUD 201600513 services provided in urban areas and that are Dana Murphy, Chairman; Todd Hiett, Vice available at rates that are reasonably compara- Chairman; and Bob Anthony, Commissioner. ble to rates charged for similar services in urban areas.” 47 U.S.C. § 254(b)(3). The Okla- ¶0 Dobson Telephone Company d/b/a Mc- homa Legislature followed suit with its own, Loud Telephone Company appeals the Okla- complementary Oklahoma Telecommunica- homa Corporation Commission’s denial of its tions Act of 1997 (the “Act”). 17 O.S.2011 and application for reimbursement from the Okla- Supp.2016, §§ 139.101 et seq. homa Universal Services Fund for expenses incurred in relocating facilities to accommo- ¶3 Under the state and federal Acts, certain date the construction of an Oklahoma Depart- telecommunications providers known as “car- ment of Transportation highway project. We riers of last resort” are required to provide, find that the Commission’s wholesale denial of without discrimination, telephone service to the reimbursement of any of the requested any customer requesting it. See 47 U.S.C. § 201; funds is in error. The Commission’s ruling is 17 O.S.2011 and Supp.2016, §§ 136 and 138. In hereby vacated and the matter is remanded addition, the provider must offer the requested with directions to approve the funding. services at reasonable and affordable rates in

444 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 line with those offered in more urban areas the federal universal service fund revenues of even if serving such customers would not be an eligible local exchange telecommunications economically sustainable. See 47 U.S.C. § 202; service provider,” that provider “shall recover 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the the decreases in revenues from the OUSF.” 17 legislation was to provide affordable and qual- O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, ity primary universal services to all despite the Subsection (K)(1)(b) provides that, if changes challenges of its accessibility. required by “federal or state regulatory rules, orders, or policies” reduce the revenues or ¶4 In an effort to defray the costs of deliver- increase the costs to an eligible local exchange ing phone service in rural, more remote areas, telecommunications service provider, then that the federal and state Acts each established a provider “shall recover the revenue reductions fund to help support eligible service providers. or cost increases from the OUSF.” 17 O.S.Supp. Within Oklahoma’s Act, the Legislature creat- 2016, § 139.106 (K)(1)(b). Under Subsection (K), ed the OUSF to help pay for reasonable invest- distributions from the OUSF “shall not be con- ments and expenses incurred by “eligible local ditioned upon any rate case or earnings inves- exchange telecommunications service provid- tigation by the Commission,” but, instead, ers” in providing primary universal services to should be paid in an amount equal to the in- customers in rural and high-cost areas “at rates crease in costs or reduction in revenues. 17 that are reasonable and affordable.” See 17 O.S. O.S.Supp.2016, § 139.106 (K)(2). Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible pro- ¶7 The Commissioners are free to approve or vider “may request funding from the OUSF as reject any determination by the OUSF Admin- necessary to maintain rates for primary univer- istrator. Under the rules, if no one objects to the sal services that are reasonable and afford- Administrator’s determination, an order able.” 17 O.S.Supp.2016, § 139.106 (G). The approving the funding request is issued by the OUSF is funded by a charge paid by certain Commission. OAC 165:59-3-62(j). If, however, a telecommunications carriers that have reve- party is not satisfied with the OUSF Adminis- nues as defined in Section 139.107. See 17 O.S. trator’s determination, the party may file a Supp.2016, §§ 139.106 (D) and 139.107.1 request for reconsideration by the Commission and the matter is set for hearing. OAC 165:59- ¶5 The Commission’s rules governing the 3-62(h) and (i). The Commission is the ultimate process for obtaining funding from the OUSF arbiter of the issues. See, Cameron v. Corporation are set out in OAC 165:59, Part 9 and are over- Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on seen by the Administrator of the Commission’s appeal from an oil and gas spacing order, the Public Utilities Division (“PUD”). Under the Court noted that regardless of whatever weight rules, upon receipt of a request for OUSF fund- the Commission may attach to an examiner’s ing, the OUSF Administrator reviews the report, “the Commission is the final arbiter of request and, if appropriate, reimburses the the issues”). See also, State ex rel. Cartwright v. provider consistent with the Act. OAC 165:59- Southwestern Bell Telephone Co., 1983 OK 40, ¶32, 7-1(d) and OAC 165:59-3-62(g). Requests for 662 P.2d 675, 681 (quoting Cameron). Subsection (G)’s “as necessary” distributions are evaluated through a detailed study and ¶8 The Commission, by a 2-1 vote, denied analysis of the “costs of providing primary reimbursement. Commissioner Dana Murphy, universal services” as well as potential reve- dissenting in each of these companion cases, nue. 17 O.S.Supp.2016, § 139.106 (H). The re- has stated that although she may not agree view process for claims submitted under Sub- with the need for the fund, she feels she must section (G) can be time-consuming and tedious, uphold the Legislature’s will as long as the often resulting in a significant delay in receipt fund exists. She dissented to the denial of of any funds.2 As a result, the Legislature pro- Medicine Park’s request stating that because vided a mechanism within the Act that would she didn’t believe the majority decision “com- allow providers in the rural areas quicker ports with the Oklahoma Legislature’s intent access to mandatory payments in certain, lim- to, in part, provide support to small, rural car- ited circumstances. See 17 O.S.Supp.2016, § 139. riers who have experienced increases in costs 106(K). as a result of changes required by governmental acts and with the Legislative policy to pre- ¶6 Subsection (K)(1)(a) mandates that, if “a serve and advance universal services.” Federal Communications Commission order, rule or policy” has the effect of “decreas[ing]

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 445 ¶9 In 2014, the Commission denied a request able for inspection to the Commission’s OUSF for OUSF funding from Dobson Telephone Administrator. This included information re- Company. See Dobson Telephone Co. v. State ex garding the costs incurred, invoices for engi- rel. Okla. Corporation Comm., 2017 OK CIV APP neering, equipment and supplies, and internal 16, 392 P.3d 295. Dobson sought reimburse- employee timesheets and wages. The Adminis- ment, under Subsection (K)1)(b) of the OUSF, trator reviewed Dobson’s application, inspect- for costs incurred to relocate its telephone ed the confidential information and ultimately facilities as required by the city of Oklahoma approved a reimbursement for Dobson in the City for a street-widening project. Because the amount of $21,794.27. It disallowed $330.61 request had been issued by the city, and not the due to a lack of supporting invoices. county commission or ODOT, the Commission ¶13 Various competitor telephone compa- narrowly interpreted the statute and conclud- nies, collectively known as Sprint for purposes ed that the Fund was not authorized to pay for of this appeal, objected and filed a Request for such relocation costs. Reconsideration on May 11, 2017. A hearing ¶10 The Court of Civil Appeals found that was held before an ALJ, where the evidence the Commission’s interpretation of the statu- was briefed and summarized, additional testi- tory language defeats the purpose of the Fund mony was taken, and the objecting parties and is contra to the legislative intent to defray were permitted to cross-examine witnesses – increased costs incurred by eligible telecom- including the Administrator – and present munications service providers resulting from evidence or argument to the contrary. The ALJ government action, no matter the originating upheld the Administrator’s recommendation, government entity. Dobson Telephone Co. v. State agreeing that Dobson was an eligible provider,3 ex rel. Okla. Corporation Comm., 2017 OK CIV APP that the facilities in question were used in the 16, ¶21, 392 P.3d 295, 305. The Commission’s provision of primary universal services, and Order was vacated and the matter was remand- that the expenses incurred by Dobson were as ed for further proceedings consistent with the a result of a state government mandate. Court of Civil Appeals opinion. Dobson Telephone ¶14 On June 15, 2017, the Commission voted, Co. v. State ex rel. Okla. Corporation Comm., 2017 2-1, to deny Dobson’s request. The two-person OK CIV APP 16, ¶23, 392 P.3d 295, 305. This majority found that Dobson’s request was not Court approved the case for publication. sufficiently supported by evidence as the con- FACTUAL BACKGROUND fidential information reviewed by its Adminis- trator was not included in the record before the ¶11 Dobson provides telecommunications Commission. The Commission further deter- services to customers in rural areas of Oklaho- mined that Dobson failed to prove that the ma, serving fewer than 75,000 access lines. On expenditures at issue were necessary to pro- October 14, 2011, the Oklahoma Department of vide primary universal services at a reasonable Transportation (ODOT) sent a letter to Dobson and affordable rate. Finally, the Commission ordering the relocation of certain telephone stated that it was without sufficient informa- lines within a public right-of-way of an ODOT, tion to determine whether the expenses were highway construction project along SH-102 incurred only for primary universal services. and US-62 in Lincoln County. Dobson relocated its facilities as requested for a total cost of ¶15 Dobson appealed, requesting that the $231,618.67. After accounting for two separate Commission’s denial be reversed. We retained reimbursement payments from ODOT in the the matter and made it a companion to Case amounts of $13,566.72 and $185,847.86, and a Nos. 115,453, 116,193, 116,194, 116,214, 116,421 $10,079.21 reduction for betterment, Dobson and 116,422. filed an application with the Commission under STANDARD OF REVIEW the Subsection (K)(1)(b) of the Act for reimbursement of $22,124.88 from the OUSF. Dobson filed ¶16 This Court’s review of decisions of the its Application on a form created by the Com- Commission is governed by the Oklahoma mission and followed the same steps it, and Constitution, article 9, § 20, which states as fol- other companies like it, has always undertaken lows, in relevant part: when seeking an OUSF refund. The Supreme Court’s review of appealable ¶12 Dobson made detailed, confidential orders of the Corporation Commission information regarding the project’s costs avail- shall be judicial only, and in all appeals in-

446 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 volving an asserted violation of any right future federal or state regulatory rules, orders, of the parties under the Constitution of the or policies or by federal or state law,” and such United States or the Constitution of the changes cause an eligible provider to experi- State of Oklahoma, the Court shall exercise ence an increase in costs, the provider “shall its own independent judgment as to both recover” such “cost increases from the OUSF.” the law and the facts. In all other appeals 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis from orders of the Corporation Commis- added). We have interpreted the use of the sion the review by the Supreme Court shall word “shall” by the Legislature “as a legisla- not extend further than to determine tive mandate equivalent to the term ‘must’, whether the Commission has regularly requiring interpretation as a command.” Minie pursued its authority, and whether the v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. findings and conclusions of the Commis- Thus, under the express provisions of the Act, sion are sustained by the law and substan- Dobson was entitled to receive reimbursement tial evidence. from the OUSF for these cost increases. Okla. Const. art. 9, § 20. ¶20 In support of its decision to deny Dob- ¶17 The issue in this appeal concerns the son’s requested funding, the Commission’s Commission’s legal interpretation of the OUSF majority found that Dobson failed to produce statute and the alleged arbitrary and capricious sufficient evidence into the record. Despite denial of funding in violation of the Oklahoma acknowledging that its “Administrator was Constitution. Constitutional implications as afforded, and took advantage of, the opportu- well as statutory interpretation dictate our de nity to perform a ‘review of the Application, novo review of this case. Cox Oklahoma Telecom, contractor’s invoices, internal invoices, con- LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 struction drawings, pre-engineering plans, OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de work orders, plans and maps, timesheets, novo standard of review, the Court has plenary, reimbursement checks, contracts, responses to independent and non-deferential authority to data requests, relevant Oklahoma Statutes,’ its determine whether the trial tribunal erred in its own administrative rules regarding the OUSF,” legal rulings. Cox Oklahoma Telecom, LLC v. State the Commission ignored both the Administra- ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, tor’s and the ALJ’s findings that the documents n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- provided by Dobson supported its request for rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d funding. The Commission complained that it 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 was limited to a mathematical review as many P.3d 841, 845. of the documents relied on, and reviewed by, the Administrator occurred on-site at Dobson’s ¶18 This Court has found that the Commis- place of business and were not made publicly sion’s power “must be exercised only within available due to the confidential nature of the the confines of its limited jurisdiction as pro- documents. vided by the Oklahoma Constitution” and state statute.4 Pub. Serv. Co. v. State ex rel. Corp. ¶21 Dobson points out that up until the filing Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. of these companion cases, the Commission had The Commission’s “power to regulate is not for years previously accepted the Administra- unfettered.” Pub. Serv. Co. v. State ex rel. Corp. tor’s review of confidential documents on site. Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. Dobson maintains that they should not be penalized for the Commission’s option not to DISCUSSION take advantage of the opportunity to review, or ¶19 Under the OUSF, eligible telecommuni- even request to review, any of the confidential- cations providers serving fewer than 75,000 ly-redacted documents. Dobson also cites cases access lines are entitled to recover increases in supporting the proposition that long-standing costs as a result of changes to facilities that are actions or interpretations by an agency will not required by state or federal law. 17 O.S.Supp. be idly cast aside without proper notice to 2016, § 139.106(K).5 It is undisputed that Dob- affected parties. See, e.g., Oral Roberts Univ. v. son is an eligible provider under the Act. It is Okla. Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d further undisputed that Dobson was required 1013, 1015 (Courts are reluctant to overturn by ODOT to relocate its lines, causing it to long standing construction where parties hav- incur an increase in costs. The Act mandates ing great interest in such construction will be that where changes are “required by existing or prejudiced by its change); Big Horn Coal Co. v.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 447 Temple, 793 F.2d 1165, 1169 (10th Cir. 1986) failing to publicly submit its confidential materi- (“Agencies are under an obligation to follow als when documents of such a nature have not their own regulations, procedures, and prece- been typically filed with the Commission, nor dents, or provide a rational explanation for required. Such flawed reasoning should not their departures.”). support a denial of the application herein. ¶22 The Administrator agreed with Dobson ¶25 Additionally, for the first time in these that the standard procedure followed by the companion cases, the Commission interpreted Commission had always been for an applicant Subsection (K) to impose a finding that Dob- to fill out a Commission-approved form and son’s rates for primary universal services are make confidential information supporting its reasonable and affordable pursuant to Subsec- application available for the Commission to tion (B) and that the requested funding is nec- review on-site. He offered that this practice essary to maintain such reasonable and afford- occurred not only in OUSF cases, but in numer- able rates. As mentioned, supra, § 139.106(K)(1) ous other Commission matters. We find the (b) plainly provides that where a provider Commission was not entitled to discount Dob- incurs increased costs due to a state law, order son’s entire application merely because the or policy, the provider SHALL recover the cost documents the Administrator inspected and increase from the OUSF. See 17 O.S.Supp.2016, relied upon for his approval were not publicly § 139.106(K)(1)(b). There is no mention of a filed of record before the Commission. condition that the applicant must prove that its ¶23 Dobson argues, and the Commission rates are reasonable and affordable nor is there does not dispute, that the Commission’s own a requirement to find the reimbursement nec- rules and long-standing practices encouraged essary to maintain such rates. To the contrary, § applicants to retain confidential supporting 139.106(K)(2) specifically states that an applica- materials on site, making such materials avail- tion’s approval “shall not be conditioned upon able for review and inspection as needed to any rate case or earnings investigation by the support an application. In fact, Commission Commission.” 17 O.S.Supp.2016, § 139.106(K) rule, OAC 165:59-3-72(d), specifically contem- (1)(b). We are not inclined to add requirements plates that “documentation not contained in to a statute that the Legislature chose not to the public record and not filed in the cause” impose. See Pentagon Acad., Inc. v. Indep. Sch. may nevertheless be “relied upon by the OUSF Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d Administrator in approving or denying an 587, 591 (“It is not the function of the courts to application.” The Administrator disclosed that add new provisions which the legislature chose the Commission does not even have proce- to withhold.”); Minie v. Hudson, 1997 OK 26, dures in place that would allow it to handle ¶12, 934 P.2d 1082, 1087 (“This Court may not, “the responsibility or liability” of receiving through the use of statutory construction, such confidential materials. change, modify or amend the expressed intent of the Legislature.”). ¶24 Dobson filed an application, completed by using a Commission-issued form, which ¶26 Dobson contends that the Commission’s certified that as a result of an ODOT mandate complete denial of funding disregards the very to relocate its facilities it incurred an increase in purpose of the OUSF to ensure the availability costs in the amount of $22,124.88, after sub- of affordable telephone service to customers in tracting the ODOT reimbursements. The com- rural and high cost areas where, absent the pany presented the testimony of a company subsidies, their provision would be cost-pro- witness who reviewed all of Dobson’s perti- hibitive. We agree. The Commission ignores nent, confidential materials, and who con- the plain language of the Act and attempts to firmed the validity of the requested amounts. impose new conditions not required by the The Administrator also reviewed the confiden- Act, nor supportive of its purpose. Generally, tial materials and agreed that Dobson’s applica- applicants who filed under Subsection (K) tion and documentation supported the relief could expect a quick reimbursement after ap- requested, as nominally modified by the Admin- proval by the Administrator that the applica- istrator to a lump sum of $21,794.27. The ALJ tion had followed the statutory process. The agreed with the Administrator that Dobson’s Commission’s in-depth review of a Subsection application and offered materials supported (K) application would only arise if an outside approval thereof. Despite these findings, the entity filed a Request for Reconsideration of Commission unexpectedly faulted Dobson for the Administrator’s determination. Where no

448 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 such reconsideration request is filed, the ORDER OF THE OKLAHOMA Administrator’s approval, after a proper statu- CORPORATION COMMISSION VACATED tory review, would typically trigger a Commis- AND REMANDED. sion order granting the applicant’s request. CONCUR: GURICH, C.J., KAUGER, WIN- ¶27 The Commission also criticized the fact CHESTER, EDMONDSON, and DARBY, JJ. that the relocated lines were used for services CONCURRING SPECIALLY (by separate writ- not related to primary universal services. The ing): COMBS, J. Commission maintains that Dobson should have allocated the cost of the project between NOT PARTICIPATING: COLBERT, AND REIF, such services. Dobson argues that a request for JJ. reimbursement under Subsection (K) does not COMBS, J., concurring: require any such cost allocation nor has the Commission ever required one in previous ¶1 I concur in the majority opinion but write Subsection (K) matters. separately to emphasize the audacity of the Commission’s blanket denial of Appellant’s, ¶28 Subsection (K) plainly provides that Dobson Telephone Company d/b/a McCloud where a provider incurs cost increases due to a Telephone Company, application. The legisla- state law or order, the provider SHALL recover ture established a process by which a rural the cost increase from the OUSF. 17 O.S.Supp. provider with limited resources is allowed to 2016, § 139.106(K)(1)(b). There is no mention of be reimbursed from the Oklahoma Universal a requirement for cost allocation and we are Service Fund (OUSF) when the rural provider not inclined to impose such requirement now. meets increased costs in fulfilling a mandate to The Commission again ignores the plain lan- provide reliable and affordable telephone ser- guage of the Act and attempts to impose new vice to Oklahomans in remote and under- conditions not required by the Act, nor sup- served areas. The Commission’s majority all portive of its purpose. but ignored the evidence presented ostensibly ¶29 Dobson contends that the Commission’s because of a fundamental disagreement with complete denial of funding disregards the very the Oklahoma Universal Service Fund.1 This is purpose of the OUSF to ensure the availability nothing more than an attempt to further disen- of affordable telephone service to customers in franchise rural Oklahoma from basic telephone rural and high cost areas where, absent the services. subsidies, their provision would be cost-pro- WINCHESTER, J., hibitive. We agree. The Commission majority’s disapproval of the policy behind the OUSF 1. Section 139.107 provides, in part: legislation has no bearing on the validity of an A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- versal Service Fund (OUSF) shall be funded in a competitively applicant’s request for funding. We agree with neutral manner not inconsistent with federal law by all contrib- the dissenting Commissioner that it is our duty uting providers. The funding from each contributing provider shall be based on the total intrastate retail Oklahoma Voice over to uphold legislation as it is enacted. Internet Protocol (VoIP) revenues and intrastate telecommunications revenues, from both regulated and unregulated services, of CONCLUSION the contributing provider, hereinafter referred to as assessed revenues, as a percentage of all assessed revenues of the contrib- ¶30 Although the Commission is not bound uting providers, or such other assessment methodology not by the Administrator’s recommendation, we inconsistent with federal law. VoIP services shall be assessed only as provided for in the decision of the Federal Communica- find that the record reflects ample evidence tions Commission, FCC 10-185, released November 5, 2010, or with which to support the Administrator’s such other assessment methodology that is not inconsistent with federal law. The Commission may after notice and hearing determination. The Administrator, the ALJ, modify the contribution methodology for the OUSF and OLF, and the dissenting Commissioner, all agreed provided the new methodology is not inconsistent with federal law. Dobson was entitled to reimbursement of the B. The Corporation Commission shall establish the OLF assess- increased costs it incurred as a result of ODOT’s ment and the OUSF assessment at a level sufficient to recover mandate to relocate the telephone lines. The costs of administration and payments for OUSF and OLF requests for funding as provided for in the Oklahoma Telecom- Commission’s wholesale denial of Dobson’s munications Act of 1997. The administration of the OLF and request was in error. Accordingly, we vacate OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the the order of the Commission and remand the Administrator as defined in Section 139.102 of this title. The cause for further proceedings consistent with Administrator shall be an independent evaluator. The Adminis- trator may enter into contracts to assist with the administration this opinion. of the OLF and OUSF. 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is used in § 139.107 means “providers, including but not limited to pro-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 449 viders of intrastate telecommunications, providers of intrastate tele- 2019 OK 26 communications for a fee on a non-common-carrier basis, providers of wireless telephone service and providers of interconnected Voice over DOBSON TELEPHONE COMPANY, Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 Applicant/Appellant, v. STATE OF O.S.Supp.2016, § 139.102 (8). OKLAHOMA EX REL. OKLAHOMA 2. Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including CORPORATION COMMISSION, the instant matter, involve requests brought under Subsection (K), set Respondent/Appellee. forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,421, and 116,422. Case No. 116,421. April 16, 2019 3. For purposes of this appeal, it is not disputed that Dobson is an eligible local exchange provider providing primary services to its cus- APPEAL FROM OKLAHOMA tomers. CORPORATION COMMISSION CAUSE 4. The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: NO. PUD 201700040 the power and authority and [is] charged with the duty of super- vising, regulating and controlling all transportation and trans- Dana Murphy, Chairman; Todd Hiett, Vice mission companies doing business in this State, in all matters Chairman; and Bob Anthony, Commissioner. relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust ¶0 Dobson Telephone Company appeals the discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce Oklahoma Corporation Commission’s denial against such companies, in the manner hereinafter authorized, of its application for reimbursement from the such rates, charges, classifications of traffic, and rules and regu- Oklahoma Universal Services Fund for expens- lations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable es incurred when it was ordered by the State and just, which said rates, charges, classifications, rules, regula- Department of Transportation to relocate its tions, and requirements, the Commission may, from time to time, alter or amend. telephone lines within the public right-of-way 5. Subsection 139.106(K) of the Act provides in toto: of a State construction project. We find that the K. 1. Each request for OUSF funding by an eligible ILEC serving less than seventy-five thousand access lines shall be premised Commission’s wholesale denial of the reim- upon the occurrence of one or more of the following: bursement of the requested funds is in error. a. in the event of a Federal Communications Commission order, The Commission’s ruling is hereby vacated rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange tele- and the matter is remanded with directions to communications service provider, the eligible local exchange approve the requested funding. telecommunications service provider shall recover the decreases in revenues from the OUSF, b. if, as a result of changes required by existing or future federal ORDER OF THE OKLAHOMA or state regulatory rules, orders, or policies or by federal or state CORPORATION COMMISSION law, an eligible local exchange telecommunications service pro- REVERSED AND REMANDED WITH vider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the INSTRUCTIONS. OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, or William H. Hoch, Melanie Wilson Rughani, c. if, as a result of changes made as required by existing or future Crowe & Dunlevy, P.C., Oklahoma City, Okla- federal or state regulatory rules, orders, or policies or by federal or state law, an eligible local exchange telecommunications ser- homa, and Ron Commingdeer, Kendall W. vice provider experiences a reduction in costs, upon approval by Parrish, Ron Commingdeer & Associates, the Commission, the provider shall reduce the level of OUSF funding it receives to a level sufficient to account for the reduc- Oklahoma City, Oklahoma, for Appellant. tion in costs. 2. The receipt of OUSF funds for any of the changes referred to Michele Craig, Deputy General Counsel, Okla- in this subsection shall not be conditioned upon any rate case or homa Corporation Commission, Oklahoma earnings investigation by the Commission. The Commission shall, pursuant to subsection D of this section, approve the City, Oklahoma, for Appellee. request for payment or adjustment of payment from the OUSF based on a comparison of the total annual revenues received Nancy M. Thompson, Oklahoma City, Okla- from the sources affected by the changes described in paragraph homa, for Sprint Communications Company, 1 of this subsection by the requesting eligible local exchange telecommunications service provider during the most recent L.P., Sprint Spectrum L.P. and Virgin Mobile twelve (12) months preceding the request, and the reasonable USA, L.P. calculation of total annual revenues or cost increases which will be experienced after the changes are implemented by the requesting eligible local exchange telecommunications service WINCHESTER, J., provider. 17 O.S.Supp.2016, § 139.106(K). ¶1 The issue before this Court is whether the Oklahoma Corporation Commission (“the COMBS, J., concurring: Commission”) erroneously withheld funding to be provided to Dobson Telephone Company 1. Appellant’s Brief in Chief at 1, January 26, 2018, states “Commis- sioner Bob Anthony has repeatedly spoken out against the law [Okla- (“Dobson”) pursuant to the provisions of the homa Universal Service Fund], even going so far as to ask the Legisla- Oklahoma Universal Service Fund (“OUSF”), ture, in writing, to repeal it.” He stated the Fund is a bad program that should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. 17 O.S.Supp.2016, § 139.106. For the reasons set 113,362. The Brief also states other members of the Commission have forth herein, we find that Dobson is entitled to expressed their displeasure with the law. Commissioner Murphy, however, dissented against the denial of the request for OUSF funding. the requested funding.

450 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 STATUTORY BACKGROUND ¶5 The Commission’s rules governing the process for obtaining funding from the OUSF ¶2 In 1996, the U.S. Congress passed the fed- are set out in OAC 165:59, Part 9 and are over- eral Telecommunications Act, 47 U.S.C. §§ 151 seen by the Administrator of the Commission’s et seq., in part, to promote a policy of universal Public Utilities Division (“PUD”). Under the service that would provide telecommunication rules, upon receipt of a request for OUSF fund- services to consumers all over the country, ing, the OUSF Administrator reviews the including “those in rural, insular, and high cost request and, if appropriate, reimburses the areas.” The Act seeks to provide access to ser- provider consistent with the Act. OAC 165:59- vices that are “reasonably comparable to those 7-1(d) and OAC 165:59-3-62(g). Requests for services provided in urban areas and that are Subsection (G)’s “as necessary” distributions available at rates that are reasonably compara- are evaluated through a detailed study and ble to rates charged for similar services in analysis of the “costs of providing primary urban areas.” 47 U.S.C. § 254(b)(3). The Okla- universal services” as well as potential reve- homa Legislature followed suit with its own, nue. 17 O.S.Supp.2016, § 139.106 (H). The re- complementary Oklahoma Telecommunica- view process for claims submitted under Sub- tions Act of 1997 (the “Act”). 17 O.S.2011 and section (G) can be time-consuming and tedious, Supp.2016, §§ 139.101 et seq. often resulting in a significant delay in receipt ¶3 Under the state and federal Acts, certain of any funds.2 As a result, the Legislature pro- telecommunications providers known as “car- vided a mechanism within the Act that would riers of last resort” are required to provide, allow providers in the rural areas quicker without discrimination, telephone service to access to mandatory payments in certain, lim- any customer requesting it. See 47 U.S.C. § 201; ited circumstances. See 17 O.S.Supp.2016, § 17 O.S.2011 and Supp.2016, §§ 136 and 138. In 139.106(K). addition, the provider must offer the requested ¶6 Subsection (K)(1)(a) mandates that, if “a services at reasonable and affordable rates in Federal Communications Commission order, line with those offered in more urban areas rule or policy” has the effect of “decreas[ing] even if serving such customers would not be the federal universal service fund revenues of economically sustainable. See 47 U.S.C. § 202; an eligible local exchange telecommunications 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the service provider,” that provider “shall recover legislation was to provide affordable and qual- the decreases in revenues from the OUSF.” 17 ity primary universal services to all despite the O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, challenges of its accessibility. Subsection (K)(1)(b) provides that, if changes ¶4 In an effort to defray the costs of deliver- required by “federal or state regulatory rules, ing phone service in rural, more remote areas, orders, or policies” reduce the revenues or the federal and state Acts each established a increase the costs to an eligible local exchange fund to help support eligible service providers. telecommunications service provider, then that Within Oklahoma’s Act, the Legislature creat- provider “shall recover the revenue reductions ed the OUSF to help pay for reasonable invest- or cost increases from the OUSF.” 17 O.S.Supp. ments and expenses incurred by “eligible local 2016, § 139.106 (K)(1)(b). Under Subsection (K), exchange telecommunications service provid- distributions from the OUSF “shall not be con- ers” in providing primary universal services to ditioned upon any rate case or earnings inves- customers in rural and high-cost areas “at rates tigation by the Commission,” but, instead, that are reasonable and affordable.” See 17 O.S. should be paid in an amount equal to the Supp.2016, § 139.106 (A), (B), and (G). The increase in costs or reduction in revenues. 17 OUSF generally provides that an eligible pro- O.S.Supp.2016, § 139.106 (K)(2). vider “may request funding from the OUSF as ¶7 The Commissioners are free to approve or necessary to maintain rates for primary univer- reject any determination by the OUSF Admin- sal services that are reasonable and afford- istrator. Under the rules, if no one objects to the able.” 17 O.S.Supp.2016, § 139.106 (G). The Administrator’s determination, an order ap- OUSF is funded by a charge paid by certain proving the funding request is issued by the telecommunications carriers that have reve- Commission. OAC 165:59-3-62(j). If, however, a nues as defined in Section 139.107. See 17 party is not satisfied with the OUSF Adminis- O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 trator’s determination, the party may file a request for reconsideration by the Commission

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 451 and the matter is set for hearing. OAC 165:59- OK CIV APP 16, ¶23, 392 P.3d 295, 305. This 3-62(h) and (i). The Commission is the ultimate Court approved the case for publication. arbiter of the issues. See, Cameron v. Corporation FACTUAL BACKGROUND Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the ¶11 Dobson provides telecommunications Court noted that regardless of whatever weight services to customers in rural areas of Oklaho- the Commission may attach to an examiner’s ma, serving fewer than 75,000 access lines. On report, “the Commission is the final arbiter of May 3, 2016, the Oklahoma Department of the issues”). See also, State ex rel. Cartwright v. Transportation (ODOT) sent a letter to Dobson Southwestern Bell Telephone Co., 1983 OK 40, ordering the relocation of certain telephone ¶32, 662 P.2d 675, 681 (quoting Cameron). lines within a public right-of-way of an ODOT, highway construction project on US-283, in ¶8 The Commission, by a 2-1 vote, denied Roger Mills County. Dobson moved the lines reimbursement. Commissioner Dana Murphy, as requested for a sum total of $55,032.54. Dob- dissenting in each of these companion cases, son filed an application with the Commission has stated that although she may not agree under the Act’s subsection (K)(1)(b) for reim- with the need for the fund, she feels she must bursement of this amount from the OUSF. Dob- uphold the Legislature’s will as long as the son filed its Application on a form created by fund exists. She dissented to the denial of the Commission and followed the same steps Medicine Park’s request stating that because it, and other companies like it, has always she didn’t believe the majority decision “com- undertaken when seeking an OUSF refund. ports with the Oklahoma Legislature’s intent to, in part, provide support to small, rural car- ¶12 Dobson made detailed, confidential riers who have experienced increases in costs information regarding the project’s costs avail- as a result of changes required by governmen- able for inspection to the Commission’s OUSF tal acts and with the Legislative policy to pre- Administrator. This included information re- serve and advance universal services.” garding the costs incurred, invoices for engineering, equipment and supplies, and internal ¶9 In 2014, the Commission denied a request employee timesheets and wages. The Adminis- for OUSF funding from Dobson Telephone trator reviewed Dobson’s application, inspect- Company. See Dobson Telephone Co. v. State ex ed the confidential information and ultimately rel. Okla. Corporation Comm., 2017 OK CIV APP approved a reimbursement for Dobson in the 16, 392 P.3d 295. Dobson sought reimburse- amount of $54,766.71. It disallowed $265.83 ment, under Subsection (K)1)(b) of the OUSF, due to a lack of supporting invoices and/or for costs incurred to relocate its telephone accounting in Dobson’s documents. facilities as required by the city of Oklahoma City for a street-widening project. Because the ¶13 Various competitor telephone compa- request had been issued by the city, and not the nies, collectively known as Sprint for purposes county commission or ODOT, the Commission of this appeal, objected and filed a Request for narrowly interpreted the statute and conclud- Reconsideration on May 11, 2017. A hearing ed that the Fund was not authorized to pay for was held before an ALJ, where the evidence such relocation costs. was briefed and summarized, additional testimony was taken, and the objecting parties ¶10 The Court of Civil Appeals found that were permitted to cross-examine witnesses – the Commission’s interpretation of the statu- including the Administrator – and present tory language defeats the purpose of the Fund evidence or argument to the contrary. The ALJ and is contra to the legislative intent to defray agreed that Dobson was an eligible provider,3 increased costs incurred by eligible telecom- that the facilities in question were used in the munications service providers resulting from provision of primary universal services, and government action, no matter the originating that the expenses incurred by Dobson were as government entity. Dobson Telephone Co. v. State a result of a state government mandate. Despite ex rel. Okla. Corporation Comm., 2017 OK CIV APP the Administrator’s recommendation, and her 16, ¶21, 392 P.3d 295, 305. The Commission’s apparent agreement therewith, the ALJ indi- Order was vacated and the matter was remand- cated she was bound by recent Commission ed for further proceedings consistent with the rulings in similar cases, made companions Court of Civil Appeals opinion. Dobson Telephone hereto, and recommended a denial of Dobson’s Co. v. State ex rel. Okla. Corporation Comm., 2017 request.

452 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 ¶14 Thereafter, the Commission voted, 2-1, to determine whether the trial tribunal erred in its deny Dobson’s request. The two-person major- legal rulings. Cox Oklahoma Telecom, LLC v. State ity found that Dobson’s request was not suffi- ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, ciently supported by evidence as the confiden- n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- tial information reviewed by its Administrator rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d was not included in the record before the Com- 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 mission. The Commission further determined P.3d 841, 845. that Dobson failed to prove that the expendi- ¶18 This Court has found that the Commis- tures at issue were necessary to provide pri- sion’s power “must be exercised only within mary universal services at a reasonable and the confines of its limited jurisdiction as pro- affordable rate. Finally, the Commission stated vided by the Oklahoma Constitution” and that it was without sufficient information to state statute.4 Pub. Serv. Co. v. State ex rel. Corp. determine whether the expenses were incurred Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. only for primary universal services. The Commission’s “power to regulate is not ¶15 Dobson appealed, requesting that the unfettered.” Pub. Serv. Co. v. State ex rel. Corp. Commission’s denial be reversed. We retained Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. the matter and made it a companion to Case DISCUSSION Nos. 115,453, 116,193, 116,194, 116,214, 116,215, and 116,422. ¶19 Under the OUSF, eligible telecommunications providers serving fewer than 75,000 STANDARD OF REVIEW access lines are entitled to recover increases in ¶16 This Court’s review of decisions of the costs as a result of changes to facilities that are Commission is governed by the Oklahoma required by state or federal law. 17 O.S.Supp. Constitution, article 9, § 20, which states as fol- 2016, § 139.106(K).5 It is undisputed that Dob- lows, in relevant part: son is an eligible provider under the Act. It is further undisputed that Dobson was required The Supreme Court’s review of appealable by ODOT to relocate its lines, causing it to orders of the Corporation Commission incur an increase in costs. The Act mandates shall be judicial only, and in all appeals that where changes are “required by existing or involving an asserted violation of any right future federal or state regulatory rules, orders, of the parties under the Constitution of the or policies or by federal or state law,” and such United States or the Constitution of the changes cause an eligible provider to experi- State of Oklahoma, the Court shall exercise ence an increase in costs, the provider “shall its own independent judgment as to both recover” such “cost increases from the OUSF.” the law and the facts. In all other appeals 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis from orders of the Corporation Commis- added). We have interpreted the use of the sion the review by the Supreme Court shall word “shall” by the Legislature “as a legisla- not extend further than to determine tive mandate equivalent to the term ‘must’, whether the Commission has regularly requiring interpretation as a command.” Minie pursued its authority, and whether the v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. findings and conclusions of the Commis- Thus, under the express provisions of the Act, sion are sustained by the law and substan- Dobson was entitled to receive reimbursement tial evidence. from the OUSF for these cost increases. Okla. Const. art. 9, § 20. ¶20 In support of its decision to deny Dob- ¶17 The issue in this appeal concerns the son’s requested funding, the Commission’s Commission’s legal interpretation of the OUSF majority found that Dobson failed to produce statute and the alleged arbitrary and capricious sufficient evidence into the record. Despite denial of funding in violation of the Oklahoma acknowledging that its “Administrator was Constitution. Constitutional implications as afforded, and took advantage of, the opportu- well as statutory interpretation dictate our de nity to perform a ‘review of the Application, novo review of this case. Cox Oklahoma Telecom, contractor’s invoices, internal invoices, con- LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 struction drawings, pre-engineering plans, OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de work orders, plans and maps, timesheets, novo standard of review, the Court has plenary, reimbursement checks, contracts, responses to independent and non-deferential authority to data requests, relevant Oklahoma Statutes,’ its

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 453 own administrative rules regarding the OUSF,” plates that “documentation not contained in the Commission ignored the Administrator’s the public record and not filed in the cause” finding that the documents provided by Dob- may nevertheless be “relied upon by the OUSF son supported its request for funding.6 The Administrator in approving or denying an Commission complained that it was limited to a application.” The Administrator disclosed that mathematical review as many of the documents the Commission does not even have proce- relied on, and reviewed by, the Administrator dures in place that would allow it to handle occurred on-site at Dobson’s place of business “the responsibility or liability” of receiving and were not made publicly available due to the such confidential materials. confidential nature of the documents. ¶24 Dobson filed an application, completed ¶21 Dobson points out that up until the filing by using a Commission-issued form, which of these companion cases, the Commission had certified that as a result of an ODOT mandate for years previously accepted the Administra- to relocate its facilities it incurred an increase in tor’s review of confidential documents on site. costs in the amount of $55,032.54. The compa- Dobson maintains that they should not be ny presented the testimony of a company wit- penalized for the Commission’s option not to ness who reviewed all of Dobson’s pertinent, take advantage of the opportunity to review, or confidential materials, and who confirmed the even request to review, any of the confidential- validity of the requested amounts. The Admin- ly-redacted documents. Dobson also cites cases istrator also reviewed the confidential materi- supporting the proposition that long-standing als and agreed that Dobson’s application and actions or interpretations by an agency will not documentation supported the relief requested, be idly cast aside without proper notice to as nominally modified by the Administrator to affected parties. See, e.g., Oral Roberts Univ. v. a lump sum of $54,766.71. The ALJ – although Okla. Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d declining to recommend approval – likewise 1013, 1015 (Courts are reluctant to overturn agreed with both the independent witness and long standing construction where parties hav- the Administrator that Dobson’s application and ing great interest in such construction will be offered materials supported approval thereof. prejudiced by its change); Big Horn Coal Co. v. Despite these findings, the Commission unex- Temple, 793 F.2d 1165, 1169 (10th Cir. 1986) pectedly faulted Dobson for failing to publicly (“Agencies are under an obligation to follow submit its confidential materials when docu- their own regulations, procedures, and prece- ments of such a nature have not been typically dents, or provide a rational explanation for filed with the Commission, nor required. Such their departures.”). flawed reasoning should not support a denial of ¶22 The Administrator agreed with Dobson the application herein. that the standard procedure followed by the ¶25 Additionally, for the first time in these Commission had always been for an applicant companion cases, the Commission interpreted to fill out a Commission-approved form and Subsection (K) to impose a finding that Dobson’s make confidential information supporting its rates for primary universal services are reason- application available for the Commission to able and affordable pursuant to Subsection (B) review on-site. He offered that this practice and that the requested funding is necessary to occurred not only in OUSF cases, but in numer- maintain such reasonable and affordable rates. ous other Commission matters. We find the As mentioned, supra, § 139.106(K)(1)(b) plainly Commission was not entitled to discount Dob- provides that where a provider incurs increased son’s entire application merely because the costs due to a state law, order or policy, the pro- documents the Administrator inspected and vider SHALL recover the cost increase from the relied upon for his approval were not publicly OUSF. See 17 O.S.Supp.2016, § 139.106(K)(1)(b). filed of record before the Commission. There is no mention of a condition that the ¶23 Dobson argues, and the Commission applicant must prove that its rates are reason- does not dispute, that the Commission’s own able and affordable nor is there a requirement rules and long-standing practices encouraged to find the reimbursement necessary to main- applicants to retain its confidential supporting tain such rates. To the contrary, § 139.106(K)(2) materials on site, making such materials avail- specifically states that an application’s approv- able for review and inspection as needed to al “shall not be conditioned upon any rate case support an application. In fact, Commission or earnings investigation by the Commission.” rule, OAC 165:59-3-72(d), specifically contem- 17 O.S.Supp.2016, § 139.106(K)(1)(b). We are

454 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 not inclined to add requirements to a statute ¶29 Dobson contends that the Commission’s that the Legislature chose not to impose. See Pen- complete denial of funding disregards the very tagon Acad., Inc. v. Indep. Sch. Dist. No. 1 of Tulsa purpose of the OUSF to ensure the availability Cty., 2003 OK 98, ¶19, 82 P.3d 587, 591 (“It is not of affordable telephone service to customers in the function of the courts to add new provisions rural and high cost areas where, absent the which the legislature chose to withhold.”); Minie subsidies, their provision would be cost-pro- v. Hudson, 1997 OK 26, ¶12, 934 P.2d 1082, 1087 hibitive. We agree. The Commission majority’s (“This Court may not, through the use of statu- disapproval of the policy behind the OUSF tory construction, change, modify or amend the legislation has no bearing on the validity of an expressed intent of the Legislature.”). applicant’s request for funding. We agree with the dissenting Commissioner that it is our duty ¶26 Dobson contends that the Commission’s to uphold legislation as it is enacted. complete denial of funding disregards the very purpose of the OUSF to ensure the availability CONCLUSION of affordable telephone service to customers in ¶30 Although the Commission is not bound rural and high cost areas where, absent the by the Administrator’s recommendation, we subsidies, their provision would be cost-pro- find that the record reflects ample evidence hibitive. We agree. The Commission ignores with which to support the Administrator’s the plain language of the Act and attempts to determination. The Administrator, as well as impose new conditions not required by the the dissenting Commissioner, both agreed Act, nor supportive of its purpose. Generally, Dobson was entitled to reimbursement of the applicants who filed under Subsection (K) increased costs it incurred as a result of ODOT’s could expect a quick reimbursement after mandate to relocate the telephone lines. The approval by the Administrator that the appli- Commission’s wholesale denial of Dobson’s cation had followed the statutory process. The request was in error. Accordingly, we vacate Commission’s in-depth review of a Subsection the order of the Commission and remand the (K) application would only arise if an outside cause for further proceedings consistent with entity filed a Request for Reconsideration of this opinion. the Administrator’s determination. Where no such reconsideration request is filed, the ORDER OF THE OKLAHOMA Administrator’s approval, after a proper statu- CORPORATION COMMISSION VACATED tory review, would typically trigger a Commis- AND REMANDED. sion order granting the applicant’s request. CONCUR: GURICH, C.J., KAUGER, WIN- ¶27 The Commission also criticized the fact CHESTER, EDMONDSON, and DARBY, JJ. that the relocated lines were used for services not related to primary universal services. The CONCURRING SPECIALLY (by separate writ- Commission maintains that Dobson should ing): COMBS, J. have allocated the cost of the project between NOT PARTICIPATING: COLBERT, AND REIF, such services. Dobson argues that a request for JJ. reimbursement under Subsection (K) does not COMBS, J., concurring: require any such cost allocation nor has the Commission ever required one in previous ¶1 I concur in the majority opinion but write Subsection (K) matters. separately to emphasize the audacity of the ¶28 Subsection (K) plainly provides that Commission’s blanket denial of Appellant’s, where a provider incurs cost increases due to a Dobson Telephone Company, application. The state law or order, the provider SHALL recover legislature established a process by which a the cost increase from the OUSF. 17 O.S.Supp. rural provider with limited resources is allowed 2016, § 139.106(K)(1)(b). There is no mention of to be reimbursed from the Oklahoma Univer- a requirement for cost allocation and we are sal Service Fund (OUSF) when the rural pro- not inclined to impose such requirement now. vider meets increased costs in fulfilling a man- The Commission again ignores the plain lan- date to provide reliable and affordable tele- guage of the Act and attempts to impose new phone service to Oklahomans in remote and conditions not required by the Act, nor sup- underserved areas. The Commission’s majority portive of its purpose. all but ignored the evidence presented ostensibly because of a fundamental disagreement with the Oklahoma Universal Service Fund.1

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 455 This is nothing more than an attempt to further b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state disenfranchise rural Oklahoma from basic tele- law, an eligible local exchange telecommunications service pro- phone services. vider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the WINCHESTER, J., OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, or c. if, as a result of changes made as required by existing or future 1. Section 139.107 provides, in part: federal or state regulatory rules, orders, or policies or by federal A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- or state law, an eligible local exchange telecommunications ser- versal Service Fund (OUSF) shall be funded in a competitively vice provider experiences a reduction in costs, upon approval by neutral manner not inconsistent with federal law by all contrib- the Commission, the provider shall reduce the level of OUSF uting providers. The funding from each contributing provider funding it receives to a level sufficient to account for the reduc- shall be based on the total intrastate retail Oklahoma Voice over tion in costs. Internet Protocol (VoIP) revenues and intrastate telecommunica- 2. The receipt of OUSF funds for any of the changes referred to tions revenues, from both regulated and unregulated services, of in this subsection shall not be conditioned upon any rate case or the contributing provider, hereinafter referred to as assessed earnings investigation by the Commission. The Commission revenues, as a percentage of all assessed revenues of the contrib- shall, pursuant to subsection D of this section, approve the uting providers, or such other assessment methodology not request for payment or adjustment of payment from the OUSF inconsistent with federal law. VoIP services shall be assessed based on a comparison of the total annual revenues received only as provided for in the decision of the Federal Communica- from the sources affected by the changes described in paragraph tions Commission, FCC 10-185, released November 5, 2010, or 1 of this subsection by the requesting eligible local exchange such other assessment methodology that is not inconsistent with telecommunications service provider during the most recent federal law. The Commission may after notice and hearing twelve (12) months preceding the request, and the reasonable modify the contribution methodology for the OUSF and OLF, calculation of total annual revenues or cost increases which will provided the new methodology is not inconsistent with federal be experienced after the changes are implemented by the law. requesting eligible local exchange telecommunications service B. The Corporation Commission shall establish the OLF assess- provider. ment and the OUSF assessment at a level sufficient to recover 17 O.S.Supp.2016, § 139.106(K). costs of administration and payments for OUSF and OLF 6. The ALJ likewise believed that Dobson was an eligible provider requests for funding as provided for in the Oklahoma Telecom- who had provided sufficient documentation to receive OUSF funding. munications Act of 1997. The administration of the OLF and Nevertheless, the ALJ deferred to the Commission rulings in the prior OUSF shall be provided by the Public Utility Division of the companion cases and recommended denial of the requested funds. Commission. The administrative function shall be headed by the Administrator as defined in Section 139.102 of this title. The COMBS, J., concurring: Administrator shall be an independent evaluator. The Adminis- trator may enter into contracts to assist with the administration of the OLF and OUSF. 1. Appellant’s Brief in Chief at 1, March 6, 2018, states “Commis- 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is sioner Bob Anthony has repeatedly spoken out against the law [Okla- used in § 139.107 means “providers, including but not limited to pro- homa Universal Service Fund], even going so far as to ask the Legisla- viders of intrastate telecommunications, providers of intrastate tele- ture, in writing, to repeal it.” He stated the Fund is a bad program that communications for a fee on a non-common-carrier basis, providers of should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. wireless telephone service and providers of interconnected Voice over 113,362. The Brief also states other members of the Commission have Internet Protocol (VoIP). Contributing providers shall contribute to the expressed their displeasure with the law. Commissioner Murphy, how- Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 ever, dissented against the denial of the request for OUSF funding. O.S.Supp.2016, § 139.102 (8). 2. Companion Case No. 115,453 involves a request for funds under 2019 OK 27 Subsection (G) while the remaining six, companion cases, including the instant matter, involve requests brought under Subsection (K), set DOBSON TELEPHONE COMPANY, forth more fully herein. Those cases, also decided today, are Case Nos. 116,193, 116,194, 116,214, 116,215, and 116,422. Appellant, v. STATE OF OKLAHOMA EX 3. For purposes of this appeal, it is undisputed that Dobson is an REL. OKLAHOMA CORPORATION eligible local exchange provider providing primary services to its customers. COMMISSION, Appellee. 4. The Oklahoma Constitution, art. 9, Section 18 specifies that the Commission has: Case No. 116,422. April 16, 2019 the power and authority and [is] charged with the duty of super- vising, regulating and controlling all transportation and trans- APPEAL FROM OKLAHOMA mission companies doing business in this State, in all matters CORPORATION COMMISSION CAUSE relating to the performance of their public duties and their charges therefor, and of correcting abuses and preventing unjust NO. PUD 201700041 discrimination and extortion by such companies; and to that end the Commission shall, from time to time, prescribe and enforce Dana Murphy, Chairman; Todd Hiett, Vice against such companies, in the manner hereinafter authorized, Chairman; and Bob Anthony, Commissioner. such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such public service, facilities, and conveniences as may be reasonable ¶0 Dobson Telephone Company appeals the and just, which said rates, charges, classifications, rules, regula- Oklahoma Corporation Commission’s denial tions, and requirements, the Commission may, from time to time, of its application for reimbursement from the alter or amend. 5. Subsection 139.106(K) of the Act provides in toto: Oklahoma Universal Services Fund for expens- K. 1. Each request for OUSF funding by an eligible ILEC serving es incurred when it was ordered by the State less than seventy-five thousand access lines shall be premised upon the occurrence of one or more of the following: Department of Transportation to relocate its a. in the event of a Federal Communications Commission order, telephone lines within the public right-of-way rule or policy, the effect of which is to decrease the federal universal service fund revenues of an eligible local exchange tele- of a State construction project. We find that the communications service provider, the eligible local exchange Commission’s wholesale denial of the reim- telecommunications service provider shall recover the decreases in revenues from the OUSF, bursement of the requested funds is in error. The Commission’s ruling is hereby vacated

456 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 and the matter is remanded with directions to addition, the provider must offer the requested approve the requested funding. services at reasonable and affordable rates in line with those offered in more urban areas ORDER OF THE OKLAHOMA even if serving such customers would not be CORPORATION COMMISSION economically sustainable. See 47 U.S.C. § 202; REVERSED AND REMANDED WITH 47 U.S.C. § 254(b)(3), (g), (i). The purpose of the INSTRUCTIONS. legislation was to provide affordable and qual- William H. Hoch, Melanie Wilson Rughani, ity primary universal services to all despite the Crowe & Dunlevy, P.C., Oklahoma City, Okla- challenges of its accessibility. homa, and Ron Commingdeer, Kendall W. ¶4 In an effort to defray the costs of deliver- Parrish, Ron Commingdeer & Associates, ing phone service in rural, more remote areas, Oklahoma City, Oklahoma, for Appellant. the federal and state Acts each established a Michele Craig, Deputy General Counsel, Okla- fund to help support eligible service providers. homa Corporation Commission, Oklahoma Within Oklahoma’s Act, the Legislature creat- City, Oklahoma, for Appellee. ed the OUSF to help pay for reasonable investments and expenses incurred by “eligible local Nancy M. Thompson, Oklahoma City, Okla- exchange telecommunications service provid- homa, for Sprint Communications Company, ers” in providing primary universal services to L.P., Sprint Spectrum L.P. and Virgin Mobile customers in rural and high-cost areas “at rates USA, L.P. that are reasonable and affordable.” See 17 WINCHESTER, J., O.S.Supp.2016, § 139.106 (A), (B), and (G). The OUSF generally provides that an eligible pro- ¶1 The issue before this Court is whether the vider “may request funding from the OUSF as Oklahoma Corporation Commission (“the necessary to maintain rates for primary univer- Commission”) erroneously withheld funding sal services that are reasonable and afford- to be provided to Dobson Telephone Company able.” 17 O.S.Supp.2016, § 139.106 (G). The (“Dobson”) pursuant to the provisions of the OUSF is funded by a charge paid by certain Oklahoma Universal Service Fund (“OUSF”), telecommunications carriers that have reve- 17 O.S.Supp.2016, § 139.106. For the reasons set nues as defined in Section 139.107. See 17 forth herein, we find that Dobson is entitled to O.S.Supp.2016, §§ 139.106 (D) and 139.107.1 the requested funding. ¶5 The Commission’s rules governing the STATUTORY BACKGROUND process for obtaining funding from the OUSF are set out in OAC 165:59, Part 9 and are over- ¶2 In 1996, the U.S. Congress passed the fed- seen by the Administrator of the Commission’s eral Telecommunications Act, 47 U.S.C. §§ 151 Public Utilities Division (“PUD”). Under the et seq., in part, to promote a policy of universal rules, upon receipt of a request for OUSF fund- service that would provide telecommunication ing, the OUSF Administrator reviews the re- services to consumers all over the country, quest and, if appropriate, reimburses the pro- including “those in rural, insular, and high cost vider consistent with the Act. OAC 165:59-7- areas.” The Act seeks to provide access to ser- 1(d) and OAC 165:59-3-62(g). Requests for vices that are “reasonably comparable to those Subsection (G)’s “as necessary” distributions services provided in urban areas and that are are evaluated through a detailed study and an- available at rates that are reasonably compara- alysis of the “costs of providing primary uni- ble to rates charged for similar services in versal services” as well as potential revenue. 17 urban areas.” 47 U.S.C. § 254(b)(3). The Okla- O.S.Supp.2016, § 139.106 (H). The re-view pro- homa Legislature followed suit with its own, cess for claims submitted under Subsection (G) complementary Oklahoma Telecommunica- can be time-consuming and tedious, often tions Act of 1997 (the “Act”). 17 O.S.2011 and resulting in a significant delay in receipt of any Supp.2016, §§ 139.101 et seq. funds.2 As a result, the Legislature provided a ¶3 Under the state and federal Acts, certain mechanism within the Act that would allow telecommunications providers known as “car- providers in the rural areas quicker access to mandatory payments in certain, limited cir- riers of last resort” are required to provide, cumstances. See 17 O.S.Supp.2016, § 139.106(K). without discrimination, telephone service to any customer requesting it. See 47 U.S.C. § 201; ¶6 Subsection (K)(1)(a) mandates that, if “a 17 O.S.2011 and Supp.2016, §§ 136 and 138. In Federal Communications Commission order,

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 457 rule or policy” has the effect of “decreas[ing] ¶9 In 2014, the Commission denied a request the federal universal service fund revenues of for OUSF funding from Dobson Telephone an eligible local exchange telecommunications Company. See Dobson Telephone Co. v. State ex service provider,” that provider “shall recover rel. Okla. Corporation Comm., 2017 OK CIV APP the decreases in revenues from the OUSF.” 17 16, 392 P.3d 295. Dobson sought reimburse- O.S.Supp.2016, § 139.106 (K)(1)(a). Similarly, ment, under Subsection (K)1)(b) of the OUSF, Subsection (K)(1)(b) provides that, if changes for costs incurred to relocate its telephone required by “federal or state regulatory rules, facilities as required by the city of Oklahoma orders, or policies” reduce the revenues or City for a street-widening project. Because the increase the costs to an eligible local exchange request had been issued by the city, and not the telecommunications service provider, then that county commission or ODOT, the Commission provider “shall recover the revenue reductions narrowly interpreted the statute and conclud- or cost increases from the OUSF.” 17 O.S.Supp. ed that the Fund was not authorized to pay for 2016, § 139.106 (K)(1)(b). Under Subsection (K), such relocation costs. distributions from the OUSF “shall not be con- ¶10 The Court of Civil Appeals found that ditioned upon any rate case or earnings inves- the Commission’s interpretation of the statu- tigation by the Commission,” but, instead, tory language defeats the purpose of the Fund should be paid in an amount equal to the and is contra to the legislative intent to defray increase in costs or reduction in revenues. 17 increased costs incurred by eligible telecom- O.S.Supp.2016, § 139.106 (K)(2). munications service providers resulting from ¶7 The Commissioners are free to approve or government action, no matter the originating reject any determination by the OUSF Admin- government entity. Dobson Telephone Co. v. State istrator. Under the rules, if no one objects to the ex rel. Okla. Corporation Comm., 2017 OK CIV Administrator’s determination, an order ap- APP 16, ¶21, 392 P.3d 295, 305. The Commis- proving the funding request is issued by the sion’s Order was vacated and the matter was Commission. OAC 165:59-3-62(j). If, however, a remanded for further proceedings consistent party is not satisfied with the OUSF Adminis- with the Court of Civil Appeals opinion. Dob- trator’s determination, the party may file a son Telephone Co. v. State ex rel. Okla. Corpora- request for reconsideration by the Commission tion Comm., 2017 OK CIV APP 16, ¶23, 392 and the matter is set for hearing. OAC 165:59- P.3d 295, 305. This Court approved the case 3-62(h) and (i). The Commission is the ultimate for publication. arbiter of the issues. See, Cameron v. Corporation FACTUAL BACKGROUND Com ‘n, 1966 OK 75, ¶29, 414 P.2d 266, 272 (on appeal from an oil and gas spacing order, the ¶11 Dobson provides telecommunications Court noted that regardless of whatever weight services to customers in rural areas of Oklaho- the Commission may attach to an examiner’s ma, serving fewer than 75,000 access lines. On report, “the Commission is the final arbiter of September 30, 2014, the Oklahoma Department the issues”). See also, State ex rel. Cartwright v. of Transportation (ODOT) sent a letter to Dob- Southwestern Bell Telephone Co., 1983 OK 40, son ordering the relocation of certain telephone ¶32, 662 P.2d 675, 681 (quoting Cameron). lines within a public right-of-way of an ODOT, highway construction project on State High- ¶8 The Commission, by a 2-1 vote, denied way 33, in Roger Mills County. Dobson moved reimbursement. Commissioner Dana Murphy, the lines as requested for a net total of dissenting in each of these companion cases, $29,166.55, after accounting for limited ODOT has stated that although she may not agree funding in the amount of $4,761. Dobson then with the need for the fund, she feels she must filed an application with the Commission, uphold the Legislature’s will as long as the under Subsection (K)(1)(b), for reimbursement fund exists. She dissented to the denial of of this amount from the OUSF using a form Medicine Park’s request stating that because created by the Commission and following the she didn’t believe the majority decision “com- same process as other companies when seeking ports with the Oklahoma Legislature’s intent an OUSF refund. to, in part, provide support to small, rural carriers who have experienced increases in costs ¶12 Dobson made detailed, confidential as a result of changes required by governmen- information regarding the project’s costs avail- tal acts and with the Legislative policy to pre- able for inspection to the Commission’s OUSF serve and advance universal services.” Administrator. This included information re-

458 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 garding the costs incurred, invoices for engi- The Supreme Court’s review of appealable neering, equipment and supplies, and internal orders of the Corporation Commission employee timesheets and wages. The Adminis- shall be judicial only, and in all appeals trator reviewed Dobson’s application, inspect- involving an asserted violation of any right ed the confidential information and ultimately of the parties under the Constitution of the approved a reimbursement for Dobson in the United States or the Constitution of the amount of $28,817.23. It disallowed $349.32 State of Oklahoma, the Court shall exercise due to a lack of supporting invoices. its own independent judgment as to both the law and the facts. In all other appeals from ¶13 Various competitor telephone compa- orders of the Corporation Commission the nies, collectively known as Sprint for purposes review by the Supreme Court shall not of this appeal, objected and filed a Request for extend further than to determine whether Reconsideration on May 11, 2017. A hearing the Commission has regularly pursued its was held before an ALJ, where the evidence authority, and whether the findings and con- was briefed and summarized, additional testi- clusions of the Commission are sustained by mony was taken, and the objecting parties the law and substantial evidence. were permitted to cross-examine witnesses – including the Administrator – and present Okla. Const. art. 9, § 20. evidence or argument to the contrary. The ALJ ¶17 The issue in this appeal concerns the agreed that Dobson was an eligible provider,3 Commission’s legal interpretation of the OUSF that the facilities in question were used in the statute and the alleged arbitrary and capricious provision of primary universal services, and denial of funding in violation of the Oklahoma that the expenses incurred by Dobson were as Constitution. Constitutional implications as a result of a state government mandate. Despite well as statutory interpretation dictate our de the Administrator’s recommendation, and her novo review of this case. Cox Oklahoma Telecom, apparent agreement therewith, the ALJ indi- LLC v. State ex rel. Oklahoma Corp. Comm’n, 2007 cated she was bound by recent Commission OK 55, ¶9, n.17, 164 P.3d 150, 156. Under the de rulings in similar cases, made companions novo standard of review, the Court has plenary, hereto, and recommended a denial of Dobson’s independent and non-deferential authority to request. determine whether the trial tribunal erred in its ¶14 Thereafter, the Commission voted, 2-1, legal rulings. Cox Oklahoma Telecom, LLC v. State to deny Dobson’s request. The two-person ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶9, majority found that Dobson’s request was not n.16, 164 P.3d 150, 156; Neil Acquisition v. Wing- sufficiently supported by evidence as the con- rod Investment Corp., 1996 OK 125, ¶5, 932 P.2d fidential information reviewed by its Admin- 1100, 1103; Fanning v. Brown, 2004 OK 7, ¶8, 85 istrator was not included in the record before P.3d 841, 845. the Commission. The Commission further de- ¶18 This Court has found that the Commis- termined that Dobson failed to prove that the sion’s power “must be exercised only within expenditures at issue were necessary to pro- the confines of its limited jurisdiction as provide primary universal services at a reasonable vided by the Oklahoma Constitution” and and affordable rate. Finally, the Commission state statute.4 Pub. Serv. Co. v. State ex rel. Corp. stated that it was without sufficient informa- Comm’n, 1997 OK 145, ¶23, 948 P.2d 713, 717. tion to determine whether the expenses were The Commission’s “power to regulate is not incurred only for primary universal services. unfettered.” Pub. Serv. Co. v. State ex rel. Corp. ¶15 Dobson appealed, requesting that the Comm’n, 1996 OK 43, ¶21, 918 P.2d 733, 738. Commission’s denial be reversed. We retained DISCUSSION the matter and made it a companion to Case Nos. 115,453, 116,193, 116,194, 116,214, 116,215, ¶19 Under the OUSF, eligible telecommuni- and 116,421. cations providers serving fewer than 75,000 access lines are entitled to recover increases in STANDARD OF REVIEW costs as a result of changes to facilities that are ¶16 This Court’s review of decisions of the required by state or federal law. 17 O.S. Commission is governed by the Oklahoma Supp.2016, § 139.106(K).5 It is undisputed that Constitution, article 9, § 20, which states as fol- Dobson is an eligible provider under the Act. It lows, in relevant part: is further undisputed that Dobson was required by ODOT to relocate its lines, causing it to incur

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 459 an increase in costs. The Act mandates that Temple, 793 F.2d 1165, 1169 (10th Cir. 1986) where changes are “required by existing or (“Agencies are under an obligation to follow future federal or state regulatory rules, orders, their own regulations, procedures, and prece- or policies or by federal or state law,” and such dents, or provide a rational explanation for changes cause an eligible provider to experi- their departures.”). ence an increase in costs, the provider “shall ¶22 The Administrator agreed with Dobson recover” such “cost increases from the OUSF.” that the standard procedure followed by the 17 O.S.Supp.2016, § 139.106(K)(1)(b) (emphasis Commission had always been for an applicant added). We have interpreted the use of the to fill out a Commission-approved form and word “shall” by the Legislature “as a legisla- make confidential information supporting its tive mandate equivalent to the term ‘must’, application available for the Commission to requiring interpretation as a command.” Minie review on-site. He offered that this practice v. Hudson, 1997 OK 26, ¶7, 934 P.2d 1082, 1086. occurred not only in OUSF cases, but in numer- Thus, under the express provisions of the Act, ous other Commission matters. We find the Dobson was entitled to receive reimbursement Commission was not entitled to discount Dob- from the OUSF for these cost increases. son’s entire application merely because the ¶20 In support of its decision to deny Dob- documents the Administrator inspected and son’s requested funding, the Commission’s relied upon for his approval were not publicly majority found that Dobson failed to produce filed of record before the Commission. sufficient evidence into the record. Despite ¶23 Dobson argues, and the Commission acknowledging that its “Administrator was does not dispute, that the Commission’s own afforded, and took advantage of, the opportu- rules and long-standing practices encouraged nity to perform a ‘review of the Application, applicants to retain its confidential supporting contractor’s invoices, internal invoices, con- materials on site, making such materials avail- struction drawings, pre-engineering plans, able for review and inspection as needed to work orders, plans and maps, timesheets, support an application. In fact, Commission reimbursement checks, contracts, responses to rule, OAC 165:59-3-72(d), specifically contem- data requests, relevant Oklahoma Statutes,’ its plates that “documentation not contained in own administrative rules regarding the OUSF,” the public record and not filed in the cause” the Commission ignored the Administrator’s may nevertheless be “relied upon by the OUSF finding that the documents provided by Dob- Administrator in approving or denying an son supported its request for funding.6 The application.” The Administrator disclosed that Commission complained that it was limited to a the Commission does not even have proce- mathematical review as many of the documents dures in place that would allow it to handle relied on, and reviewed by, the Administrator “the responsibility or liability” of receiving occurred on-site at Dobson’s place of business such confidential materials. and were not made publicly available due to the ¶24 Dobson filed an application, completed confidential nature of the documents. by using a Commission-issued form, which ¶21 Dobson points out that up until the filing certified that as a result of an ODOT mandate of these companion cases, the Commission had to relocate its facilities it incurred an increase in for years previously accepted the Administra- costs in the amount of $29,166.55, after sub- tor’s review of confidential documents on site. tracting an ODOT reimbursement of $4761.00. Dobson maintains that they should not be The company presented the testimony of a penalized for the Commission’s option not to company witness who reviewed all of Dob- take advantage of the opportunity to review, or son’s pertinent, confidential materials, and even request to review, any of the confidential- who confirmed the validity of the requested ly-redacted documents. Dobson also cites cases amounts. The Administrator also reviewed the supporting the proposition that long-standing confidential materials and agreed that Dob- actions or interpretations by an agency will not son’s application and documentation support- be idly cast aside without proper notice to ed the relief requested, as nominally modified affected parties. See, e.g., Oral Roberts Univ. v. by the Administrator to a lump sum of Okla. Tax Comm’n, 1985 OK 97, ¶10, 714 P.2d $28,817.23. The ALJ – although declining to 1013, 1015 (Courts are reluctant to overturn recommend approval – likewise agreed with long standing construction where parties hav- both the independent witness and the Admin- ing great interest in such construction will be istrator that Dobson’s application and offered prejudiced by its change); Big Horn Coal Co. v. materials supported approval thereof. Despite

460 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 these findings, the Commission unexpectedly entity filed a Request for Reconsideration of faulted Dobson for failing to publicly submit the Administrator’s determination. Where no its confidential materials when documents of such reconsideration request is filed, the such a nature have not been typically filed with Administrator’s approval, after a proper statu- the Commission, nor required. Such flawed tory review, would typically trigger a Commis- reasoning should not support a denial of the sion order granting the applicant’s request. application herein. ¶27 The Commission also criticized the fact ¶25 Additionally, for the first time in these that the relocated lines were used for services companion cases, the Commission interpreted not related to primary universal services. The Subsection (K) to impose a finding that Dob- Commission maintains that Dobson should son’s rates for primary universal services are have allocated the cost of the project between reasonable and affordable pursuant to Subsec- such services. Dobson argues that a request for tion (B) and that the requested funding is nec- reimbursement under Subsection (K) does not essary to maintain such reasonable and afford- require any such cost allocation nor has the able rates. As mentioned, supra, § 139.106(K)(1) Commission ever required one in previous (b) plainly provides that where a provider Subsection (K) matters. incurs increased costs due to a state law, order ¶28 Subsection (K) plainly provides that or policy, the provider SHALL recover the cost where a provider incurs cost increases due to a increase from the OUSF. See 17 O.S.Supp.2016, state law or order, the provider SHALL recover § 139.106(K)(1)(b). There is no mention of a the cost increase from the OUSF. 17 O.S.Supp. condition that the applicant must prove that its 2016, § 139.106(K)(1)(b). There is no mention of rates are reasonable and affordable nor is there a requirement for cost allocation and we are a requirement to find the reimbursement nec- not inclined to impose such requirement now. essary to maintain such rates. To the contrary, § The Commission again ignores the plain lan- 139.106(K)(2) specifically states that an applica- guage of the Act and attempts to impose new tion’s approval “shall not be conditioned upon conditions not required by the Act, nor sup- any rate case or earnings investigation by the portive of its purpose. Commission.” 17 O.S.Supp.2016, § 139.106(K) (1)(b). We are not inclined to add requirements ¶29 Dobson contends that the Commission’s to a statute that the Legislature chose not to complete denial of funding disregards the very impose. See Pentagon Acad., Inc. v. Indep. Sch. purpose of the OUSF to ensure the availability Dist. No. 1 of Tulsa Cty., 2003 OK 98, ¶19, 82 P.3d of affordable telephone service to customers in 587, 591 (“It is not the function of the courts to rural and high cost areas where, absent the add new provisions which the legislature chose subsidies, their provision would be cost-pro- to withhold.”); Minie v. Hudson, 1997 OK 26, hibitive. We agree. The Commission majority’s ¶12, 934 P.2d 1082, 1087 (“This Court may not, disapproval of the policy behind the OUSF through the use of statutory construction, legislation has no bearing on the validity of an change, modify or amend the expressed intent applicant’s request for funding. We agree with of the Legislature.”). the dissenting Commissioner that it is our duty to uphold legislation as it is enacted. ¶26 Dobson contends that the Commission’s complete denial of funding disregards the very CONCLUSION purpose of the OUSF to ensure the availability ¶30 Although the Commission is not bound of affordable telephone service to customers in by the Administrator’s recommendation, we rural and high cost areas where, absent the find that the record reflects ample evidence subsidies, their provision would be cost-pro- with which to support the Administrator’s hibitive. We agree. The Commission ignores determination. The Administrator, as well as the plain language of the Act and attempts to the dissenting Commissioner, both agreed impose new conditions not required by the Dobson was entitled to reimbursement of the Act, nor supportive of its purpose. Generally, increased costs it incurred as a result of ODOT’s applicants who filed under Subsection (K) mandate to relocate the telephone lines. The could expect a quick reimbursement after Commission’s wholesale denial of Dobson’s approval by the Administrator that the appli- request was in error. Accordingly, we vacate cation had followed the statutory process. The the order of the Commission and remand the Commission’s in-depth review of a Subsection cause for further proceedings consistent with (K) application would only arise if an outside this opinion.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 461 ORDER OF THE OKLAHOMA Internet Protocol (VoIP). Contributing providers shall contribute to the Oklahoma Universal Service Fund and Oklahoma Lifeline Fund.” 17 CORPORATION COMMISSION VACATED O.S.Supp.2016, § 139.102 (8). AND REMANDED. 2 .Companion Case No. 115,453 involves a request for funds under Subsection (G) while the remaining six, companion cases, including CONCUR: GURICH, C.J., KAUGER, WIN- the instant matter, involve requests brought under Subsection (K), set forth more fully herein. Those cases, also decided today, are Case Nos. CHESTER, EDMONDSON, and DARBY, JJ. 116,193, 116,194, 116,214, 116,215, and 116,421. 3. For purposes of this appeal, it is not disputed that Dobson is an CONCURRING SPECIALLY (by separate writ- eligible local exchange provider providing primary services to its cus- ing): COMBS, J. tomers. 4. The Oklahoma Constitution, art. 9, Section 18 specifies that the NOT PARTICIPATING: COLBERT, AND REIF, Commission has: JJ. the power and authority and [is] charged with the duty of super- vising, regulating and controlling all transportation and trans- COMBS, J., concurring: mission companies doing business in this State, in all matters relating to the performance of their public duties and their ¶1 I concur in the majority opinion but write charges therefor, and of correcting abuses and preventing unjust discrimination and extortion by such companies; and to that end separately to emphasize the audacity of the the Commission shall, from time to time, prescribe and enforce Commission’s blanket denial of Appellant’s, against such companies, in the manner hereinafter authorized, Dobson Telephone Company, application. The such rates, charges, classifications of traffic, and rules and regulations, and shall require them to establish and maintain all such legislature established a process by which a public service, facilities, and conveniences as may be reasonable rural provider with limited resources is allowed and just, which said rates, charges, classifications, rules, regulations, and requirements, the Commission may, from time to time, to be reimbursed from the Oklahoma Univer- alter or amend. sal Service Fund (OUSF) when the rural pro- 5. Subsection 139.106(K) of the Act provides in toto: K. 1. Each request for OUSF funding by an eligible ILEC serving vider meets increased costs in fulfilling a man- less than seventy-five thousand access lines shall be premised date to provide reliable and affordable tele- upon the occurrence of one or more of the following: a. in the event of a Federal Communications Commission order, phone service to Oklahomans in remote and rule or policy, the effect of which is to decrease the federal uni- underserved areas. The Commission’s majority versal service fund revenues of an eligible local exchange tele- all but ignored the evidence presented ostensi- communications service provider, the eligible local exchange telecommunications service provider shall recover the decreases bly because of a fundamental disagreement in revenues from the OUSF, with the Oklahoma Universal Service Fund.1 b. if, as a result of changes required by existing or future federal or state regulatory rules, orders, or policies or by federal or state This is nothing more than an attempt to further law, an eligible local exchange telecommunications service pro- disenfranchise rural Oklahoma from basic tele- vider experiences a reduction in revenues or an increase in costs, it shall recover the revenue reductions or cost increases from the phone services. OUSF, the recovered amounts being limited to the net reduction in revenues or cost increases, or WINCHESTER, J., c. if, as a result of changes made as required by existing or future federal or state regulatory rules, orders, or policies or by federal 1. Section 139.107 provides, in part: or state law, an eligible local exchange telecommunications ser- A. The Oklahoma Lifeline Fund (OLF) and the Oklahoma Uni- vice provider experiences a reduction in costs, upon approval by versal Service Fund (OUSF) shall be funded in a competitively the Commission, the provider shall reduce the level of OUSF neutral manner not inconsistent with federal law by all contrib- funding it receives to a level sufficient to account for the reduc- uting providers. The funding from each contributing provider tion in costs. shall be based on the total intrastate retail Oklahoma Voice over 2. The receipt of OUSF funds for any of the changes referred to Internet Protocol (VoIP) revenues and intrastate telecommunica- in this subsection shall not be conditioned upon any rate case or tions revenues, from both regulated and unregulated services, of earnings investigation by the Commission. The Commission the contributing provider, hereinafter referred to as assessed shall, pursuant to subsection D of this section, approve the revenues, as a percentage of all assessed revenues of the contrib- request for payment or adjustment of payment from the OUSF uting providers, or such other assessment methodology not based on a comparison of the total annual revenues received inconsistent with federal law. VoIP services shall be assessed from the sources affected by the changes described in paragraph only as provided for in the decision of the Federal Communica- 1 of this subsection by the requesting eligible local exchange tions Commission, FCC 10-185, released November 5, 2010, or telecommunications service provider during the most recent such other assessment methodology that is not inconsistent with twelve (12) months preceding the request, and the reasonable federal law. The Commission may after notice and hearing calculation of total annual revenues or cost increases which will modify the contribution methodology for the OUSF and OLF, be experienced after the changes are implemented by the provided the new methodology is not inconsistent with federal requesting eligible local exchange telecommunications service law. provider. B. The Corporation Commission shall establish the OLF assess- 17 O.S.Supp.2016, § 139.106(K). ment and the OUSF assessment at a level sufficient to recover 6. The ALJ likewise believed that Dobson was an eligible provider costs of administration and payments for OUSF and OLF who had provided sufficient documentation to receive OUSF funding. requests for funding as provided for in the Oklahoma Telecom- Nevertheless, the ALJ deferred to the Commission rulings in the prior munications Act of 1997. The administration of the OLF and companion cases and recommended denial of the requested funds. OUSF shall be provided by the Public Utility Division of the Commission. The administrative function shall be headed by the COMBS, J., concurring: Administrator as defined in Section 139.102 of this title. The Administrator shall be an independent evaluator. The Adminis- 1. Appellant’s Brief in Chief at 1, March 6, 2018, states “Commis- trator may enter into contracts to assist with the administration sioner Bob Anthony has repeatedly spoken out against the law [Okla- of the OLF and OUSF. homa Universal Service Fund], even going so far as to ask the Legisla- 17 O.S.Supp.2016, § 139.107. “Contributing provider” as that term is ture, in writing, to repeal it.” He stated the Fund is a bad program that used in § 139.107 means “providers, including but not limited to pro- should be repealed. Tr. at 30-31, June 26, 2014, Ok. Sup. Ct. Case No. viders of intrastate telecommunications, providers of intrastate tele- 113,362. The Brief also states other members of the Commission have communications for a fee on a non-common-carrier basis, providers of expressed their displeasure with the law. Commissioner Murphy, how- wireless telephone service and providers of interconnected Voice over ever, dissented against the denial of the request for OUSF funding.

462 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Opinions of Court of Criminal Appeals

2019 OK CR 5 needed arm surgery and because of a pending worker’s compensation settlement. On cross- JONAS JORGE CONROY-PEREZ, examination, Appellant acknowledged his Appellant, -vs- THE STATE OF accident occurred about one and one-half OKLAHOMA, Appellee. months before he entered his plea in this case No. F-2017-559. Thursday, April 4, 2019 and he knew about his medical issues and his worker’s compensation issues when he entered SUMMARY OPINION the plea agreement. After his testimony, Appel- LUMPKIN, JUDGE: lant rested. ¶1 Appellant, Jonas Jorge Conroy-Perez, ¶5 In closing, the State argued that, while it appeals from the acceleration of his deferred was understandable Appellant wasn’t working judgment and sentencing in Case No. CF-2014- because of his pending surgery and pending 182 in the District Court of Washita County, by worker’s compensation settlement, he still had the Honorable Christopher S. Kelly, Associate the responsibility to make required payments. District Judge. On August 20, 2015, Appellant The State also noted Appellant agreed to make entered a negotiated plea of guilty to Harbor- the payments after his accident. The State ing a Fugitive From Justice, and judgment and asked that Appellant be convicted and sen- sentencing was deferred for two years until tenced to a term of five years, with all but the August 17, 2017, pursuant to rules and condi- first ninety days suspended. Counsel for Ap- tions of probation. pellant argued the evidence showed he is willing and wants to work but can’t because of his ¶2 On February 11, 2016, the State filed an physical disability caused by the accident. application to accelerate Appellant’s deferred sentencing alleging he violated probation by (1) ¶6 After hearing the arguments, Judge Kelly having new felony charges filed for Knowingly stated that, having reviewed the evidence and Concealing Stolen Property in the District Court testimony, Appellant had violated his rules of Washita County; and (2) by failing, refusing and conditions of probation and his deferred and neglecting to pay his “Prosecution Reim- judgment would be accelerated to a term of ten bursement fees to the District Attorney’s Office.” years with DOC, with all time suspended On May 30, 2017, the hearing on the application except for the first ninety days. to accelerate was held before Judge Kelly. ¶7 Appellant filed this appeal asserting four ¶3 At the hearing, the State presented the propositions of error: testimony of Brittani Brice (“Brice”), a victim/ PROPOSITION I: witness coordinator for the Washita County District Attorney’s Office. Brice testified that in MR. CONROY-PEREZ WAS DENIED DUE August of 2015 Appellant had been ordered to PROCESS AND A FAIR HEARING WHEN pay $960.00 in District Attorney supervision HIS SENTENCE WAS ACCELERATED FOR fees; Appellant made a payment of $80.00 on VIOLATING A CONDITION OF PROBA- January 15, 2016, as his only payment; and TION THAT WAS NOT ORDERED. thus his current balance was $880.00. On cross- PROPOSITION II: examination, Brice testified that she had not checked on and was not testifying about Appel- THE TRIAL COURT ABUSED ITS DISCRE- lant’s financial condition, only that he owes TION BY ACCELERATING MR. CONROY- $880.00. After Brice’s testimony, the State rested.1 PEREZ’S SENTENCE BASED SOLELY ON FINANCIAL REASONS. ¶4 Appellant testified in his own defense. Appellant said he had not worked since June PROPOSITION III: 11, 2015, when he was in a vehicle wreck while working for a television and appliance com- APPELLANT WAS DENIED THE EFFEC- pany. Appellant testified he was on worker’s TIVE ASSISTANCE OF COUNSEL TO compensation and could not work because he WHICH HE WAS ENTITLED UNDER THE

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 463 6TH AND 14TH AMENDMENTS TO THE State has the burden to prove by a preponder- UNITED STATES CONSTITUTION AND ance of the evidence that the probationer has ART. II, §§ 7 AND 20 OF THE OKLAHOMA failed to make the required payments. McCas- CONSTITUTION. key v. State, 1989 OK CR 63, ¶ 4, 781 P.2d 836, 837 (citing Bearden v. Georgia, 461 U.S. 660, 103 PROPOSITION IV: S.Ct. 2064, 76 L.Ed.2d 221 (1983)); see also Win- UNDER THE FACTS OF THIS CASE, A bush v. State, 2018 OK CR 38, 433 P.3d 1275. SENTENCE OF TEN YEARS IS EXCESSIVE. Once the State has met this burden, the burden shifts to the probationer to show that the fail- ANALYSIS ure to pay was not willful, or that Appellant ¶8 In Proposition I, Appellant claims he was has made a good faith effort to make restitu- never ordered to pay prosecution reimburse- tion. Id. If the probationer presents evidence to ment fees to the District Attorney’s Office, as show non-payment was not willful, the hear- alleged in the State’s application to accelerate ing court must make a finding of fact regarding his deferred sentencing, and therefore he was the probationer’s ability to pay. Id. denied due process by being accelerated for his ¶12 In this case, the State proved that Appel- failure to pay supervision fees to the District lant failed to make required payments of $40.00 Attorney’s Office. Appellant’s rules and condi- per month on District Attorney probation fees, tions of probation state that he shall “Pay and was $880.00 in arrears on those payments. In $40.00 per month District Attorney’s Proba- defense, Appellant testified he had not been able tion Fee . . . EACH MONTH OF PROBA- to work throughout the term of his probation TION.” (O.R. 40-41, emphasis in original). The due to a work related vehicle accident. Appel- rules and conditions do not differentiate as to lant testified he could not make the required whether they are prosecution reimbursement payments because he needed arm surgery and fees or supervision fees. Even if the fees were because of a pending worker’s compensation described as supervision fees during the sen- settlement. The District Court accelerated Appel- tencing hearing, Appellant had clear notice that lant’s deferred judgment and sentencing stat- he had been ordered to pay $40.00 per month in ing only that Appellant violated his rules and probation fees to the District Attorney’s office condition of probation, and that the decision throughout the term of his probation. was made after review of the evidence and ¶9 An application to revoke probation “must testimony presented. allege facts with such clarity that the defense is ¶13 We find the Appellant in this case pre- able to determine what reason is being submit- sented evidence indicating that his failure to ted as grounds for revocation, enabling prepa- pay District Attorney probation fees was not ration of a defense to the allegation.” Lennox v. willful, and that such evidence was sufficient State, 1984 OK CR 22, ¶ 6, 674 P.2d 1146, 1148- to require further inquiry and findings by the 49. Appellant is correct that his application to District Court. McCaskey, 1989 OK CR 63 at ¶ 4, accelerate alleges he failed to pay prosecution 781 P.2d at 837. We find the District Court erred reimbursement fees to the District Attorney’s by revoking Appellant’s probation without office. However, the application sufficiently al- making findings regarding his ability to pay. Id. leges Appellant’s failure to pay probation fees The District Court’s acceleration of Appellant’s to the District Attorney’s office as the reason deferred judgment and sentencing must be being submitted as grounds for acceleration of reversed, and the matter remanded for further his deferred sentencing and, as shown in the proceedings, including a determination of analysis of Proposition II, enabled Appellant to whether Appellant showed that his failure to prepare a defense to the allegation. Proposition pay the District Attorney probation fees was I is denied. not willful, and whether he had made suffi- ¶10 In Proposition II, Appellant claims his cient good faith efforts to make the payments. judgment and sentencing was accelerated sole- ¶14 In Proposition III, Appellant claims his ly because of his inability to pay fees. Appel- counsel was ineffective for failing to recognize lant contends that the District Court erred and assert the error alleged in Proposition I, when it made no findings concerning his abil- concerning prosecution reimbursement fees ity to pay the fees. versus supervision fees. To establish a claim of ¶11 When the State seeks to revoke probation ineffective assistance of counsel, Appellant based upon a failure to make payments, the must first show that his counsel’s performance

464 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 was deficient, and then he must show the defi- KUEHN, V.P.J.: Dissent cient performance prejudiced the defense. HUDSON, J.: Concur Bland v. State, 2000 OK CR 11, ¶ 112, 4 P.3d 702, ROWLAND, J.: Concur 730-31 (citing Strickland v. Washington, 466 U.S. KUEHN, V.P.J., DISSENTING: 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Because there is no error in Proposition ¶1 Appellant owed $880 in District Attorney I, Appellant hasn’t shown his counsel’s perfor- Supervision fees, and the District Attorney mance was deficient or that his defense was filed an Application to Accelerate his deferred prejudiced. Proposition III is denied. sentence. Interestingly, the State also alleged newly committed offenses as additional grounds ¶15 Appellant’s Proposition IV regarding for accelerating Appellant’s sentence, but it excessiveness of his sentence is moot because never introduced evidence of those offenses at of the resolution of Proposition II. Moreover, the hearing.1 As I have warned before: “To the proper method of raising an excessive sen- revoke an Appellant at a revocation proceed- tence claim after acceleration of a deferred sen- ing by presenting only evidence of failure to tence is by a motion to withdraw plea and pay without any evidence of willfulness, in- petition for writ of certiorari. Hausle v. State, stead of presenting evidence in support of the 2017 OK CR 5, ¶¶ 5-6, 394 P.3d 1278, 1280; more serious violation of committing new Whitaker v. State, 2015 OK CR 1, ¶¶ 6-12, 341 crimes, is a dangerous and inappropriate pro- P.3d 87, 89-90. cedure to adopt.” Winbush v. State, 2018 OK CR DECISION 38, 433 P.3d 1275 (Kuehn, J., dissenting, at ¶ 4). Accelerating Appellant’s probation in full, due ¶16 The order of the District Court of Washi- solely to unfulfilled financial obligations, was ta County accelerating Appellant’s deferred an abuse of discretion under these facts and the judgment and sentencing in Case No. CF-2014- law. I dissent. 182 is REVERSED and the matter is REMAND- ED to the District Court for further proceedings. ¶2 I continue to hold that the trial judge must Pursuant to Rule 3.15, Rules of the Oklahoma inquire into a probationer’s ability to pay Court of Criminal Appeals, Title 22, Ch.18, App. before imprisoning him or her solely for non- (2019), the MANDATE is ORDERED issued payment of fines, costs or assessments. Win- upon the filing of this decision. bush, (Kuehn, J., dissenting) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L.Ed.2d AN APPEAL FROM THE DISTRICT COURT 221 (1983).2 But even if an acceptable judicial OF WASHITA COUNTY, THE HONORABLE inquiry had been made into Appellant’s ability CHRISTOPHER S. KELLY, ASSOCIATE to pay or alternatives to incarceration, the DISTRICT JUDGE judge also erred in not making a detailed find- APPEARANCES IN THE DISTRICT ing, on the record, that his inability to pay was COURT willful. Nevertheless, Appellant did what Win- bush requires him to do: present evidence that Robert S. Keith, Attorney at Law, P.O. Box 1494, his failure to pay was not willful. He presented Clinton, OK 73601, Counsel for Defendant evidence that he was on worker’s disability, Brooke Gatlin, Assistant District Attorney, Wash- was not working, and needed arm surgery that ita County Courthouse, 111 East Main Street, he could not afford. The Majority acknowl- Counsel for the State edges that the Appellant presented evidence on the issue, but only sees this as sufficient to APPEARANCES ON APPEAL warrant “further inquiry” by the court before Nancy Walker-Johnson, Appellate Defense making a formal finding on the issue. Counsel, P.O. Box 926, Norman, OK 73070, ¶3 Further inquiry is unnecessary. After the Counsel for Appellant guidance provided in Winbush, the trial court Mike Hunter, Attorney General of Oklahoma, has nothing more to ask. Both parties present- Diane L. Slayton, Assistant Attorney General, ed their evidence, and the judge made his deci- 313 N.E. 21st Street, Oklahoma City, OK 73105, sion. Although the judge should have made a Counsel for the State finding of willfulness on the record, it is obvi- ous from his decision to accelerate that he OPINION BY: LUMPKIN, J. found Appellant’s evidence unpersuasive; and LEWIS, P.J.: Concur again, there were no alleged probation viola-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 465 tions to consider except failure to pay fees. KUEHN, V.P.J, DISSENTING: Remand for further proceedings is simply invit- ing the trial court to make a finding that would 1. The State abandoned the more serious probation violations by asking the court to dismiss those new non-violent felony charges on not be supported by the record. All paths led to November 30, 2016. Rome, and our appellate review turns on wheth- 2. See also Spann v. State, Case No. RE-2017-706, (unpub. Nov. 8, 2018) (Kuehn, J., concurring in result); Bailey v. State, Case No. RE-2016- er an abuse of discretion occurred. 875, (unpub. May 3, 2018) (Kuehn, J., concurring in result); Cotton v. ¶4 The State presented evidence of non-pay- State, Case No. RE-2016-193, (unpub. Jan. 18, 2018) (Kuehn, J., concurring in part/dissenting in part); Black v. State, Case No. RE-2018-134, (unpub. ment. Appellant presented evidence that he Nov. 29, 2018) (Kuehn, J., concurring in result); Sherman v. State, Case No. did not have the money to pay, and that the RE-2016-642, (unpub. July 12, 2018) (Kuehn, J., dissenting). 3. Under the Social Security Act, 42 U.S.C. § 407(a), “none of the money he did have was disability proceeds. It moneys paid” as part of a Social Security benefit “shall be subject to is illegal for the State to collect money from a execution, levy, attachment, garnishment, or other legal process, or to defendant to pay fines and fees from his gov- the operation of any bankruptcy or insolvency law.” In Philpott v. Essex 3 County Welfare Board, 409 U.S. 413, 415-17, 93 S.Ct. 590, 592-93, 34 L. ernment assistance for disability. What more Ed.2d 608 (1973), the United States Supreme Court held that Social could Appellant do to establish that his failure Security funds were protected from claims by state governments. Oklahoma has not made a specific ruling regarding the protection of to pay was not willful? Does the Majority hope Social Security funds from payment of criminal fines, fees and costs. the State will somehow disprove the defense However, based on this Supreme Court ruling, many other courts have held that states cannot order individuals to pay legal financial obliga- testimony by allowing the record to be re- tions, such as fines, fees and costs, from Social Security benefits. See In opened? We already know the judge is not to re Lampart, 856 N.W.2d 192 (Mich.App. 2014); State v. Eaton, 99 P.3d 661 inquire. Appellant received 90 days in jail and (Mont. 2004). These courts have ruled that legal financial obligations, such as criminal fines, fees and costs, count as “other legal process” felony conviction, and went from two years of under 42 U.S.C. § 407(a). Additionally, in Wash. State Dep’t of Soc. & probation to ten years, all without one gradu- Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 1025, 154 L.Ed.2d 972 (2003), the Supreme Court explained that ated sanction or any alternatives to payment. “other legal process” is a process where “some judicial or quasi-judi- ¶5 An “abuse of discretion” is a clearly errone- cial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to ous conclusion and judgment, one clearly against discharge or secure discharge of an allegedly existing or anticipated the logic and effect of the facts presented. Neloms liability.” Most recently, the Washington Supreme Court found that all legal v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. I financial obligations, not just restitution, are subject to § 407(a) when believe the trial court abused its discretion here, the defendant’s only assets and income are from social security dis- and would vacate the trial court’s order to accel- ability. City of Richland v. Wakefield, 380 P.3d 459 (Wash. 2016). In Wake- field, the defendant’s only income was SSDI benefits and food stamp erate the deferred sentence. assistance, yet the trial court ordered installment payments. In revers- ing the trial court’s decision, the court held that “federal law prohibits LUMPKIN, JUDGE courts from ordering defendants to pay [legal financial obligations] if the person’s only source of income is social security disability.” Id. ¶ 29 1. The State presented no evidence on the alleged probation viola- at 466. Like Eaton and Lampart, the Wakefield court found that ordering tion of having new felony charges filed in the District Court of Washi- fine payments from an individual whose sole income is SSDI violates ta County for Knowingly Concealing Stolen Property. § 407(a) because the order is a judicial mechanism by which the defendant’s Social Security income is transferred to another in payment of a liability. Id. 465-66. Accordingly, the court concluded that the state was prohibited from ordering payment against the defendant. Id.

466 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 467 Bar news Judicial Nominating Commission Elections: Nomination Period Opens

HE SELECTION OF qualified districts as they existed in 1967. (As OBA PROCEDURES GOVERNING Tpersons for appointment to you know, the congressional districts THE ELECTION OF LAWYER the judiciary is of the utmost were redrawn in 2011.) Elections are MEMBERS TO THE JUDICIAL importance to the administration of held each odd-numbered year for NOMINATING COMMISSION justice in this state. Since the adop- members from two districts. 1. Article 7-B, Section 3, of the tion of Article 7-B to the Oklahoma Oklahoma Constitution requires Constitution in 1967, there has been 2019 ELECTIONS elections be held in each odd num- significant improvement in the qual- This year there will be elec- bered year by active members of ity of the appointments to the bench. tions for members in Districts 3 the Oklahoma Bar Association to Originally, the Judicial Nominating and 4. District 3 is composed of 22 elect two members of the Judicial Commission was involved in counties in the south and south- Nominating Commission for six- the nomination of justices of the eastern part of the state. District 4 year terms from Congressional Supreme Court and judges of the is composed of 12 counties in the Districts as such districts existed at Court of Criminal Appeals. Since central and the southwestern part the date of adoption of Article 7-B of the adoption of the amendment, the of the state, plus a portion of east- the Oklahoma Constitution (1967). Legislature added the requirement ern Oklahoma County. (See the 2. Ten (10) active members that vacancies in all judgeships, sidebar for the complete list.) of the association, within the appellate and trial, be filled by Lawyers desiring to be candi- Congressional District from which a appointment of the governor from dates for the Judicial Nominating member of the commission is to be nominees submitted by the Judicial Commission positions have until elected, shall file with the Executive Nominating Commission. Friday, May 17, 2019, at 5 p.m. to Director a signed petition (which The commission is composed submit their Nominating Petitions. may be in parts) nominating a can- of 15 members. There are six Members can download petition didate for the commission; or, one non-lawyers appointed by the forms at www.okbar.org/jnc. or more County Bar Associations governor, six lawyers elected by Ballots will be mailed on June 7, within said Congressional District members of the bar, and three 2019, and must be returned by may file with the Executive Director at large members, one selected June 21, 2019, at 5 p.m. a nominating resolution nominating by the Speaker of the House of It is important to the admin- such a candidate for the commission. Representatives; one selected by the istration of justice that the OBA 3. Nominating petitions must be President Pro Tempore of the Senate; members in the Third and Fourth received at the Bar Center by 5 p.m. and one selected by not less than Congressional Districts become on the third Friday in May. eight members of the commission. informed on the candidates for the 4. All candidates shall be advised All serve six-year terms, except the Judicial Nominating Commission of their nominations, and unless members at large who serve two- and cast their vote. The framers they indicate they do not desire year terms. Members may not suc- of the constitutional amendment to serve on the commission, their ceed themselves on the commission. entrusted to the lawyers the name shall be placed on the ballot. The lawyer members are elected responsibility of electing qualified 5. If no candidates are nominated from each of the six congressional people to serve on the commission. for any Congressional District, the

468 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 56 | APRIL 2019 THE OKLAHOMA BAR JOURNAL Board of Governors shall select at 8. Unless one candidate receives tabulated and certified at 9 a.m. on least two candidates to stand for at least 40 percent of the votes cast, the Monday following the third election to such office. there shall be a runoff election Friday in July. 6. Under the supervision of between the two candidates receiv- 11. Those elected shall be imme- the Executive Director, or his ing the highest number of votes. diately notified, and their function designee, ballots shall be mailed 9. In case a runoff election is neces- certified to the Secretary of State to every active member of the sary in any Congressional District, run- by the President of the Oklahoma association in the respective off ballots shall be mailed, under the Bar Association, attested by the Congressional District on the first supervision of the Executive Director, Executive Director. Friday in June, and all ballots must or his designee, to every active member 12. The Executive Director, or his be received at the Bar Center by of the association therein on the fourth designee, shall take possession of and 5 p.m. on the third Friday in June. Friday in June, and all runoff ballots destroy any ballots printed and unused. 7. Under the supervision of the must be received at the Bar Center by 13. The election procedures, with the Executive Director, or his designee, 5 p.m. on the third Friday in July. specific dates included, shall be pub- the ballots shall be opened, tabulated 10. Under the supervision of the lished in the Oklahoma Bar Journal in the and certified at 9 a.m. on the Monday Executive Director, or his designee, three issues immediately preceding the following the third Friday of June. the runoff ballots shall be opened, date for filing nominating resolutions.

District No. 3 District No. 4 Atoka Caddo NOTICE Bryan Cleveland Carter Comanche Choctaw Grady Judicial Nominating Commission Elections Coal Greer Cotton Harmon Congressional Districts 3 And 4 Garvin Jackson Haskell Kiowa Nominations for election as members of the Judicial Nominating Commission Hughes McClain Jefferson Oklahoma (Part)* from Congressional Districts 3 and 4 (as they existed in 1967) will be accepted Johnston Pottawatomie by the Executive Director until 5 p.m., Friday, May 17, 2019. Ballots will be Latimer Tillman LeFlore Washita mailed June 7, 2019, and must be returned by 5 p.m. on June 21, 2019. Love Marshall *Part of Oklahoma McCurtain County Murray Including: Pittsburg Choctaw Pontotoc Harrah Pushmataha Luther Seminole Midwest City Stephens Newalla Nicoma Park Spencer South of 89th Street

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 469 THE OKLAHOMA BAR JOURNAL APRIL 2019 | 57 Calendar of Events

April 23 OBA Access to Justice Committee meeting; 10 OBA Estate Planning, Probate and Trust 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with Section meeting; 12 p.m.; Oklahoma Bar Center, videoconference; Contact Rod Ring 405-325-3702 Oklahoma City with videoconference; Contact A. Daniel Woska 405-657-2271 24 OBA Immigration Law Section meeting; 11:00 a.m.; Oklahoma Bar Center, Oklahoma City with video- 14 OBA Legislative Monitoring Committee conference; Contact Lorena Rivas 918-585-1107 meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Angela Ailles Bahm 25 OBA Professionalism Committee meeting; 405-475-9707 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Linda G. Scoggins 15 OBA Family Law Section meeting; 11:30 a.m.; 405-319-3510 Oklahoma Bar Center, Oklahoma City with videoconference; Contact Amy E. Page 918-208-0129 26 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma OBA Indian Law Section meeting; 12 p.m.; City; Contact Gina Hendryx 405-416-7007 Oklahoma Bar Center, Oklahoma City with teleconference; Contact Wilda Wahpepah 405-321-2027 16 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Telana McCullough 405-267-0672 17 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000

OBA Lawyers Helping Lawyers Assistance Program Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Hugh E. Hood 918-747-4357 or Jeanne Snider 405-366-5466

OBA Juvenile Law Section meeting; 3:30 p.m.; May Oklahoma Bar Center, Oklahoma City with videoconference; Contact Tsinena Thompson 405-232-4453 2 OBA Lawyers Helping Lawyers Discussion Group; 6 p.m.; Office of Tom Cummings, 701 NW 18 OBA Young Lawyers Division meeting; 10 a.m.; 13th St., Oklahoma City, OK 73012; RSVP to Oklahoma Bar Center, Oklahoma City; Contact Jeanie Jones 405-840-0231 Brandi Nowakowski 405-275-0700 3 OBA Alternative Dispute Resolution Section 21 OBA Bench and Bar Committee meeting; meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma 12 p.m.; Oklahoma Bar Center, Oklahoma City with City with teleconference; Contact Clifford R. Magee teleconference; Contact David B. Lewis 405-556-9611 918-747-1747 or David Swank 405-325-5254 7 OBA Government and Administrative Law 31 OBA Professional Responsibility Commission Section meeting; 4 p.m.; Oklahoma Bar Center, meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma Oklahoma City with teleconference; Contact City; Contact Gina Hendryx 405-416-7007 Melissa L. Blanton 405-521-6600

470 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Opinions of Court of Civil Appeals

2019 OK CIV APP 22 through Monday at 9:00 a.m. and alternating holidays. The court ordered Beck to pay $48.47 IN THE MATTER OF: CORY DUANE per month for child support. BECK, Plaintiff/Appellee, vs. MICHELLE CANNON, Respondent, and DANNY ¶4 On October 11, 2013, the trial court filed a MICHAEL CRESSWELL, Intervenor/ “Decree of Paternity and Order of Custody, Appellant. Visitation and Child Support.” The order noted Beck and Cannon appeared pro se and approved Case No. 116,187. March 11, 2019 the terms of the decree. The court found it had APPEAL FROM THE DISTRICT COURT OF jurisdiction over the parties and the minor TULSA COUNTY, OKLAHOMA child and that Beck is the child’s biological father as determined by DNA testing. The HONORABLE STEPHEN R. CLARK, court adjudicated Beck as EWB’s father and TRIAL JUDGE ordered EWB’s birth certificate amended to AFFIRMED identify Beck as his father. The court awarded Beck and Cannon joint custody of EWB, with Megan D. Martin, Becki A. Murphy, MURPHY Cannon having primary physical custody. The FRANCY, PLLC, Tulsa, Oklahoma, for Plain- joint custody plan provided Beck would have tiff/Appellee visitation every Friday after school until Blake M. Feamster, MOYERS MARTIN LLP, “Monday morning at school” and Cannon Tulsa, Oklahoma, for Intervenor/Appellant would have visitation every Monday after school through “Friday morning at school.” JANE P. WISEMAN, VICE-CHIEF JUDGE: The joint custody plan also set out a holiday ¶1 Danny Michael Cresswell appeals a trial visitation schedule. The trial court ordered court decision denying his motion to dismiss Beck to pay child support in the amount of this paternity action. We are asked in this $48.47 per month. appeal to address whether this was error. After ¶5 On August 4, 2014, Beck filed a motion to review, we affirm the trial court’s decision. modify custody and child support alleging a FACTS AND PROCEDURAL change of condition. He asserted EWB “has BACKGROUND been residing with [Beck] and [Cannon] 50/50 visitation (2/2/3) since May 30, 2014.” He ¶2 Cory Duane Beck filed a petition for alleged EWB “has been enrolled in Sand Springs paternity determination on June 26, 2013, alleg- Public Schools under [Beck’s] address” and ing he was the natural father of EWB, born in EWB “had excessive absences and tardiness at March 2009. EWB’s mother, Michelle Christine school last year during [Cannon’s] time.” Cannon, also signed the petition. Beck stated that he and EWB resided in Sand Springs and ¶6 On September 16, 2016, Cannon filed a Cannon resided in Broken Arrow. He asserted motion to vacate alleging that, at the time of Cannon did not dispute his fatherhood of EWB EWB’s birth, she was married to Cresswell. She and genetic test results showed he cannot be alleged Cresswell is EWB’s presumptive father, excluded as EWB’s biological father. He asked has parental rights, and is a necessary party to the trial court to enter orders determining he is the proceedings. She claimed Beck did not EWB’s natural father, authorizing the State of timely bring his paternity action because he Oklahoma to amend EWB’s birth certificate to waited more than 4 years to establish paternity. list him as EWB’s natural father, and ordering ¶7 In his response and amended response, that EWB’s birth certificate be amended to cor- Beck alleged Cresswell executed a denial of rect his name. paternity on February 24, 2011. ¶3 A temporary order, filed July 25, 2013, ¶8 Cresswell filed a special appearance on indicated Beck and Cannon entered into an October 24, 2016, “as a necessary third-party agreement for joint custody of EWB, with Beck pursuant to 10 O.S. § 7700-607.” A week later, receiving visitation every Friday from 6:00 p.m.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 471 Cresswell filed a motion to dismiss alleging and requesting the paternity, custody, and that “the relief requested fails to state a claim child support orders be vacated as a result.” upon which relief can be granted because the ¶11 Beck asserted Cresswell was not a pre- relief requested is time barred pursuant [to] 10 sumed father at the time the action was filed O.S. § 7700-607.” He alleged he married Can- because Beck had signed and filed an AOP and non in January 2003 and EWB was born in Cresswell had signed a DOP before EWB March 2009. Cresswell was listed as EWB’s turned two years-old. He further argued Cress- father on his birth certificate. He alleged he well is equitably estopped from asserting executed a denial of paternity “[o]n February paternity based on the position he took in his 24, 2011, while mobilized with the military in divorce petition. Beck also asserted it is not in Fort Dix, New Jersey, based upon the knowl- EWB’s best interest to dismiss the paternity edge that he was not the biological father of action. [EWB], without being represented by counsel, and without any understanding that he had ¶12 Cresswell asserted that, because Beck any legal rights to [EWB].” Cresswell’s and did not execute the AOP until October 22, 2011, Cannon’s divorce decree from September 13, which was after EWB turned two, the DOP and 2011, “indicated that there were no children of AOP are not valid. the marriage.” However, Cresswell said he has ¶13 A hearing on Cresswell’s motion to dis- maintained a relationship and regularly exer- miss was held on May 1, 2017. Cresswell testi- cised visitation with EWB. He alleged it was fied EWB was born during his marriage to not until after EWB turned four years-old that Cannon and EWB’s last name on his birth cer- Beck filed his petition for paternity. Cresswell tificate was originally Cresswell. Cannon and claimed Beck did not execute an acknowl- Cresswell were divorced in 2011. Neither party edgement of paternity (AOP) before filing his was represented by or consulted with an attor- petition. Cresswell argued that his denial of ney in the divorce proceedings. Cresswell paternity (DOP) is not valid without a valid learned that he was not EWB’s biological father acknowledgement of paternity from Beck. He in late August or September 2010. He testified asserted, therefore, that he is still the presumed he executed a DOP in January or February father of EWB. He further asserted that the trial 2011. When asked why he executed the DOP, court did not have jurisdiction because Beck he stated: “Mr. Beck was going to take respon- failed to bring an action to determine paternity sibility of the child. Michelle Cannon also within two years of EWB’s birth. wanted him to be the father, and I thought that, since he was the biological father, that he ¶9 Cresswell also filed a “Special Motion to would be responsible.” He claimed he did not Intervene as of Right,” which the trial court know until after he executed the DOP that he granted. had “rights to the child.” He was never served a petition in the paternity case. Cresswell stat- ¶10 In his response to the motion to dismiss, ed he has ongoing visitation and consistent Beck stated that he and Cannon both signed an contact with EWB. AOP. Cannon dated her signature October 22, 2009, but Beck dated his signature October 22, ¶14 On cross-examination, Cresswell testi- 2011. Beck alleged that in the petition for fied that he stated in the petition for divorce divorce, Cresswell stated, “There were no chil- that no children were born of the marriage dren born to or adopted by the Parties” and the because he understood at the time that no chil- divorce decree also provides no children were dren were born of the marriage. He also made born of Cannon’s and Cresswell’s marriage. a declaration to the court in the divorce pro- Beck noted that the decree of paternity entered ceedings that no children were born of the mar- on October 11, 2013, granted him visitation riage. When he was asked if he knew “all every weekend, but after the paternity decree along” that the paternity action was pending, was entered, he “ended up having physical he replied, “Yes.” Cresswell has not and does custody of the minor child at least half of the not pay child support for EWB, and EWB does time.” According to Beck, after he filed a not call Cresswell “Dad.” motion to modify the decree in August 2014, ¶15 Beck testified he had a paternity test Cannon “changed her legal position, suddenly performed when EWB was 15 months-old, arguing that the minor child had a presumed and he is EWB’s biological father. He pays father that was not noticed of the proceedings child support for EWB, and EWB calls him

472 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 “Dad.” Cresswell voluntarily sent him the ¶20 The trial court announced its decision on DOP which Cresswell executed within the first May 3, 2017. The court made findings that we two years of EWB’s life. When he questioned now summarize and quote. EWB was born on Cresswell about why he was going to claim March 28, 2009. On February 24, 2011, Cress- paternity of the child, Cresswell told him “he well executed his DOP and filed for divorce wanted to work as a mediator between [Beck] from Cannon on August 19, 2011. “In the peti- and [Cannon] because we couldn’t get along tion and in the decree, [Cresswell] alleged that on the benefit of [EWB] and what’s best for no children were born of this marriage.” Beck [EWB].” executed the AOP on October 22, 2011. On June ¶16 On cross-examination, Beck stated that 23, 2013, Beck and Cannon filed a joint petition Cannon “said from the beginning” he was for paternity. On October 11, 2013, Beck and EWB’s biological father, but he did not have Cannon filed an agreed decree of paternity that definite proof until 15 months later after a established joint custody, set child support, set DNA test. Beck’s signature on the AOP is dated a visitation schedule, and provided EWB’s last October 22, 2011. Beck did not file the DOP name should be changed to Beck. Beck had with DHS after Cresswell sent it to him. already been added to EWB’s birth certificate as his father. Although Cresswell was aware of ¶17 Cannon testified that she also led the the paternity action, he did not receive legal court in the divorce case to believe there were notice of the proceedings. no children born of her marriage with Cress- well. She did not object to EWB’s last name ¶21 The court found that the issues present- being changed to Beck, and she filed the pater- ed in this case are resolved by 10 O.S. §§ 7700- nity action jointly with Beck. According to 304, 7700-305. The court concluded: Cannon, Cresswell was well aware the “pater- Section 7700-304 provides that acknowl- nity action was going on.” She agreed that in edgements and denials need not be execut- the paternity action, she “swore under penalty ed simultaneously, and that neither is valid of perjury then that Mr. Beck was the father of until both are executed. the child.” She has been receiving child support from Beck since 2013. Cannon testified she By executing the denial of paternity, [Cress- could not have signed the AOP on October 22, well] reserved his option to withdraw his 2009, but she did sign it. denial. [Cresswell] has never requested that the denial be withdrawn. Had it been ¶18 On cross-examination, Cannon testified withdrawn prior to [Beck’s] execution of the date appearing on her AOP signature was the acknowledgement, then [Cresswell] wrong because she and Beck “weren’t even would have had a legal position to claim to discussing this in October of 2009.” She said be the presumed father. she did not intend to mislead the court about paternity, and she did not serve Cresswell Section [7700-305] provides that if a denial notice of the paternity action. is executed by the presumed father, then when a valid acknowledgement is execut- ¶19 Cresswell testified he first saw the legal ed, the execution of the acknowledgement documents “fairly shortly after they were offi- makes the denial valid. And the combina- cially filed” because Cannon had him “look at tion of the two is equivalent to an adjudica- them before for her.” Cresswell stated: “My tion of the nonpaternity of the presumed assumption at the time was that the paternity father ([Cresswell] in this instance), and issue had already been resolved, so, again, I’m discharges him from all rights and duties not a lawyer, but my understanding was just of the child. simply a custody thing, and that Mr. Beck had already taken care of the paternity portion of ¶22 The court found that Cresswell “is not it.” Although he was aware of the name change the presumptive father and has no rights with shortly after it occurred, he did not vocalize an regard to the minor child.” The court denied objection after he knew of the name change, Cresswell’s motion to dismiss and also denied the custody determination, or the paternity Cannon’s motion to vacate. The trial court filed action. He did not tell Beck he wanted to be an order on June 14, 2017, granting Cresswell’s EWB’s dad. Cresswell stated that when the motion to intervene, granting a hearing on the paternity action was filed, he had no idea he motion, denying his motion to dismiss, and had any legal rights to custody of EWB. denying Cannon’s motion to intervene.

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 473 ¶23 Cresswell appeals. 4. The denial is signed not later than two (2) years after the birth of the child. STANDARD OF REVIEW (Footnotes omitted.) Cresswell admitted he ¶24 Cresswell’s motion to dismiss was titled signed a DOP on February 24, 2011, and that he “Motion to Dismiss Pursuant to 10 O.S. § 7700- sent the DOP to Beck. Thus the DOP was exe- 607,” which addresses limitations of actions cuted within two years of EWB’s birth on and states, “Except as otherwise provided in March 28, 2009. After he signed the DOP, subsection B of this section, a proceeding Cresswell represented in his divorce proceed- brought by a presumed father, the mother, or ings that no children were born of his marriage another individual to adjudicate the parentage with Cannon. of a child having a presumed father shall be commenced not later than two (2) years after ¶27 Beck then signed an AOP on October 22, the birth of the child.”1 10 O.S.2011 § 7700- 2011. Title 10 O.S.2011 § 7700-304 provides in 607(A). Therefore, Cresswell’s motion to dis- relevant part: miss was based on his assertion the claim was A. An acknowledgment of paternity and a barred by the statute of limitations. denial of paternity may be executed sepa- ¶25 “’A statute-of-limitations issue ordinari- rately or simultaneously. If the acknowl- ly presents a mixed question of fact and law.’” edgment and denial are both necessary, Volkl v. Byford, 2013 OK CIV APP 73, ¶ 4, 307 neither is valid until both are executed. P.3d 409 (quoting Sneed v. McDonnell Douglas, B. An acknowledgment of paternity or a 1999 OK 84, ¶ 9, 991 P.2d 1001). However, denial of paternity may be signed before where the “matter was presented as a motion the birth of the child. to dismiss . . . the standard of review before the court is de novo.” Volkl, 2013 OK CIV APP 73, ¶ C. Subject to subsection A of this section, an 4 (citing Hayes v. Eateries, Inc., 1995 OK 108, ¶ 2, acknowledgment of paternity or denial of 905 P.2d 778). paternity takes effect on the birth of the child or the execution of the document, ANALYSIS whichever occurs later. ¶26 The Oklahoma Uniform Parentage Act (Emphasis added.) Pursuant to the terms of § provides, “A man is presumed to be the father 7700-304, the AOP took effect on the execution of a child if . . . [h]e and the mother of the child of the document, which was October 22, 2011. are married to each other and the child is born We agree with the trial court that Cresswell’s during the marriage.” 10 O.S.2011 § 7700-204 DOP became valid after Beck executed his (A)(1). “A presumed father may sign a denial AOP. We further agree with the trial court that of his paternity.” 10 O.S.2011 § 7700-303. The the combination of the AOP and DOP was denial, however, is only valid if the following “equivalent to an adjudication of the nonpater- requirements are met: nity of the presumed father ([Cresswell] in this 1. An acknowledgment of paternity signed, instance), and discharges him from all rights or otherwise authenticated, by another and duties of the child.” Further indication that man is filed pursuant to Section 20 of this Cresswell thought his rights and duties to EWB act; were discharged was Cresswell’s assertion in his petition for divorce that “[t]here were no 2. The denial is in a record, and is signed, children born to or adopted by the Parties” and or otherwise authenticated, under penalty that he paid no child support for the child. of perjury; ¶28 Cresswell asserts on appeal: Cresswell is 3. The presumed father has not previously: the “presumed father of the Minor Child be- a. acknowledged his paternity, unless the cause . . . the Acknowledgement of Paternity is previous acknowledgment has been re- void.” Pursuant to 10 O.S. § 7700-302(B)(1), “[a] scinded pursuant to Section 15 of this act or n Acknowledgement of Paternity shall be void successfully challenged pursuant to Sec- . . . unless a denial of paternity . . . is filed with tion 16 of this act, or the State Department of Health, Division of Vital Records.” (Emphasis omitted.) The full b. been adjudicated to be the father of the text of § 7700-302(B) states: “An acknowledg- child; and ment of paternity shall be void if it: 1. States

474 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 that another man is a presumed father, unless a [The] presumption of paternity cannot be denial of paternity signed or otherwise authen- displaced absent either (1) an adjudication ticated by the presumed father is filed with the of his non-paternity by a court of compe- State Department of Health, Division of Vital tent jurisdiction (a) in an action for divorce Records.” 10 O.S.2011 § 7700-302. This provi- as permitted by 43 O.S. §109.2, or (b) as sion appears to conflict in part with § 7700- mandated by §7700-204(B), in a timely 304(C), which provides, “an acknowledgment commenced action under 10 O.S. §7700- of paternity or denial of paternity takes effect 607, or (2) a timely, validly executed and on the birth of the child or the execution of the filed denial of paternity as prescribed by 10 document, whichever occurs later.” O.S. §7700-303 and §7700-305(B). ¶29 In Bates v. Copeland, 2015 OK CIV APP 30, Id. The Court found no trial court error in 347 P.3d 318, this Court concluded an AOP exe- vacating the AOP executed by the mother and cuted by the mother and the purported biologi- purported biological father. Id. ¶ 18. cal father of a child was not void but voidable ¶31 This case differs from Bates in that Can- where the two signed an AOP that incorrectly non and Beck executed the AOP indicating stated the mother was not married at the time of Mother was married at the time of conception conception or birth. The purported biological or birth and Cresswell executed the DOP. The father filed an action to determine paternity. Id. only thing alleged not to have been done here ¶ 1. The mother’s husband “filed a Notice of that was required by statute was Beck’s failure Another Action Pending, i.e., the action for dis- to file the AOP, with an attached DOP, with the solution of the marriage, and Motion to Stay State Department of Health, Division of Vital proceedings in the paternity action.” Id. ¶ 6. Records. Husband later filed a motion to vacate the AOP and a motion to dismiss the paternity proceed- ¶32 The fact that Cresswell’s and Cannon’s ing, which the trial court granted. Id. ¶¶ 6, 8. divorce decree states there were no children born of the marriage is not determinative of the ¶30 The purported biological father argued issue before us. In Clark v. Edens, 2011 OK 28, ¶ on appeal “that the AOP he and Mother exe- 7, 254 P.3d 672, the Supreme Court noted: “A cuted, where they falsely stated Mother was pleading or other representation that informs not married at the time of conception, is, at the court that there are no children of the mar- best, voidable under 10 O.S. § 7700-302(C), not riage simply removes such issues from deter- void under 10 O.S. § 7700-302(B).” Id. ¶ 9. Sec- mination.” The Court concluded: “A finding in tion § 7700-302(C) provides: “An acknowledg- a divorce decree that there are no children of ment of paternity is voidable if it falsely denies the marriage would not necessarily resolve the the existence of a presumed, acknowledged, or parties’ relationship to an undisclosed child adjudicated father of the child.” 10 O.S.2011 § born during the marriage and subject to the 7700-302. The Court noted, statutory presumption of paternity.” Id. “[A]n act declared to be void by statute ¶33 Also important to our analysis here is the which is malum in se or against public poli- Clark Court’s acknowledgement that “the par- cy is utterly void and incapable of ratifica- ents are not the only parties affected by the tion, but an act or contract so declared presumption of paternity.” Id. ¶ 11. The pre- void, which is neither wrong in itself nor sumption of paternity “is a matter of public against public policy, but which has been policy intended for the benefit and protection declared void for the protection or benefit of children ‘born during the marriage.’” Id.; see of a certain party, or class of parties, is also Stevens v. Griggs, 2013 OK CIV APP 104, ¶ voidable only and is capable of ratification 1, 362 P.3d 662 (stating the Oklahoma Uniform by the acts or silence of the beneficiary or Parentage Act “unequivocally states a strong beneficiaries . . . such an act or contract is public policy intended to benefit and protect valid until voided, not void until validated, the parentage of children born during a mar- and it is subject to ratification and estop- riage”). The Clark Court instructed: “A right pel.’” (Citations omitted.) based on a statute that contains provisions Id. n. 1. The Court of Civil Appeals found that founded upon public policy cannot be waived the mother’s husband was the child’s pre- by a private party, if such waiver thwarts the sumed father. Id. ¶ 15. legislative policy the statute was designed to effectuate.” Clark, 2011 OK 28, ¶ 11. The statute

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 475 protected EWB as intended because Beck ac- port for him. Cresswell admitted he had actual knowledged paternity after Cresswell executed knowledge of the paternity proceedings and a DOP and Beck assumed his parental duties. that he looked at the legal documents “fairly Keeping in mind the strong public policy shortly after they were officially filed.” Al- served by the statute, this is a situation in though Cresswell knew the paternity action which the AOP and DOP should be viewed as was ongoing, he did not claim that his DOP voidable, not void. was invalid before the entry of the trial court’s decree of paternity, and instead waited more ¶34 Title 10 O.S.2011 § 7700-305 provides: than three years after the decree was entered to A. Except as otherwise provided in Sec- file his motion to dismiss. Even if the AOP and tions 15 and 16 of this act, a valid acknowl- DOP were not valid, the trial court entered a edgment of paternity signed by both par- decree of paternity in a proceeding of which ents is equivalent to an adjudication of Cresswell had actual knowledge. After de novo paternity of a child and confers upon the review of this case, we conclude the trial court acknowledged father all of the rights and did not err in denying Cresswell’s motion to duties of a parent. dismiss the paternity proceeding. B. Except as otherwise provided in Sections ¶36 We further conclude Cresswell’s statute 15 and 16 of this act, a valid denial of pater- of limitations defense was not timely raised. nity by a presumed father when executed Although he admitted he had actual notice of in conjunction with a valid acknowledgment the paternity action, he waited three years to of paternity is equivalent to an adjudication file a motion to dismiss the proceedings. In of the nonpaternity of the presumed father fact, he waited to file his motion to dismiss and discharges the presumed father from all until well after the order establishing paternity rights and duties of a parent. had been entered. Cresswell cites no statute or case law that supports his attempt to dismiss a (Footnote omitted.) claim based on a statute of limitations defense ¶35 Beck’s alleged failure to file the AOP and after a final order, in this case an order estab- DOP cannot serve as a basis for dismissing the lishing paternity, has been entered. paternity action more than three years after the CONCLUSION trial court entered its decree of paternity. First, Cresswell admitted he executed the DOP and ¶37 Finding no error, we conclude, as the sent it to Beck. Beck and Mother voluntarily trial court did, that Cresswell’s motion to dis- and jointly executed an AOP. Cresswell claims miss should be denied, and we affirm that Beck’s failure to file the document with the decision. State Department of Health voids the AOP and ¶38 AFFIRMED. DOP. We disagree with Cresswell that any error in this regard automatically made the BARNES, P.J., and THORNBRUGH, J. (sitting AOP and DOP void; at best, they would be by designation), concur. considered voidable at any point before the JANE P. WISEMAN, VICE-CHIEF JUDGE: trial court entered the decree of paternity. It is undisputed that Cresswell made no attempt to 1. Title 10 O.S. § 7700-607 was amended in 2014, but the quoted withdraw his DOP and that he never held him- portion of the statute remains unchanged. In his motion to dismiss, Cresswell argued that the subsection added to § 7700-607 by the 2014 self out to be EWB’s father or paid child sup- amendment does not apply in this case.

476 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Legal Aid Services of Oklahoma, Inc. presents A SPRING SEMINAR FOR OKLAHOMA ATTORNEYS Tuesday, May 7, 2019 Conference Center, OSU Tulsa, 700 North Greenwood, Room 150 MCLE Credit of 6 Hours, including One hour of Ethics FREE for Oklahoma Attorneys To register, go to: www.probono.net/ok/cle AGENDA

8:30 a.m. Registration 9:00 - 9:50 “How to Handle a Family Law Case if the Opposing Party is Unrepresented,” Family Law Attorneys with Legal Aid Services 9:50-10:05 BREAK 10:05-10:55 “The Impact of Taxes on Low-Income Clients” Brette Gollihave, Legal Aid Services 10:55 - 11:10 BREAK 11:10 – 12:00 “The Challenges of Unrepresented Litigants/Ethical Duties if Unrepresented Litigant is Involved in Your Case” OBA Ethics Counsel Joseph Balkenbush 12.00 – 1:00 LUNCH (on your own) 1:00 – 1:50 “Criminal Law for Civil Lawyers” Shena Burgess, Smiling, Smiling & Burgess 1:50 – 2:00 BREAK 2:00 – 2:50 “A Review of ICWA Guardianship Law and Procedures” C. Steven Hager at Oklahoma Indian Legal Services, Inc. 2:50-3:00 BREAK 3:00 – 4:00 “The Best and Worst Way to Interact With Pro Se Litigants” Judge Lara Russell, Rogers County, Judge Stephen Clark, Tulsa County, and Judge Terry Bitting, Tulsa County

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 477 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS instant appeal. The Petition for writ of certio- Thursday, March 28, 2019 rari is GRANTED, the trial court’s order denying Duvall’s motion to withdraw plea is RE-2017-923 — Decarlo Terrell Mitchell, REVERSED, and this cause is REMANDED to Appellant, appeals from the revocation of his the District Court for a new hearing on Duvall’s ten year suspended sentence in Case No. motion to withdraw plea pursuant to the guide- CF-2001-4533 in the District Court of Oklaho- lines set forth in the opinion. Opinion by: Lewis, ma County, by the Honorable Ray C. Elliott, P.J.; Kuehn, V.P.J., concurs; Lumpkin, J., concurs; District Judge. AFFIRMED. Opinion by: Lewis, Hudson, J., concurs; Rowland, J., concurs. P.J.; Kuehn, V.P.J., concurs; Lumpkin, J., concurs; Hudson, J., concurs; Rowland, J., concurs. Thursday, April 4, 2019 F-2017-1158 — Jason Brady Sain, Appellant, RE-2017-484 — Jermaine Thrash, Appellant, was tried by jury for the crimes of Count 1, first appeals from the revocation of his ten year degree rape; Count 2, kidnapping; and Count suspended sentence in Case No. CF-2005-4341 3, domestic abuse, all after former conviction in the District Court of Oklahoma County, by of two or more felonies in Case No. CF-2016- the Honorable Michele D. McElwee, District 338 in the District Court of Grady County. The Judge. AFFIRMED. Opinion by: Kuehn, V.P.J.; jury returned a verdict of guilty and set pun- Lewis, P.J., concur; Lumpkin, J., concur; Hud- ishment at life imprisonment on Counts 1 and son, J., concur; Rowland, J., concur. 3, and twenty years imprisonment on Count 2. F-2017-970 The trial court sentenced accordingly and — Angelica C. Coats, appeals from ordered the sentences served consecutively. the acceleration of her deferred judgment and From this judgment and sentence Jason Brady sentencing in Case No. CF-2012-445 in the Dis- Sain has perfected his appeal. The judgment trict Court of Mayes County, by the Honorable and sentence is AFFIRMED. Opinion by: Lewis, Rebecca J. Gore, Special Judge. AFFIRMED. P.J.; Kuehn, V.P.J., concurs; Lumpkin, J., con- Opinion by: Lumpkin, J.; Lewis, P.J., Concur; curs in results; Hudson, J., concurs; Rowland, Kuehn, V.P.J., Dissent; Hudson, J., Concur; J., concurs. Rowland, J., Concur. RE-2017-964 C-2017-648 — Denisa Dawn Duvall, Peti- — On May 19, 2004, Appellant tioner, entered a negotiated plea of no contest Antonio Depew Rhone, represented by coun- to Count 1, domestic assault and battery in the sel, entered a guilty plea to Count 1, Robbery presence of a minor, a misdemeanor in the Dis- with a Firearm and Count 2, Kidnapping in in trict Court of Kay County, Case No. CM-2018- Oklahoma County Case No. CF-2003-4985. 136. The Honorable David R. Bandy, Associate Rhone was sentenced to twenty (20) years, for District Judge, accepted the plea and ordered a Count 1 with all but the first twelve (12) years two-year deferred sentence under terms, includ- suspended, and ten (10) years for Count 2, the ing one year of DA supervision, up to fifty-two sentences to be served concurrently. On July (52) weeks of domestic violence counseling, 19, 2016, the State filed an Application to random urinalysis testing, and various costs Revoke Rhone’s suspended sentence alleging and fees with payments deferred for six numerous probation violations, including the months. Duvall filed a pro se motion to with- commission of several new offenses. On July draw the plea that included a request for an 10, 2017 the District Court of Oklahoma Coun- attorney. The district court denied the motion ty, the Honorable Timothy R. Henderson, to withdraw plea after an evidentiary hearing District Judge, revoked Rhone’s suspended sen- wherein Duvall again appeared pro se. There is tence, and on September 5, 2017, ordered the no record indicating whether she was offered suspended sentence revoked in full. The revo- counsel as requested, nor is there evidence of a cation of Rhone’s suspended sentence in Okla- waiver of right to counsel. The trial court ap- homa County Case No. CF-2003-4985 is AF- pointed counsel to help Duvall timely file the FIRMED. Opinion by: Hudson, J.; Lewis, P.J.,

478 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Concurs; Kuehn, V.P.J., Concurs in Results; Case No. CF-2016-147 in the District Court of Lumpkin, J., Concurs; Rowland, J., Recuses. Craig County. The jury returned a verdict of guilty and recommended as punishment thirty F-2017-1259 — On March 13, 2017, Appellant years imprisonment and a $5,000.00 fine on Houston Everett Matthew Davis, represented each count. The trial court sentenced accord- by counsel, entered a guilty plea to Count I, ingly and ordered the sentences to be served Possession of a Controlled Dangerous Sub- consecutively. From this judgment and sen- stance (after former conviction of two or more felonies), Count 2, Unlawful Possession of tence Jerry Don Battenfield has perfected his Drug Paraphernalia, and Count 3, Driving with appeal. The Judgment and Sentence of the Suspended License in Lincoln County Case No. District Court is AFFIRMED. Opinion by: CF-2016-222. Sentencing was deferred pending Lewis, P.J.; Kuehn, V.P.J., concurs in results; Davis’s completion of the Pottawatomie Coun- Lumpkin, J., concurs; Hudson, J., concurs; ty Drug Court program. On August 9, 2017, the Rowland, J., concurs. State filed an Application to Terminate Davis F-2017-849 — Samuel Cosby, Appellant, was from Drug Court. On November 21, 2017, the tried by jury for the crime of assault and bat- Honorable Cynthia Ferrell Ashwood, Associate tery with a deadly weapon in Case No. CF-2015- District Judge, terminated Davis’s Drug Court 6696 in the District Court of Oklahoma County. participation and sentenced him as specified The jury returned a verdict of guilty and set in his plea agreement. From this judgment punishment at life imprisonment. The trial and sentence Davis appeals. Davis’s termina- court sentenced accordingly. From this judg- tion from Drug Court is AFFIRMED. Opinion ment and sentence Samuel Cosby has perfect- by: Rowland, J.; Lewis, P.J., concurs; Kuehn, ed his appeal. The Judgment and Sentence of V.P.J., concurs; Lumpkin, J., concurs; Hudson, the District Court is AFFIRMED. Opinion by: J., concurs. Lewis, P.J.; Kuehn, V.P.J., concurs in results; F-2018-145 — On June 23, 2015, Appellant Lumpkin, J., concurs; Hudson, J., concurs; Troy Wadell Davis, represented by counsel, Rowland, J., concurs. entered a guilty plea to Count 1, Possession of C-2018-489 — Petitioner Mario Donsheau a Controlled Dangerous Substance (Cocaine) in Cherry entered blind pleas of guilty to First Oklahoma County Case No. CF-2015-4280. Degree Manslaughter, After Former Convic- Sentencing was deferred for five (5) years, sub- tion of Two or More Felonies (Count II); Caus- ject to terms and conditions of probation. On ing an Accident Resulting in Great Bodily March 27, 2017, Davis’s Case No. CF-2015-4280 Injury, After Former Conviction of Two or was transferred to the Oklahoma County Drug More Felonies (Count III); Leaving the Scene of Court Program along with his new Oklahoma an Accident with Personal Injury, After Former County Case No. CF-2017-316, wherein Davis Conviction of Two or More Felonies (Count V); was charged with Possession of a Controlled Leaving the Scene of a Collision Without Stop- Dangerous Substance (Cocaine). Sentencing in ping (Count VI); Resisting Arrest (Count VII) ; both cases was deferred pending Davis’s com- and Driving While License Suspended (Count pletion of the Oklahoma County Drug Court IX) in the District Court of Oklahoma County, Program. On January 17, 2018, the State filed Case No. CF-2016-4278. The pleas were accept- an Application to Terminate Davis from Drug ed by the Honorable Bill Graves, District Judge, Court participation alleging multiple viola- on February 23, 2018. Sentencing was contin- tions. On January 30, 2018, at the conclusion of ued until April 5, 2018. On that date, the trial the hearing on the State’s application, the Hon- court sentenced Petitioner to life in prison in orable Geary L. Walke, Special Judge, termi- Counts II, III and V; and one (1) year in each of nated Davis’s Drug Court participation and Counts VI, VII, and IX. The sentences in Counts sentenced him as specified in his plea agree- II and III were ordered to run consecutive. The ment. From this judgment and sentence Davis remaining sentences were ordered to run con- appeals. Davis’s termination from Drug Court currently to the sentences in Counts II and III. is AFFIRMED. Opinion by: Lumpkin, J.; Lewis, On April 12, 2018, Petitioner, represented by P.J., Concur; Kuehn, V.P.J., Concur; Hudson, J., counsel, filed an Application to Withdraw Plea Concur; Rowland, J., Concur. of Guilty. At a hearing held on May 4, 2018, F-2017-952 — Jerry Don Battenfield, Appel- Judge Graves denied the motion to withdraw. lant, was tried by jury for two counts of child From this judgment and sentence Mario Don- sexual abuse of a child under age twelve (12) in sheau Cherry has perfected his appeal. The Pe-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 479 tition for a Writ of Certiorari is DENIED. The imprisonment and ordered credit for time Judgment and Sentence of the District Court is served. From this judgment and sentence, Zac- hereby AFFIRMED. Opinion by: Lumpkin, J.; ary Craig Anderson has perfected his appeal. Lewis, P.J., Concur; Kuehn, V.P.J Concur; Hud- The Judgment and Sentence of the District son, J., Concur; Rowland, J., Recuse. Court is AFFIRMED. Appellant’s Application for Evidentiary Hearing on Sixth Amendment F-2017-1103 — Jose Jonathan Rivera-Chavez, Claims is DENIED. Opinion by: Hudson, J.; Appellant, was tried by jury for the crime of Lewis, P.J., Concurs; Kuehn, V.P.J., Concurs; first degree murder in Case No. CF-2017-59 in Lumpkin, J., Concurs; Rowland, J., Concurs. the District Court of Tulsa County. The jury returned a verdict of guilty and set punishment F-2017-1189 — Lawrence Raymond Silver, Jr., at life imprisonment without the possibility of Appellant, was tried by jury for the crime of parole. The trial court sentenced accordingly. Solicitation for First Degree Murder in Case From this judgment and sentence Jose Jona- No. CF-2017-41 in the District Court of Pot- than Rivera-Chavez has perfected his appeal. tawatomie County. The jury returned a verdict The Judgment and Sentence of the District of guilty and set punishment at thirty-seven Court is AFFIRMED. Opinion by: Lewis, P.J.; years. The trial court sentenced accordingly. Kuehn, V.P.J., concurs; Lumpkin, J., concurs; From this judgment and sentence Lawrence Hudson, J., concurs; Rowland, J., concurs. Raymond Silver, Jr. has perfected his appeal. AFFIRMED. Opinion by: Rowland, J.; Lewis, F-2017-911 — On August 26, 2009, Appellant P.J., concurs; Kuehn, V.P.J., concurs; Lumpkin, Jason O’Neal Sims, represented by counsel, J., concurs in part and dissents in part; Hudson, entered guilty pleas to two counts of Second J., concurs. Degree Burglary in Beckham County Case Nos. CF-2009-194 and CF-2009-226. Sims was sen- F-2017-1214 — Appellant, Marco Antonio Her- tenced to twenty-one (21) years for each count, nandez, was tried by jury and convicted of with all but the first eight (8) years suspended. Trafficking in Illegal Drugs (Methampheta- The sentences were ordered to be served con- mine) (Count 1) and Unlawful Possession of a currently. On April 29, 2014, the State filed an Controlled Drug with Intent to Distribute (Mari- Application to Revoke Sims’s suspended sen- juana & Cocaine) (Count 2), After Former Con- tences, alleging Sims committed the new of- viction of Two or More Felonies and Unlawful fense of Possession of a Controlled Substance Possession of Drug Paraphernalia (Count 4) in in the Presence of a Minor and Within 1000 feet District Court of Tulsa County Case Number CF- of a School as charged in Beckham County Case 2015-6346. The jury recommended as punish- No. CF-2014-186. On July 11, 2014, Sims entered ment imprisonment for life and a $25,000.00 a guilty plea in Case No. CF-2014-186. Sentenc- fine in Count 1; imprisonment for life in Count ing was deferred in all three cases pending Sims 2; and incarceration in the county jail for one completion of the Beckham County Drug Court year and a $1,000.00 fine in Count 4. The trial Program. On July 13, 2017, the State filed an court sentenced Appellant in accordance with Application to Terminate Sims from Drug Court. the jury’s recommendation and ordered that On August 30, 2017, the Honorable Doug the sentences run consecutively. From this Haught, District Judge, terminated Sims’s Drug judgment and sentence Marco A. Hernandez Court participation and sentenced him as spec- has perfected his appeal. The Judgment and ified in his plea agreement. From this judgment Sentence of the District Court is hereby AF- and sentence Sims appeals. Sims’s termination FIRMED. Opinion by: Lumpkin, J.; Lewis, P.J., from Drug Court is AFFIRMED. Opinion by: Concur in part dissent in part; Kuehn, V.P.J, Hudson, J.; Lewis, P.J., Concur; Kuehn, V.P.J., Concur in part dissent in part; Hudson, J., Con- Concur; Lumpkin, J., Concur; Rowland, J., cur in part dissent in part; Rowland, J., Concur. Concur. F-2017-1104 — Joseph Johnson, Appellant, Thursday, April 11, 2019 was tried by jury for the crime of first degree murder in Case No. CF-2016-5475 in the Dis- F-2017-1038 — Zacary Craig Anderson, Ap- trict Court of Tulsa County. The jury returned a pellant, was tried and convicted at a bench verdict of guilty and set punishment at life trial, in Case No. CF-2014-3823, in the District imprisonment without the possibility of parole. Court of Oklahoma County, of Child Neglect. The trial court sentenced accordingly. From The Honorable Michele D. McElwee, District this judgment and sentence Joseph Johnson Judge, sentenced Appellant to twenty years has perfected his appeal. The Judgment and

480 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Sentence is AFFIRMED. Opinion by: Lewis, 116,648— In Re the Marriage of Webster, Bre- P.J.; Kuehn, V.P.J., concurs in results; Lumpkin, Ann Webster, Petitioner/Appellee, v. Christo- J., concurs; Hudson, J., concurs; Rowland, J., pher Webster, Respondent/Appellant. Appeal concurs. from the District Court of Tulsa County, Okla- homa. Honorable Stephen R. Clark, Judge. ACCELERATED DOCKET Respondent/Appellant Christopher D. Web- Thursday, April 4, 2019 ster (Husband) appeals the trial court’s order S-2018-950 — The Appellant, the State of terminating joint custody and awarding sole Oklahoma, appealed to this Court from an custody of the parties’ child to Petitioner/ order entered by the reviewing judge, the Hon- Appellee BreAnn Webster (Wife). Husband ar- orable Jill C. Weedon, Associate District Judge, gues the trial court abused its discretion and affirming an adverse ruling of the magistrate, denied Husband due process because, accord- the Honorable Ryan D. Reddick, Associate Dis- ing to Husband, he was not given notice or an trict Judge, which sustained Appellee Jerry Lee opportunity to be heard before the trial court Niles Jr.’s demurrer to the evidence and motion terminated joint custody. The record s s the to dismiss the charge of Manslaughter in the trial court entered its order following four days First Degree, while engaged in the commission of hearings, held over the course of four of a misdemeanor, in Case No. CF-2018-76 in months, at which Husband was present and the District Court of Garfield County. AF- represented by counsel. Oklahoma trial courts FIRMED. Opinion: Kuehn, V.P.J.; Lewis, P.J., may terminate joint custody any time it is in concur; Lumpkin, J., concur; Hudson, J., spe- the child’s best interests to do so. We find no cially concur; Rowland, J., concur. abuse of discretion and AFFIRM. Opinion by Buettner, J.; Goree, C.J., and Joplin, J., concur. COURT OF CIVIL APPEALS (Division No. 1) Thursday, April 11, 2019 Wednesday, April 3, 2019 116,742 — Danny James Sharp, Petitioner, v. 117,049— The Leslie Family Trust: Gregg Homeland Stores, Inc. Own Risk and Workers’ Glass, Trustee of The Leslie Family Trust, Plain- Compensation Commission, Respondents. Ap- tiffs/Appellants, v. Sandridge Exploration and peal from the Workers’ Compensation Com- Production, LLC; Chesapeake Exploration, mission En Banc. Claimant seeks review of that LLC; Lloyd Pool Operating; Lloyd Pool Oper- portion of an order of the Workers’ Compensa- ating, LLC; Janice Chloe Munn; Geneva Nadine tion Commission denying his claim for com- Munn; Donna Jean Cooper; Janice Deann Da- pensation due to an alleged injury to his left vid and Donna Christie Cooper, Trustees of the shoulder. He contends the denial is in view of Donna Jean Copper Living Trust dated 10/ the evidence. We affirm the Commission’s or- 03/1995; and Martha Vincent Bielby, Defen- der as not contrary to law nor clearly erroneous dants/Appellees. Appeal from the District in view of the reliable, material, probative and Court of Alfalfa County, Oklahoma. Honorable substantial competent evidence. Opinion by Loren E. Angle, Trial Judge. This appeal arises Goree, C.J.; Joplin, C.J., and Buettner, J., concur. from a dispute regarding mineral interests 116,934 — Wisdom Ministries, Inc., Plaintiff/ claimed by Petitioner/Plaintiff Leslie Family Appellee, v. Alex Portelli, Defendant/Appel- Trust (the Trust). The Trust sought a declarato- lant. Appeal from the District Court of Tulsa ry judgment that certain oil and gas interests County, Oklahoma. Honorable Daman H. Can- held by Respondent/Defendant Lloyd Pool trell, Judge. Defendant/Appellant Alex Portelli Operating, LLC (Lloyd Pool), and others (col- appeals the denial of his motion to vacate de- lectively “Defendants”) had expired and re- fault judgment entered against him in an ac- verted to the Trust. During the suit, Defendant tion for indebtedness filed by Plaintiff/Appel- Sandridge Exploration and Production, LLC lee Wisdom Ministries, Inc. (WMI). The trial (Sandridge), filed for bankruptcy, and the Trust court granted default as sanction for Portelli’s dismissed Sandridge with prejudice. Lloyd Pool failure to appear for the pre-trial conference. moved for dismissal of the Trust’s remaining Portelli sought to vacate the default judgment claims due to failure to join Sandridge as an eight months later, complaining WMI failed to indispensable party, which the trial court file a motion or give notice before default. The granted. We affirm. Opinion by Buettner, J.; district court rule allowing default judgment as Goree, C.J., concurs in result, and Joplin, P.J., a sanction for failure to appear at a pre-trial concurs. conference is a specific rule that does not re-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 481 quire a motion or notice. We Reverse and Re- providing for a speedy trial. We find the delay mand For Further Proceedings. Opinion by of the trial setting was reasonable and minimal; Buettner, J.; Goree, C.J., and Joplin, P.J., concur. that the continuance of the trial date upon the motion of State was properly considered pur- (Division No. 2) suant to 12 O.S.2011 § 667; and that the grant of Wednesday, March 27, 2019 the continuance over Plaintiff’s objection was 117,150 — Rick Beck, Petitioner, v. Cactus within the sound discretion of the court. As Drilling Co., LLC; Zurich American Insurance such, we reject Plaintiff’s claim that we must Co.; and The Workers’ Compensation Court of set aside the trial court’s order sustaining the Existing Claims, Respondents. Proceeding to revocation of Plaintiff’s license. AFFIRMED. Review an Order of the Workers’ Compensa- Opinion from the Court of Civil Appeals, Divi- tion Court of Existing Claims, Hon. Carla sion II, by Thornbrugh, J.; Fischer, P.J., and Snipes, Trial Judge. Claimant seeks review of a Goodman, J., concur. lower court that awarded him permanent par- tial impairment (PPI) benefits but, according to Monday, April 15, 2019 Claimant, designated an erroneous accrual 115,967 (Companion to Case No. 116,217) — date for those benefits. The order in question Andrew Hale and Keri Hale, Individually and set what appears to be two contradictory ac- as Parents and Next Friends of Henry Hale, a crual dates for the PPI benefits in this matter, minor child, Plaintiffs/Appellants, v. HCA without explaining the legal or factual grounds Health Services of Oklahoma, Inc., d/b/a OU for that determination. It is impossible to de- Medical Center; HCA, Inc.; OU Physicians, termine from the order why the trial court felt it d/b/a OU Physicians for Women’s Health; necessary to set an “accrual date” at all, or what Katherine Smith, M.D., Individually; Elisa legal theory the court relied upon in making the Crouse, M.D., Individually; Landon Lorentz, apparently contradictory factual findings that it M.D., Individually, Defendants, and Dawn Kar- did. As such, the order is not sufficiently specific lin, C.N.M., Individually, Defendant/Appellee. for this Court to ascertain the crucial facts and Appeal from an Order of the District Court of law on which the order is based. We therefore Oklahoma County, Hon. Bryan C. Dixon, Trial vacate the order and remand this cause for fur- Judge, granting summary judgment to Dawn ther proceedings. VACATED AND RE-MAND- Karlin, C.N.M. (Midwife). The issue before this ED FOR FURTHER PROCEEDINGS. Opinion Court is whether the actions of Defendant from the Court of Civil Appeals, Division II by Dawn Karlin, CNM (Midwife), are subject to Thornbrugh, J.; Fischer, P.J., and Goodman, J., the Oklahoma Governmental Tort Claims Act concur. (OGTCA), 51 O.S.2011, §§ 151 through 172. 117,453 — Christopher W. Brooks, Plaintiff/ Midwife alleged that at the time of the inci- Appellant, v. State of Oklahoma ex rel. Depart- dent, she was an employee of the University of ment of Public Safety. Appeal from an Order of Oklahoma Health Sciences Center, whose sal- the District Court of Oklahoma County, Hon. ary, insurance, and retirement benefits were Geary L. Walke, Trial Judge, sustaining the re- paid by the University. She therefore claims she vocation of Plaintiff’s driver’s license by the cannot be sued as an individual, but is subject Oklahoma Department of Public Safety. Plain- to the provisions of the OGTCA. The trial court tiff’s sole contention on appeal is that the trial held Midwife was subject to the OGTCA and court abused its discretion and exceeded its dismissed her from the suit. Plaintiffs argue authority in granting State’s motion for con- that Midwife was providing medical services tinuance on the day of trial after a key witness akin to those provided by physicians. There- failed to appear, even though State failed to fore, Plaintiffs argue, if physicians providing submit an affidavit pursuant to 12 O.S.2011 § medical services are not subject to the OGTCA, 668. Plaintiff incorrectly assumes that the con- neither should Midwife’s actions be within the tinuance was granted pursuant to § 668, and, OGTCA. We reject this argument because these consequently, mistakenly relies on Thomas v. provisions clearly exclude from the ambit of State ex rel. Dep’t of Public Safety, 1993 OK CIV the OGTCA only those acts of physicians deliv- APP 78, 858 P.2d 113. The record before us is ering medical care. By definition, Midwife is consistent with the granting of a motion for not a physician, and was at the time of the de- continuance pursuant to § 667, and Plaintiff livery, an employee of the University of Okla- does not otherwise complain of error in the homa Health Sciences Center (UOHSC). UO- trial proceedings or of any issues involved in HSC is an integral part of the University of

482 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Oklahoma. The University of Oklahoma’s gov- § 1357(3). We have reviewed the record and the ernment is vested in the Board of Regents, and detailed legal analysis by the ALJ, and find the is a political subdivision for purposes of the Commission’s order adopting the ALJ’s find- OGTCA. Midwife’s acts while an employee of ings, conclusions and recommendations, ade- the UOHSC are within the scope of her employ- quately explains its decision. The Commission’s ment, and therefore subject to the terms and order denying Prog Leasing’s refund claims is requirements of the OGTCA. The trial court’s AFFIRMED under Okla.Sup.Ct.R. 1.202(d). See determination that Midwife is subject to the also Linear Films, Inc. v. State ex rel. Oklahoma Tax OGTCA is correct. Summary judgment was Com’n, 1994 OK CIV APP 20, 876 P.2d 301(apply- therefore correct and is affirmed. AFFIRMED. ing Rule 1.202(d) to appeal of OTC order). Opinion from Court of Civil Appeals, Division Opinion by Swinton, J.; Mitchell, P.J., and Bell, II, by Goodman, J.; Fischer, P.J., and Thorn- J., concur. brugh, J., concur. 116,831 — Tiffany Bourque and Frederick Ka- (Division No. 3) rol, on Behalf of Themselves and a Class of Friday, March 29, 2019 Similarly Situated Persons, Plaintiffs/Appel- 116,264 — 71st Midway, LLC, an Oklahoma lees, vs. David Stanley Dodge, LLC and Ally Limited Liability Company, Plaintiff/Appel- Financial, Inc., Defendants/Appellants, and lee, vs. City of Broken Arrow, Oklahoma, a Mu- David A. Stanley, an Individual; David R. Stan- nicipal Corporation, Defendant/Appellant. ley, an Individual; Beth Stanley, an Individual; Appeal from the District Court of Wagoner Brent Stanley, an Individual; Shane Downs, an County, Oklahoma. Honorable Dennis Shook, Individual; Tony Reasner, an Individual; and Judge. Defendant/Appellant, City of Broken Jennifer Ray, an Individual, Defendants. Ap- Arrow (City), appeals from the district court’s peal from the District Court of Oklahoma order enjoining City from enforcing the A-1 County, Oklahoma. Honorable Thomas E. zoning ordinance on real property owned by Prince, Judge. Defendants/Appellants David Plaintiff/Appellee, 71st Midway, LLC (Mid- Stanley Dodge, LLC and Ally Financial, Inc. way). Midway sought to change the zoning (collectively Defendants) appeal from an order classification on its property from A-1 (agricul- denying their motion to compel arbitration and tural) to RS-3 (residential, higher-density). The to strike class action allegations. Defendants district court found Midway’s proposed use of argue that the trial court erroneously denied the property for RS-3 was consistent with Ci- their motion to compel arbitration because the ty’s comprehensive plan and that City’s deci- arbitration clause at issue is valid and enforce- sion to retain the A-1 zoning was arbitrary and able, improperly applied the law of construc- capricious. The district court enjoined City from tive fraud, and improperly failed to strike the enforcing the A-1 zoning and ordered City to class allegations. Plaintiffs/Appellees Tiffiany amend its ordinances and maps to s the re- Bourque and Frederick Karol argue that the quested RS-3 zoning. After reviewing the evidence established constructive fraud, and record, we find the district court’s judgment is therefore the trial court properly denied Defen- against the clear weight of the evidence and dants’ motion to compel arbitration. We AF- REVERSE. Opinion by Bell, J.; Mitchell, P.J., FIRM the trial court’s order. Opinion by Swin- and Swinton, J., concur. ton, J. Bell, J., concurs; Mitchell, P.J., dissents. 116,303 — In the Matter of the Protest to the 116,859 — Melani G. Hill, Petitioner, vs. Denial of the Sales Tax Refund for Prog Leas- Goodwill Industries of Duncan, CompSource ing, LLC: Prog Leasing, LLC, Appellant, vs. Mutual Insurance Company, and The Workers’ State of Oklahoma, ex rel. Oklahoma Tax Com- Compensation Court of Existing Claims, Re- mission, Appellee. Appeal from the Oklahoma spondents. Proceeding to Review an Order of a Tax Commission. Honorable Jay L. Harrington, Three-Judge Panel of the Workers’ Compensa- Administrative Law Judge. Appellant Prog tion Court of Existing Claims. Petitioner Mel- Leasing, LLC seeks review of an order of the ani G. Hill (Claimant) appeals from an order of Oklahoma Tax Commission that denied, in a three-judge panel of the Workers’ Compensa- part, Prog Leasing’s application for a sales tax tion Court of Existing Claims, which affirmed refund. Prog Leasing challenges the Commis- the trial court’s order finding Claimant was not sion’s interpretation that a non-resident is re- permanently totally disabled (PTD) as a result quired to have a sales tax permit to qualify for of an injury Claimant sustained while working the resale exemption allowed by 68 O.S. 2011 for Respondent Goodwill Industries of Dun-

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 483 can. We find the decision is against the clear Linden, Dana Jiles, Carlos Adair, Chuck Cash, weight of the evidence. We REVERSE AND Christina Stovall, Terry Young, Garrett Allen REMAND. Opinion by Mitchell, P.J.; Bell, J., Pierce, Lindsey Rae Pierce, Moses Thompson, and Swinton, J., concur. Hana Thompson, Cash CJ Stevenson, Krysta Lauren Stevenson, Michael Ethridge, Robert 117,181 — Michael Albertson, an individual, Darden, Steven Turpin, and Ronald Shaw, Plaintiff/Appellant, vs. United Parcel Service, Plaintiffs/Appellants, vs. Johnson Matthey Inc., a corporation, Defendant/Appellee. Ap- Inc., d/b/a Tracero, a foreign corporation, The peal from the District Court of Tulsa County, University of Tulsa, a not-for-profit Oklahoma Oklahoma. Honorable Mary F. Fitzgerald, corporation, Chevron USA, Inc., a foreign cor- Judge. Plaintiff/Appellant Michael Albertson poration, Chase Environmental Group, Inc., a appeals from the trial court’s order granting foreign corporation, and China Institute of Defendant/Appellee United Parcel Service, Atomic Energy, a foreign corporation, Defen- Inc.’s (UPS) motion to dismiss for failure to state dants/Appellees. Appeal from the District Court a claim upon which relief may be granted. After of Tulsa County, Oklahoma. Honorable Mary F. de novo review, we find Albertson has sufficient- Fitzgerald, Trial Judge. Plaintiffs/Appellants ap- ly stated a premises liability claim against UPS. peal from the trial court’s order dismissing We REVERSE AND REMAND FOR FURTHER their claims arising from exposure to Cesium PROCEEDINGS. Opinion by Mitchell, P.J.; Bell, 137, a radioactive substance, against Defen- J., and Swinton, J., concur. dants/Appellees Johnson Matthey Inc. d/b/a 117,258 — In the Matter of R.V., Deprived Tracero, The University of Tulsa, Chevron Child: State of Oklahoma, Petitioner, vs. Rae- USA, Inc., Chase Environmental Group, Inc., lyn Thomas and Justin East, Respondents, and and China Institute of Atomic Energy. We find Shelby Williams, Intervenor/Appellee, and the doctrine of judicial estoppel does not bar Paula Renee Waitt, Intervenor/Appellant. Ap- Plaintiffs’ claims. We decline to expand exist- peal from the District Court of Seminole ing tort law to recognize subcellular damage as County, Oklahoma. Honorable Timothy L. an injury and medical monitoring as a com- Olsen, Judge. R.V., an allegedly deprived In- mon law remedy. We find Plaintiffs have suffi- dian child, was initially placed in foster care ciently stated a claim upon which relief may be with Intervenor/Appellant Paula Renee Waitt. granted for negligence, gross negligence, negli- Waitt is not related to R.V. but has an Indian gent infliction of emotional distress, and nui- foster home licensed by DHS. After paternity sance. ever, we find Plaintiffs have failed to was established, Intervenor/Appellee Shelby state a claim for trespass. The order of the trial Williams, R.V.’s second cousin once removed, court is AFFIRMED IN PART, REVERSED IN requested placement. The trial court ordered PART AND REMANDED FOR FURTHER that placement be changed to Williams based PROCEEDINGS. Opinion by Mitchell, J.; Swin- on the Indian Child Welfare Act (ICWA) place- ton, P.J., and Goree, V.C.J., concur. ment preferences. Waitt appeals from the trial (Division No. 4) court’s placement order and the denial of her Wednesday, March 27, 2019 Motion to Reconsider. We find no error in the trial court’s determination that Williams is 116,936 — Javier Hernandez-Contreras, Peti- R.V.’s extended family member and, as a result, tioner, vs. Multiple Injury Trust Fund and The the preferred placement under ICWA. There is Workers’ Compensation Court of Existing not clear and convincing evidence of good Claims, Respondents. Proceeding to review an cause to depart from the order of preferences. order of a three-judge panel of the Workers’ Therefore, the trial court did not abuse its dis- Compensation Court of Existing Claims, Hon. cretion by denying Waitt’s Motion to Recon- Michael W. McGivern, Trial Judge, denying sider. We AFFIRM. Opinion by Mitchell, P.J. Claimant’s claim against the Multiple Injury Bell, J., concurs; Swinton, J., concurs in result. Trust Fund (MITF). Claimant asserts the three- judge panel’s decision is against the clear Tuesday, April 2, 2019 weight of the evidence. Claimant’s own testi- 116,640 — Jonathon Cruz, Scott Bender, mony s s he spends numerous hours each week Konark Ogra, Ben Bbosa, Joseph Neil Squire, working in his wife’s flea market business and Derek Ley, Jennifer Holland, Martin Bolin, he derives income from that work. He not only Christi Lynn McLelland, Cecil Down, Lori Ble- helps with sales at the booth on the weekends, vins, Brad Carmack, Lucy Henshaw, Taylor but attends auctions to find items to sell, and

484 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 then cleans and repairs them. When Claimant to consider the merits of the second OCPA left his employment, he filed for unemploy- motion. Therefore, we affirm. AFFIRMED. ment benefits and represented that he was able Opinion from Court of Civil Appeals, Division and willing to work. Based on these facts, we IV, by Barnes, P.J.; Wiseman, V.C.J., and Rapp, conclude the three-judge panel’s decision that J., concur. Claimant is not permanently totally disabled is not against the clear weight of the evidence. Monday, April 1, 2019 Although it is clear that Claimant has many 116,677 — Royal Hot Shot Investments, Inc., physical limitations, he has for the past three or Judy R. Carr, and Johnny R. Carr (Substituted four years helped his wife in her business, his Parties for Kiefer Production Company, LLC), work was not sporadic, temporary, or unusual Plaintiffs/Appellants, Kiefer Production Com- and the work he performed could not be con- pany, LLC, Appellant, v. Stuart Douglas Keeton sidered just light work. The three-judge panel’s and Steven L. Keeton, Co-Trustees of The No- decision that Claimant is not permanently ma L. Rongey Trust and The Noma L. Rongey totally disabled is not against the clear weight Revocable Trust Dated May 21 1992; and Stuart of the evidence, and we sustain the decision of Douglas Keeton and Steven Lee Keeton, Co- the Workers’ Compensation Court of Existing Personal Representatives of the Estate of Noma Claims. SUSTAINED. Opinion from the Court L. Rongey, Defendants/Appellees. The Plain- of Civil Appeals, Division IV, by Wiseman, tiffs, Royal Hot Shot Investments, Inc. (“Royal”) V.C.J.; Barnes, P.J., and Rapp, J., concur. and Judy R. Carr (“Carr”), joined by Kiefer Friday, March 29, 2019 Production Company, LLC, the entity whose records were subpoenaed, (“KPC”), appeal the 117,058 — Scott Hockenberry, Plaintiff/Ap- trial court’s Order denying their motion to pellee, v. Michelle Beth Kalas, Defendant/Ap- quash the subpoena duces tecum issued to KPC pellant. Appeal from the District Court of by the defendants. The Defendants are Stuart Comanche County, Hon. Gerald F. Neuwirth, Douglas Keeton and Steven L. Keeton, co- Trial Judge. Defendant (Ms. Kalas) appeals trustees of the Noma L. Rongey Trust and the from the trial court’s Order addressing motions Noma L. Rongey Revocable Trust, dated May in two consolidated cases which attempt to 21, 1992, and Stuart Douglas Keeton and Ste- invoke the Oklahoma Citizens Participation ven Lee Keeton, co-personal representatives of Act, 12 O.S. Supp. 2014 §§ 1430-1440 (OCPA). the Estate of Noma Lee Rongey (“Noma”). The first motion was filed by Ms. Kalas in a protective order proceeding she initiated. Her Plaintiffs and KPC also appeal an Order to OCPA motion was filed in response to Plaintiff place Noma in “pay status” to receive cash (Mr. Hockenberry) filing a motion for attorney payments from KPC. This is a case where the fees in that proceeding. The second OCPA mo- questions are whether Noma Rongey, or her tion was filed in response to Mr. Hockenberry Trust, is the member of Kiefer Production filing a petition alleging, among other things, a Company, LLC, and, if Noma, what are her claim of defamation against Ms. Kalas. Because status and rights due to her incapacity. The fact Mr. Hockenberry’s application to the court for that the trial court’s rulings on these issues are attorney fees in the protective order proceed- subject to revision by the trial court, as well as ing does not fall within the scope of the OCPA, review on appeal, make any Opinion by this we conclude the trial court properly dismissed Court potentially an advisory opinion. This Ms. Kalas’s OCPA motion filed in response to Court finds that the matter of the subpoena Mr. Hockenberry’s motion for attorney fees. duces tecum must be returned to the trial court Upon denying the motion for attorney fees – a in order to assess the implications, if any, decision which Mr. Hockenberry does not resulting from Noma’s death and to give the appeal – the trial court properly concluded that parties and the trial court the opportunity to no further matters remained pending in rela- resolve whether there should be any limita- tion to the protective order proceeding, a pro- tions on the scope and extent of the discovery. ceeding which had previously been dismissed The trial court’s denial of the request for find- by Ms. Kalas. As to the second OCPA motion, ings of fact and conclusions of law is affirmed. Mr. Hockenberry voluntarily dismissed his AFFIRMED IN PART, AND RENDITION OF petition, and we conclude the trial court prop- FURTHER OPINION DENIED AND CAUSE erly concluded this voluntary dismissal was REMANDED TO THE TRIAL COURT FOR effective and eliminated the court’s jurisdiction FURTHER PROCEEDINGS. Opinion from

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 485 Court of Civil Appeals, Division IV, by Rapp, J.; court’s denial of his request for child support Barnes, P.J., and Wiseman, V.C.J., concur. for the approximately four-year period while the case was pending on his Motion to Modify 117,166 — State of Oklahoma ex rel. Depart- Custody and Child Support. This Court has ment of Human Services, Petitioner/ Appellee, reviewed the parties’ arguments and the rele- v. Sundai Ekokotu, a/k/a Sunny Tito Ekototu, vant evidence. The judgment of the trial court Respondent/Appellant. Appeal from an Order is not against the clear weight of the evidence. of the District Court of Oklahoma County, Therefore, the judgment denying Father’s Hon. Sheila Stinson, Trial Judge. Sundai “Sun- motion to modify to require Mother to pay ny” Ekokotu (Ekokotu) appeals an Order en- child support and related child expenses is af- tered on his petition to vacate a dismissal of his firmed. In her Brief, Appellee requested appeal- cause. This Order modified the original order related costs and attorney fees. The request from a dismissal with prejudice to dismissal does not comply with Okla.Sup.Ct.R.1.14, 12 without prejudice and otherwise denied the O.S. Supp. 2018, App. 1, and is therefore de- petition to vacate. Ekokotu maintains that the nied. AFFIRMED. Opinion from Court of Civil trial court actually entered an order nunc pro Appeals, Division IV, by Rapp, J.; Barnes, P.J., tunc and that such orders cannot be utilized to and Wiseman, V.C.J., concur. correct error. Here the dismissal was with prejudice. Although Ekokotu is generally accu- Thursday, April 4, 2019 rate in his discussion of nunc pro tunc, he has 116,329 — J. Patrick Carter, RZ Industries, two obstacles to relief under this argument. Inc., an Oklahoma corporation, and MPF In- First, the trial court’s Journal Entry states that dustries, LLC, an Oklahoma limited liability the judgment is “modified” and the concept of company, Plaintiffs/ Appellees, vs. Richard L. nunc pro tunc is not mentioned. Second, the Caudle, Brian Wernimont, and Madison Ma- statutes authorize the trial court to modify chine Companies, Inc., a Wyoming corpora- judgments, which is what the trial judge did. tion, Defendants/Appellants. Appeal from an Thus, Ekokotu is in error when he argues that order of the District Court of Tulsa County, Hon. the trial court had to either confirm the prior Jefferson D. Sellers, Trial Judge. Defendants judgment entirely or vacate it entirely. Ekoko- Richard L. Caudle, Brian Wernimont, and Madi- tu’s contentions about lack of notice of the mo- son Machine Companies, Inc. appeal a trial court tion to dismiss and the hearing on the motion judgment entered after non-jury trial in favor of are not supported by the Record. The motion to Plaintiffs J. Patrick Carter, RZ Industries, Inc., dismiss contains the notice of setting pursuant and MPF Industries, LLC. Plaintiffs sued Defen- to Local Rule 11 and a certificate of mailing to dants for fraud/deceit, conversion, tortious Ekokotu. After review of the Record and Briefs, interference with contract, tortious interference this Court concludes that the trial court had the with business opportunity, and breach of fidu- authority to modify the previous judgment ciary duty. After a non-jury trial, the trial court and did so. This modification inured to the entered its extensive, detailed 44-page findings benefit of Ekokotu. The trial court’s denial of of fact and conclusions of law. After reviewing further relief has not been s n to be an abuse of the record, we conclude Defendants failed to s discretion or contrary to law. Therefore, the trial court error in assessing liability or award- judgment of the trial court is affirmed. ing damages. The trial court’s decision is sup- AFFIRMED. Opinion from Court of Civil Ap- ported by competent evidence and we affirm peals, Division IV, by Rapp, J.; Wiseman, V.C.J., its judgment. AFFIRMED. Opinion from the and Barnes, P.J., concur. Court of Civil Appeals, Division IV, by Wise- Tuesday, April 2, 2019 man, V.C.J.; Barnes, P.J., and Rapp, J., concur. 117,104 — In Re the Marriage of: Braley, 117,552 — Citibank, N.A., Plaintiff/Appel- Rebekah Braley, Petitioner/Appellee, v. Cole lee, v. Renee M. Nelson, Defendant/Appellant. Braley, Respondent/Appellant. Appeal from Appeal from the District Court of Tulsa County, the District Court of Woodward County, Hon. Hon. Kirsten Pace, Trial Judge. In this action by Don A. Work, Trial Judge. The trial court Plaintiff/Appellee Citibank, N.A. to recover for Respondent, Cole Braley (Father), appeals that past due amounts on a credit card account, part of the Order Modifying Decree of Divorce Defendant/Appellant Renee M. Nelson appeals which denied Father’s claim against the Peti- from the trial court’s grant of summary judg- tioner, Rebekah Braley (Mother), for child sup- ment to Citibank. Citibank filed a motion for port. In this case, Father appeals the trial summary judgment and brief in support to

486 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 which it appended a card agreement, an affida- 117,560 — Sherri D. Hatchel, Plaintiff/Appel- vit of Citibank’s custodian of records with re- lant, v. Leah Hocker, Defendant/Appellee. Ap- spect to accounts owned by Citibank, and a peal from the District Court of Garfield County, copy of Ms. Nelson’s account statement s ing a Hon. Tom L. Newby, Trial Judge. In this per- past due balance of $3,594.37, in addition to sonal injury case arising from an automobile interest and late fees. Though given numerous accident, Plaintiff appeals from the trial court’s extensions of time to conduct discovery and to grant of summary judgment to Defendant respond to Citibank’s motion, Ms. Nelson upon its determination that the two-year stat- failed to respond. From our review of the ute of limitations barred Plaintiff’s negligence record on appeal, the uncontroverted facts s claim. Plaintiff asserts on appeal material issues that charges in the amount of $3,594.37 were of fact remain concerning the date the accident made and past due on Ms. Nelson’s account, occurred. Fundamentally, some evidence has along with interest and late fees; thus, the been presented at the summary judgment stage uncontroverted facts s Ms. Nelson is indebted in this case in support of the conclusion that the to Citibank on that account under the terms of lawsuit was filed within two years of the acci- the card agreement. Based on our review of the dent. Although substantial evidence has also record on appeal and the applicable law, we been presented contradicting this conclusion, conclude no issues of material fact remain and the trial court may not weigh the evidentiary the trial court properly granted summary judg- materials at the summary judgment stage. We, ment to Citibank as a matter of law. Accord- therefore, conclude the trial court erred as a mat- ingly, we affirm. AFFIRMED. Opinion from ter of law in determining that the uncontrovert- Court of Civil Appeals, Division IV, by Barnes, ed evidence demonstrates the statute of limita- P.J.; Wiseman, V.C.J., and Rapp, J., concur. tions bars Plaintiff’s claim. Accordingly, we reverse and remand for further proceedings. Friday, April 5, 2019 REVERSED AND REMANDED FOR FUR- 117,286 — RJRK, LLC, an Oklahoma limited THER PROCEEDINGS. Opinion from Court liability company, Plaintiff/ Appellee, vs. Regi- of Civil Appeals, Division IV, by Barnes, P.J.; nal Stafford a/k/a Reginal J. Stafford and Wiseman, V.C.J., and Rapp, J., concur. Deborah Stafford a/k/a Deborah A. Stafford, Monday, April 8, 2019 Defendants/Appellants, and The Occupants, if any, of 319 S.W. 23rd Street, Oklahoma City, 117,368 (Companion with Case No. 116,299) Oklahoma, and the Occupants, if any, of 114 — In the Matter of the Estate of Rhodena L. S.W. 23rd Street, Oklahoma City, Oklahoma, Thornton, Deceased, and In the Matter of the Defendants. Appeal from an order of the Dis- Estate of William H. Thornton, Deceased, trict Court of Oklahoma County, Hon. Richard Pamela Louise Brown, Appellant, vs. Teresa C. Ogden, Trial Judge. Reginal Stafford and Hand, Appellee. Appeal from an order of the Deborah Stafford appeal an order sustaining District Court of Osage County, Hon. B. David RJRK, LLC’s motion for summary judgment Gambill, Trial Judge, denying Appellant Pame- and foreclosing mortgage liens. The issue pre- la Louise Brown’s “motion to vacate journal sented is whether the trial court erred in con- entry on personal representative’s objection to cluding RJRK was entitled to judgment as a settlement report and contract of employment matter of law. Defendants do not submit any of David L. Smith.” A review of the record s s evidence of fraud. They admit they executed Attorney Smith was provided proper service of documents. They do not deny receiving the the orders, and when given an opportunity proceeds of the loan, they do not claim that during the hearing on the motion to vacate, he RJRK did not have the right to enforce the note, provided no explanation, argument or other and they raise no question that the note has proof to the court as to the specified service been transferred or sold. No material facts violated statutory service provisions. We see remain in dispute, leading us to the same con- no abuse of discretion in the trial court denying clusion the trial court reached, that RJRK is the motion to vacate on this basis. Although entitled to judgment as a matter of law. Find- the trial court “sustained the objection” of the ing no error, we affirm the summary judg- personal representative and ordered Smith to ment entered by the trial court. AFFIRMED. deposit the settlement proceeds with the court Opinion from the Court of Civil Appeals, by a certain date without deducting his attor- Division IV, by Wiseman, V.C.J.; Barnes, P.J., ney fees, costs and/or other expenses, it also and Rapp, J., concur. ordered him to appear for a determination on

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 487 such fees and costs, which, based on the record 115,628 — In the Marriage of: Sharon Keenan, before us, has not yet occurred. It appears the Petitioner/Appellee, v. John Andrew Keenan, trial court agreed with Hand that the proceeds Respondent/Appellant. Appeal from an Order should be paid into court in full, but rather of the District Court of Tulsa County, Hon. than denying Smith’s entitlement to fees and Tammy Bruce, Trial Judge. Respondent, John expenses, it expressly set a hearing to deter- Andrew Keenan, (Husband) appeals a trial mine those fees, costs and expenses. The trial court Journal Entry of Judgment awarding court could not have “sustained the objection” Petitioner, Sharon Keenan, (Wife) support ali- to awarding fees and costs at all and, in the mony and dividing the marital property in this same breath, then set those matters for hearing divorce action. The trial court is vested with three weeks later. We take the trial court at its wide discretion in dividing property and word when it ordered the settlement proceeds awarding alimony. McLaughlin v. McLaughlin, paid into court to be subject to the court’s 1999 OK 34, ¶ 18, 979 P.2d 257, 262. This Court future disposition after a hearing on Smith’s finds the trial court did not abuse its discretion request for attorney fees, costs and expenses. in its award of support alimony. This Court Until the trial court makes this determination, further finds the trial court’s property division we have no decision to review on this question, is inequitable and is remanded to the trial court and we cannot address the merits of the attor- for an equitable division of the marital prop- ney fees and costs argument for the first time erty. This Court also finds the trial court did on appeal. Although we affirm the trial court’s not err in allowing introduction of Husband’s denial of Brown’s motion to vacate, we remand deposition taken in the Florida action. for the trial court to determine Smith’s attorney AFFIRMED IN PART, REVERSED IN PART fees, costs and expenses. AFFIRMED AND AND REMANDED WITH INSTRUCTIONS. REMANDED FOR FURTHER PROCEED- Opinion from Court of Civil Appeals, Division INGS. Opinion from the Court of Civil Appeals, IV, by Rapp, J.; Wiseman, V.C.J., and Thorn- Division IV, by Wiseman, V.C.J.; Barnes, P.J., brugh, J. (sitting by designation), concur. and Rapp, J., concur.

Notice of Judicial Vacancy The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Fifteenth Judicial District, Office 1 • Muskogee County This vacancy is due to the untimely passing of the Honorable Mike Norman on February 25, 2019. To be appointed to the office of District Judge, Fifteenth Judicial District, Office 1, one must be a legal resident of Muskogee County, at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained on line at www.oscn.net, click on Programs, then Judicial Nominating Commission or by contacting Tammy Reaves at (405) 556-9300. Applications must be submitted to the Chairman of the Commission at the address below no later than 5:00 p.m., Friday, May 10, 2019. If applications are mailed, they must be postmarked by midnight, May 10, 2019. Mike Mordy, Chairman Oklahoma Judicial Nominating Commission Administrative Office of the Courts 2100 N. Lincoln Blvd., Suite 3 Oklahoma City, Oklahoma 73105

488 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 Classified Ads

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DUE TO THE RETIREMENT OF A 37 YEAR PROSE- OF COUNSEL LEGAL RESOURCES – SINCE 1992 – CUTOR, DISTRICT 9, PAYNE AND LOGAN COUN- Exclusive research & writing. Highest quality: trial and TIES, is seeking an experienced trial attorney. A mini- appellate, state and federal, admitted and practiced mum of 8 years prosecution experience including all U.S. Supreme Court. Over 25 published opinions with major felony crimes is a requirement. Salary is com- numerous reversals on certiorari. MaryGaye LeBoeuf mensurate with experience. Please send cover letter 405-728-9925, [email protected]. and resume to [email protected]. THE OKLAHOMA BAR ASSOCIATION HEROES pro- HANDWRITING IDENTIFICATION gram is looking for several volunteer attorneys. The POLYGRAPH EXAMINATIONS need for FAMILY LAW ATTORNEYS is critical, but at- Board Certified State & Federal Courts torneys from all practice areas are needed. All ages, all Diplomate - ABFE Former OSBI Agent counties. Gain invaluable experience, or mentor a Fellow - ACFEI FBI National Academy young attorney, while helping someone in need. For more information or to sign up, contact Margaret Tra- Arthur Linville 405-736-1925 vis, 405-416-7086 or [email protected].

INTERESTED IN PURCHASING PRODUCING & NORMAN BASED FIRM IS SEEKING A SHARP & NONPRODUCING MINERALS; ORRi. Please con- MOTIVATED ATTORNEY to handle HR-related mat- tact Greg Winneke, CSW Corporation, P.O. Box 23087, ters. Attorney will be tasked with handling all aspects Oklahoma City, OK 73123; 210-860-5325; email of HR-related items. Experience in HR is required. Firm [email protected]. offers health/dental insurance, paid personal/vacation days, 401k matching program and a flexible work Want To Purchase Minerals AND OTHER OIL/ schedule. Members of our firm enjoy an energetic and GAS INTERESTS. Send details to: P.O. Box 13557, Den- team-oriented environment. Position location can be ver, CO 80201. for any of our Norman, OKC or Tulsa offices. Submit resumes to [email protected]. OFFICE SPACE GUNGOLL, JACKSON, BOX & DEVOLL PC SEEKS LUXURY OFFICE SPACE AVAILABLE - One fully fur- EXPERIENCED LITIGATION ATTORNEY. Family law nished office available for lease in the Esperanza Office experience preferred but not required. Competitive pay Park near NW 150th and May Avenue. The Renegar and excellent benefits. Please send cover letter, résumé Building offers a beautiful reception area, conference and writing sample to [email protected]. room, full kitchen, fax, high-speed internet, security, janitorial services, free parking and assistance of our POSITION FOR LITIGATION ASSOCIATE ATTOR- receptionist to greet clients and answer telephone. No NEY IN TULSA. We are recruiting an experienced deposit required, $955/month. To view, please contact partner-track associate attorney to handle all phases of Gregg Renegar at 405-488-4543 or 405-285-8118. civil litigation within a strong team setting that focuses on client service and maximizing outcomes. Our practice includes challenging procedural and technical is- POSITIONS AVAILABLE sues, and the successful candidate will possess strong analytical, advocacy and case management skills. We WATKINS TAX RESOLUTION AND ACCOUNTING are looking for the right attorney to join our team who FIRM is hiring attorneys for its Oklahoma City and Tul- will take pride in the service we deliver and fit within sa offices. The firm is a growing, fast-paced setting with our friendly, low-key firm environment. Candidates a focus on client service in federal and state tax help (e.g. must have at least 7 years’ experience in civil litigation offers in compromise, penalty abatement, innocent that reflects highly developed skill in legal research, spouse relief). Previous tax experience is not required, drafting memoranda, briefs and discovery, taking de- but previous work in customer service is preferred. positions, managing document production and oral Competitive salary, health insurance and 401K avail- argument. Candidates should submit a recent writing able. Please send a one-page resume with one-page cov- sample and CV to [email protected]. er letter to [email protected].

Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 489 POSITIONS AVAILABLE POSITIONS AVAILABLE

ASSISTANT DISTRICT ATTORNEY. District 27 (Adair, DISTRICT 17 DA’S OFFICE IS LOOKING FOR AN AS- Cherokee, Sequoyah and Wagoner County). Salary SISTANT DISTRICT ATTORNEY for our Choctaw range: commensurate with experience. Submit resume County Office. Requires a Juris Doctorate from an ac- to [email protected]. credited law school. Salary range $55,000 to $70,000. Must be admitted to the Oklahoma state bar and be in GUNGOLL, JACKSON, BOX & DEVOLL, P.C. SEEKS good standing. Submit a resume with supporting doc- EXPERIENCED ESTATE PLANNING ATTORNEY. umentation to District Attorney Mark Matloff, 108 N Competitive pay and excellent benefits. Please send Central, Suite 1, Idabel, OK 74745; Office: 580-286-7611, cover letter, résumé and writing sample to blanton@ Fax: 580-286-7613; email: [email protected]. gungolljackson.com. EXPERIENCED LEGAL ASSISTANT OR LEGAL SEC- ESTABLISHED SMALL INSURANCE DEFENSE AND RETARY needed for busy litigation firm. Competitive COVERAGE FIRM SEEKS 4-8 YEAR ATTORNEY(S) salary, health insurance, retirement, paid holidays and with strong research and writing skills and deposi- leave. Must be “boots on the ground” in Lake Eufaula tion/courtroom experience to support growing prac- area – no remote work. 3-lawyer firm handling litiga- tice. Extraordinary growth potential for person(s) with tion in a 12 county area. Experience in family law a strong work ethic and attention to detail. Send resume plus but not required. Contact Deborah Reheard by to: [email protected]. mailing or emailing resume and references to P.O. Box MILLS & JONES PLLC seeks an attorney with 2-4 636, Eufaula, OK 74432; [email protected]. years of experience. Litigation/insurance defense experience preferred but not required. Candidate will CLASSIFIED INFORMATION have broad motion practice and related trial practice responsibilities. Should be licensed in the state of Okla- homa, and preference for candidates admitted to prac- REGULAR CLASSIFIED ADS: $1.50 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box tice in Oklahoma federal district courts. Should ideally word count must include “Box ___,” Oklahoma Bar Associa- have experience in automobile liability defense, subro- tion, PO Box 53036, Oklahoma City, OK 73152.” gation and general personal injury. Deposition experience is a plus. This Norman-based law firm handles DISPLAY CLASSIFIED ADS: Bold headline, centered, border commercial trucking cases throughout Oklahoma and are $70 per inch of depth. occasional travel is expected. Majority of the firm’s case DEADLINE: See www.okbar.org/barjournal/advertising load is in federal court, and candidate should have a or call 405-416-7084 for deadlines. strong familiarity and understanding of the Federal SEND AD (email preferred) stating number of times to be Rules of Civil Procedure and Federal Rules of Evidence. published to: Candidate should possess a desire to succeed and ad- [email protected], or vance own career by demonstrating an ability to handle Mackenzie Scheer, Oklahoma Bar Association, case files in their entirety with some autonomy while de- PO Box 53036, Oklahoma City, OK 73152. veloping client relationships. Good writing, oral advo- Publication and contents of any advertisement are not to be cacy and research skills are required. Interested candi- deemed an endorsement of the views expressed therein, nor dates, please send confidential resume, references and shall the publication of any advertisement be considered an en- writing sample to [email protected]. dorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory. DO NOT STAPLE BLIND BOX APPLICATIONS.

490 The Oklahoma Bar Journal Vol. 90 — No. 8 — 4/20/2019 MORE OPTIONS April 23 @ Noon Technical Fouls: Even Minor Ethics Violations Can Have Major Consequences Presented by: Legal Humorist FOR YOUR CLE Sean Carter April 27 @ 10 a.m. The 2019 Ethy Awards on-demand webcast Presented by: Legal Humorist Sean Carter categories encores May 1 @ Noon The Ties That Bind: Avoiding Fourth Admendment April 25 @ 11 a.m. April 29 @ 1:30 p.m. Inappropriate Entanglements Adoption in the Practice of Law Appellate Practice #METOO: Microsoft Word Power tips Presented by: Legal Humorist Arbitration / Mediation Sexual Harassment for Legal Users Sean Carter Banking Law in the Workplace (1 total credit hour) Bankruptcy Law (6 total credit hours) May 7 @ Noon Business & C orporate Law The Truth, The Whole Truth and Constitutional Law April 29 @ 2:30 p.m. April 27 @ 9 a.m. Nothing But the Truth: Criminal Law Microsoft Office 365: You The Ethycal Imperative for Disability Law Legal Updates 2018 Probably Have No Idea Honesty in Law Practice DUI Law Day One What You’re missing Presented by: Legal Humorist Elder Law (6 total credit hour) Sean Carter Electronic Discovery (1 total credit hour) Energy & Natural Resources April 28 @ 11 a.m. Environmental & Energy Legal Updates 2018 April 30 @ 9 a.m. Estate Planning It’s Time for a Change: Ethics Day Two Family Law (6 total credit hour/ Much Better Methods for General Education including 1 hours of ethics) Drafting Complex General Practice Legal Documents April 30 @ 11 a.m. Health Law April 29 @ 9:30 a.m. (1 total credit hour) Immigration Law Retain Your Clients: Indian Law Intro & Legal Tech Tips, A Roadmap to Effective, Insurance Law Tricks & Apps April 30 @ 10 a.m. Ethical Client Service Labor & Employment Law (2 total credit hours) Addressing Security With Presented by: CLESeminars.com Law Ofﬁce Management Your Clients (Ethics) and Law Practice April 29 @ 11:15 a.m. (1 Total Credit Hour; 1 of which can be May 1 @ 11 a.m. Management & Technology Me Too: Sexism, Bias, and iPractice on used towards Ethics) LGBTQ the iPad: Sexual Misconduct in the Litigation / Civil Litigation How iPads Can Be Used Legal Profession Marijuana / Cannabis Effectively in a April 30 @ 11:30 a.m. Presented by: CLESeminars.com Mental Health Law Practice How to Protect Yourself Military/Veterans (1 total credit hour) and Preserve Confidentiality May 3 @ 11 a.m. Oil and Gas Overcoming Procrastination: Personal Injury Law When Negotiating April 29 @ 12:30 p.m. How to Kick the Habit Real Property Instruments (Ethics) Presented by: CLESeminars.com Social Security / Medicaid How to Manage Your (1 Total Credit Hour; 1 of which can be Tax Exempt Organizations Workload, Tasks & Time used towards Ethics) May 8 @ 11 a.m. Technology (1 total credit hour) Rock-n-Roll Law Intellectual Tax Law Property/Copyright Series: Trust & Probate Law The Exclusive Rights (and Work/Life Balance Revenue) You Get With Music W orkers' Compensation Presented by: CLESeminars.com ...AND MORE!

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Vol. 90 — No. 8 — 4/20/2019 The Oklahoma Bar Journal 491 ALL OF YOUR REQUIRED 12 HOURS OF MCLE CREDIT CAN BE RECEIVED BY LISTENING TO AN AUDIO WEBCAST. UPCOMING AUDIO seminars

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