IN THE SUPREME COURT OF THE STATE OF FLORIDA
SUPRA TELECOMMUNICATIONS AND INFORMATION SYSTEMS, INC.
Appellant, v. S. Ct. Case No.: SC02-1697 L.T. No.: 00-1305-TP
BELLSOUTH TELECOMMUNICATIONS, INC.
Appellee. ______/
______
Appeal from Final Order of the Florida Public Service Commission
______
REPLY BRIEF OF SUPRA TELECOMMUNICATIONS AND INFORMATION SYSTEMS, INC.
Brian W. Chaiken Jorge L. Cruz-Bustillo SUPRA TELECOMMUNICATIONS & INFORMATION SYSTEMS, INC. 2620 S.W. 27th Avenue Miami, Florida 33131 (305) 476-4248 TABLE OF CONTENTS
TABLE OF CONTENTS ...... i
TABLE OF AUTHORITIES ...... iii
I. JURISDICTION ...... 1
A. This Court has Subject Matter Jurisdiction ...... 1
B. Relief Sought is that Which is Deemed Appropriate ...... 2
C. Due Process is Properly at Issue ...... 2
D. Improper Use of Staff ...... 4
II. RES JUDICATA IS INAPPLICABLE TO PER CURIUM OPINION ...... 7
III. SECTION 364.162 IS NOT AN EXPRESS DELEGATION ...... 12
CONCLUSION ...... 15
ii TABLE OF AUTHORITIES
FEDERAL CASES
MCI Telecommunications Corporation v. Illinois Commerce Commission 168 F.3d 315 (7th Cir. 1999) ...... 1
MCI Telecommunications Corporation v. Illinois Commerce Commission 168 F.3d 315, 320 (7th Cir. 1999) ...... 1
Illinois Bell Telephone Company v. WorldCom Technologies, Inc. et al. 179 F.3d 566(7th Cir. 1999) ...... 1
Hormel v. Hovering 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037, 1041 (1941) ...... 3
Gideon v. Wainright 372 U.S. 335, 83 S.Ct. 792, 9L.Ed. 799 ...... 6
Kolander v. Weeks 916 F.Supp. 1042 (U.S. D. Oregon 1996) ...... 9
Russello v. United States 464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d (1983) ...... 15
STATE CASES
Cherry Communications Incorporated v. Deason 652 So.2d 803 (Fla. 1995) ...... 1, 3,4,7
Legal Environment Assistance Foundation, Inc. V. Clark 668 So.2d 982 (Fla. 1996) ...... 1
South Florida Natural Gas Co. v. Pub. Serv. Comm’n 534 So.2d 695 (Fla. 1988) ...... 1
iii Southern Bell Tel. and Tel. Co. v. Florida Pub. Serv. Comm’n. 453 So.2d 780, 781 (Fla. 1984) ...... 4,12, 14
Legal Environment Assistance Foundation, Inc. v. Clark 668 So. 2d 982 ...... 4
Moody v. Moddy 705 So. 2d 708 (Fla. 1st DCA 1998) ...... 8
Andujar v. National Property and Casualty Underwriters 659 So. 2d 1214 (Fla. 4th DCA 1995) ...... 8
Albrecht v. State of Florida 444 So. 2d 8 (Fla. 1984) ...... 8,9
Florida Real Estate Commission v. Harris 124 So.2d 785, 787 (Fla. 1961) ...... 10
Bared & Company v. McGuire 670 So.2d 153 157-158 (Fla. 4th DCA 1996) ...... 10
Southern Bell Telephone & Telegraph Company v. Bell 116 So.2d 617, 619 (Fla. 1959) ...... 10
The Florida Star v. B.J.F. 530 So. 2d 286 (Fla. 1988) ...... 11
Jenkins v. State 385 So. 2d 1356 (Fla. 1980) ...... 11
Dodi Publishing Company v. Editorial America, S.A. 385 So. 2d 1369 ...... 11
Verizon Florida, Inc. v. Jacobs, Jr. Fla. L. Weekly S137 (Fla. 2002) ...... 12
iv Rollins v. Pizzarelli 761 So. 2d 294 (Fla. 2000) ...... 13
Streeter v. Sullivan 509 So. 2d 268 (Fla. 1987) ...... 13
M. Joshua v. City of Gainesville 768 So. 2d 432 ...... 14
BellSouth Telecommunications, Inc. V. MCIMetro Access Transmission Services, Inc. 2003 WL 76991 (11th Cir. 2003) ...... 15
FEDERAL STATUTES
47 U.S.C. § 252(e)(4) ...... 1
47 U.S.C. § 252(e)(6) ...... 1
STATE STATUTES
Fla. Stat. § 364.162 ...... 2, 12, 14,15
Fla. Stat. § 112.313(8) ...... 2
Fla. Stat. § 364.381 ...... 11
Fla. Stat. § 364.162(1) ...... 15
MISCELLANEOUS
Art. I, Section 9, Florida Constitution ...... 1, 10
Art. V, Section 3(b)(2), Florida Constitution ...... 1, 10
v I. JURISDICTION
A. THIS COURT HAS SUBJECT MATTER JURISDICTION.
This Court has jurisdiction to hear this appeal pursuant to Article I Section 9 of the Florida Constitution. This provision was successfully cited by the appellant in the following cases: Cherry Communications Incorporated v. Deason, 652 So.2d 803 (Fla.
1995); Legal Environment Assistance Foundation, Inc. V. Clark, 668 So.2d 982 (Fla.
1996); and South Florida Natural Gas Co. V. Pub. Serv. Comm’n, 534 So.2d 695
(Fla. 1988). This Court also has jurisdiction pursuant to Article V, Section 3(b)(2) of the Florida Constitution as implemented by Section 364.381, Florida Statutes. These provisions invoke this Court’s original jurisdiction.
Neither of these two State constitutional provisions or State statutory provision are directly in conflict with or preempted by 47 U.S.C. § 252(e)(4) or (e)( 6). These federal provisions set forth the scope of federal review only - which is expressly limited to federal law. MCI Telecommunications Corporation v. Illinois Commerce
Commission, 168 F.3d 315, 320 (7th Cir. 1999). See also MCI Telecommunications
Corporation v. Illinois Commerce Commission, 168 F.3d 315, 320 (7th Cir. 1999) (The scope of federal review is expressly limited to federal law and does not include compliance with State law). See also Illinois Bell Telephone Company v. WorldCom
Technologies, Inc. et al, 179 F.3d 566, 571 (7th Cir. 1999) (“we would review a state
1 commission’s action for compliance with the requirements of § 251 and § 252 . . . We also said that we would not review those actions for compliance with state law.”).
These provisions do not limit, extinguish or infringe upon this Court’s jurisdiction regarding state law. See Subject matter jurisdiction argument more fully discussed in Supra’s Response to FPSC’s Motion To Dismiss For Lack of Subject
Matter Jurisdiction.
B. RELIEF SOUGHT IS THAT WHICH IS DEEMED APPROPRIATE
Supra submits that the controlling threshold is the conduct of the agency and its post-hearing procedures.1 At a minimum this matter should be remanded for another hearing consistent with the principles in Cherry or such other relief this Court deems appropriate. With respect to the interpretation of Section 364.162, Florida
Statutes, this Court should vacate the decision.
C. DUE PROCESS IS PROPERLY AT ISSUE.
The FPSC explicitly stated that any evidence of violations of Supra’s procedural due process rights were “extra-record” and would “not be considered.”
(R27-5208).2 There exists no judgment on the merits because this matter has never
1 Violations of Section 112.313(8), Florida Statutes, were first raised in Supra’s Motion for Reconsideration filed on April 10, 2002. (R17-3233). 2 See Order No. PSC-02-0878-FOF-TP, pg.14, 1st full paragraph.
2 been actually litigated. Nevertheless, this Court has jurisdiction and should decide the issue involving State procedural due process. Hormel v. Hovering, 312 U.S. 552, 557,
61 S.Ct. 719, 721, 85 L.Ed. 1037, 1041 (1941) (“There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below. . . Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.
. . Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.”); Cherry Communications, Inc. V. Deason, 652 S.2d 803 (Fla. 1995); 4 C.J.S.
Appeal and Error § 207; 73A C.J.S. Public Administrative Law and Procedure § 191, note 92-93. Thus, this Court is competent to decide constitutional rights, and not the
FPSC - the very body accused of denying such rights.
The earliest possible opportunity to object to the staff’s post-hearing advisory role was during reconsideration.3 However, such a claim regarding staff’s post- hearing role is not colorable under the FPSC’s reconsideration standard. See In re:
Initiation of Show Cause Proceedings Against Cherry, 94 F.P.S.C. 1:361, 388-390
(1994) (the FPSC has rejected as improper for reconsideration complaints regarding
3 Supra did make reference to the Cherry standard in its February 27, 2002, Motion for Oral Arguments, ¶39. (R15-2976).
3 its post-hearing procedures). A formal objection would have been futile.
D. IMPROPER USE OF STAFF
The FPSC cites to no authority for its assertion that any proceeding that lacks a show cause order, a prosecutor, and punitive relief must be characterized as a rate- making proceeding. (See pg. 24 Answer Brief). This Court in Southern Bell Tel. and
Tel. Co. V. Florida Pub. Serv. Comm’n., 453 So.2d 780, 781 (Fla. 1984), found that
Section 364.07(2), Florida Statutes, was “a proper assignment of quasi-judicial authority” to the FPSC. In order to adjudicate a dispute under this provision, the
FPSC must exercise its quasi-judicial authority. A dispute arising under § 364.07(2) would lack a show cause order, a prosecutor and punitive relief - still the FPSC would be exercising quasi-judicial authority.
The legal substantive distinction between Legal Environment Assistance
Foundation, Inc. v. Clark, 668 So. 2d 982, 985 (Fla. 1996) and Cherry
Communications, Inc. v. Deason, 652 So. 2d 803 (Fla. 1995) was that the former was a quasi-legislative rate-making proceeding and the latter was a quasi-judicial proceeding.
The key to determining whether the FPSC is engaged in its quasi-legislative rate- making authority, is whether the FPSC actually engages in setting rates during a proceeding. None of the issues raised in 1305 involved rates. All of the disputes
4 involved terms and conditions for services and elements. The reason why none of the issues involved rates is because the FPSC sets the rates for resale and unbundled network elements in separate quasi-legislative rate-making proceedings. For
BellSouth’s territory in this State the rates were set in three separate orders: PSC-01-
1181-FOF-TP, PSC-01-2051-FOF-TP and PSC-02-1311-FOF-TP. These rates are automatically incorporated into the agreement ultimately approved.
The FPSC suggests that these rates are simply a “fallback, because the parties always have the option of agreeing by themselves.” (Pg. 24 Answer Brief). Real world experience, however, dictates that BellSouth never agrees to rates lower than those set by the FPSC. Accordingly, rates are never a part of the arbitration process.
The FPSC asserts that Congress “did not require anything beyond the state commission’s normal quasi-legislative ratemaking standard of due process.” (Pg. 25
Answer Brief). The FPSC cites to no authority for this proposition. This argument is legally irrelevant to this Court’s review. As an aside, though, §§ 251 and 252 of the
Act are in fact silent regarding due process. Under the FPSC’s earlier jurisdictional argument, this would mean that any federal district court would be foreclosed from reviewing the due process standards applied during the proceeding. If due process is not addressed in the Act, then the district court cannot determine if the FPSC has
“complied with the Act.”
5 The FPSC next argues that it is not necessary to guard against violations of a parties’ basic procedural due process rights because of the lack of financial resources available to the FPSC. (Pg. 26, Answer Brief). This argument has already been rejected. See Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d. 799 (1963)
(Court found that counsel must be provided for defendants unable to employ counsel). It only follows that if the State is required to assume the full costs of representation for a defendant, the State is most assuredly required to appropriate enough funds to ensure that adequate staff is assigned to a specific proceeding to guarantee basic procedural due process.
The FPSC next argues that it is necessary to have participated in the creation of the record, in order to be able to review the record to make a decision on the merits. (Answer Brief, Pg. 26). This is not true.4 The evidentiary hearing for 1305 lasted for barely two days: September 26 and 27, 2001. Under Cherry this Court expects that the Commissioners will hear the evidence for the first time at the evidentiary hearing. Supra submits that post-hearing staff could do the same. Then
4 See Supra’s Response to FPSC’s Motion for Attorney’s fees and costs, for explanation of how recommendation was reviewed and modified by senior staff who never participated in the discovery phase or evidentiary hearing: David Dowds, Sally Simmons, Beth Salak, Walter D’Haeseleer. Had Logue remained she too would have participated in the drafting of the recommendation.
6 post-hearing staff could review and evaluate the record and draft an advisory memorandum for the Commissioners. In theory, the Commissioners are supposed to review the advisory opinion with a critical “eye.” This Court in Cherry found it
“significant” that the Commission adopted in substantial form the advisory memorandum drafted by the staff. Cherry Communications, Inc. v. Deason, 652
So.2d 803, 805 (Fla. 1995). Likewise, in this case, the FPSC adopted the staff’s recommendation in its final order verbatim. See (R14-2698) Revised
Recommendation; (R27-5345) March 5th Agenda Conference Transcript; and (R16-
3021) March 26th initial Final Order. This Court expects the FPSC to be Commission driven and not staff driven. Accordingly, the merits of Supra’s claim regarding post- hearing procedures in a quasi-judicial proceeding deserve consideration.
II. RES JUDICATA IS INAPPLICABLE TO PER CURIUM OPINION
Article V, Section 3(b)(2) as implemented by Section 364.381, Florida Statutes, provides that all matters relating to utilities service for electric, gas or telephone are required to be appealed directly to the Florida Supreme Court. Given this mandate, it is unclear whether the DCA even had subject matter jurisdiction to begin with to review the Petition for Mandamus. See also Rule 9.030(a)(3), Florida Rules of Appellate
Procedure (The rule expressly contemplates that such writs may be issued against state
7 officers and state agencies.). For all practical purposes, lack of subject matter jurisdiction was the likely basis for the denial.
The appeal to this Court involves a separate a distinct subject matter than the
Petition filed with the DCA. This appeal involves a review of the agency’s post- hearing procedures and the lack of State procedural due process afforded Supra in
1305. This is not an appeal of the DCA’s denial of the Writ.
The Writ of Mandamus was filed with the First District Court of Appeal on June
7, 2002. The purpose of a mandamus is to compel a government official to perform a legal obligation. Moody v. Moddy, 705 So.2d 708 (Fla. 1st DCA 1998). At the time this DCA Petition was filed neither the Commission nor the Commissioner’s, individually, had acted on the pending motions. The DCA Petition and this appeal are not identical merely because the same evidence is present in both. See Andujar v.
National Property and Casualty Underwriters, 659 So.2d 1214,1216 (Fla. 4th DCA
1995) (Causes of action are not “identical merely because the same evidence would establish” both actions).
The general principles behind the doctrine or res judicata only apply when the elements are present and the doctrine is applied. Albrecht v. State of Florida, 444
So.2d 8, 12 (Fla. 1984). One of these elements is that there be a final judgment on the merits of a matter actually litigated. Id. What is relevant is that Supra’s request for
8 emergency action on a Writ of Mandamus was premised on the FPSC’s refusal to address Supra’s motions. The elements of res judicata require that the issues regarding
Supra’s State procedural due process rights and the agency’s post-hearing procedures must have “actually” been litigated. Albrecht v. State of Florida, 444 So.2d 8, 12 (Fla.
1984). These issues were not actually litigated before the DCA. See Kolander v.
Weeks, 916 F.Supp.1042, 1046-7 (U.S. D. Oregon 1996) (stating that actually litigated means that the matter raised “was essential to a final determination on the merits in the prior proceeding.”).
Neither the FPSC nor BellSouth can produce any conclusive proof, to this
Court, that the evidence of the FPSC’s conduct regarding Supra’s State procedural due process rights was “essential” to the DCA’s determination in refusing to hear
Supra’s emergency Petition for Mandamus. Accordingly, this element of res judicata cannot be met. Albrecht v. State of Florida, 444 So.2d 8, 12 (Fla. 1984) (res judicata
“only applies when the elements are present and the doctrine is properly applied”).
The denial by the DCA cannot be considered res judicata.
Commissioner Jaber and Palecki’s orders denying recusal were finally issued after Supra’ Petition was filed - contrary to the FPSC implication of the reverse. (See
Pg. 27 Answer Brief). A total of 55 days had elapsed since the filing of Supra’s initial motion for recusal. Once the Commissioner’s entered their orders there no longer
9 existed an emergency in which the DCA needed to address. The Petition for Writ was thereafter denied on June 11, 2002. A denial by the DCA “decides nothing except that we chose not to grant the writ.” Florida Real Estate Commission v. Harris, 124 So.2d
785, 787 (Fla. 1961). See also Bared & Company v. McGuire, 670 So.2d 153 157-
158 (Fla. 4th DCA 1996) (“The district court’s entire opinion consists of the words
‘certiorari denied’, and there is no means by which we, or anyone else, can determine exactly what action the district court took. . . . Such a denial cannot be construed as passing upon any of the issues in the litigation . . . and would not be res judicata as to the issues raised . . .”); See also Southern Bell Telephone & Telegraph Company v. Bell, 116 So.2d 617, 619 (Fla. 1959).
Likewise, in Supra’s case, the First DCA’s entire opinion consists of the word
“denied.” There is no means by which this Court, or anyone else, can determine exactly what action the district court took. For all practical purposes, mootness could have been the likely basis for the denial. More importantly, though, mootness involving a relief separate and distinct from the review sought in Supreme Court.
The cases cited by FPSC, including its supplemental authority, all involve the impact of this Court’s discretion to accept certiorari pursuant to Article V Section
3(b)(3) of the Florida Constitution. Supra has filed this appeal pursuant to Article I
Section 9 and Article V Section 3(b)(2) of the Florida Constitution - and not 3(b)(3).
10 Article V Section 3(b)(2) as implemented by Section 364.381, Florida Statutes, seeks to invoke the Court’s original jurisdiction and not its discretionary jurisdiction.
“Article V, section 3(b)(3) creates and defines two separate concepts.” The
Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988). “The first is a general grant of discretionary subject-matter jurisdiction, and the second is a constitutional command as to how the discretion itself may be exercised.” Id. Section 3(b)(3) relates only to this Court’s discretionary jurisdiction to review decisions that are “expressly and directly” in conflict. Jenkins v. State, 385 So.2d 1356, 1357 (Fla. 1980); See also Dodi
Publishing Company v. Editorial America, S.A., 385 So.2d 1369 (Fla. 1980) (“The jurisdiction of this Court . . . is controlled by section 3(b)(3) of Article V . . .”).
It is for this reason that a District Court’s opinion must contain “some statement or citation in the opinion that hypothetically could create conflict if there were another opinion reaching a contrary result.” The Florida Star v. B.J.F., 530 So.2d 286, 288
(Fla. 1988). The single word “affirmed” or “denied” without more, will not suffice to invoke this Court’s discretionary subject-matter jurisdiction pursuant to 3(b)(3). For this reason alone, it is correct to state that for the purposes of 3(b)(3) only a district court opinion rendered without opinion or citation constitutes a decision from the highest state court empowered to hear the cause and will not be considered in conflict with other appellate jurisdictions. See Florida Star v. BJF, 530 So. 2d 286, 288 (Fla.
11 1988). This conclusion, however, has no legal relevance to this Court’s original jurisdiction pursuant to Article I Section 9 and Article V Section 3(b)(2) of the Florida
Constitution. This is not an appeal of the DCA’s denial of the Writ. Rather this is the first appeal Supra has taken regarding the merits of the agency’s post-hearing procedures and the lack of State procedural due process afforded Supra in 1305.
III. SECTION 364.162, IS NOT AN EXPRESS DELEGATION
There is no dispute that the “clear and unambiguous” legislative intent of Section
364.162(1), Florida Statutes, is to confer quasi-legislative power upon the FPSC to revisit a previously set rate or price contained in a previously approved resale or interconnection agreement. This conclusion is consistent the maxim that “there is no need to resort to other rules of statutory construction when the language of the statute is unambiguous and conveys a clear and ordinary meaning. Verizon Florida, Inc. v.
Jacobs, Jr., 27 Fla. L. Weekly S137 (Fla. 2002). On May 25, 2001, the FPSC issued
Order No. PSC-01-1181-FOF-TP in which the Commission cited to §§ 364.161 and
364.162, Florida Statutes, for the purpose of invoking its jurisdiction to set rates for unbundled network elements. This Court has repeatedly affirmed that the FPSC’s essential function is as a “regulator of rates.” Southern Bell Tel. and Tel. Co. V.
Florida Pub. Serv. Comm’n., 453 So.2d 780, 783 (Fla. 1984).
12 Supra does not dispute that the Commission has the authority, in its quasi- legislative capacity, to “revisit” previously approved rates or prices – irrespective of whether those rates or prices are contained in a Commission order or a previously approved interconnection agreement or resale agreement. Supra’s dispute involves the
FPSC’s legal conclusion that the plain and ordinary language of Section 364.162(1),
Florida Statutes, can be “interpreted” to confer upon the Commission the quasi- judicial power to adjudicate breach of contract disputes involving matters other than previously approved “rates” or “prices” – and any related terms and conditions inextricably intertwined with those rates or prices.
“Ambiguity suggests that reasonable persons can find different meanings in the same language.” Rollins v. Pizzarelli, 761 So.2d 294 297 (Fla. 2000). (Underline added for emphasis). Reasonable persons can differ regarding whether the language utilized by the Florida legislature in Section 364.162(1), Florida Statutes, is in fact an express delegation of quasi-judicial authority. When a provision “is susceptible to more than one reasonable interpretation, it is necessary to resort to principles of statutory construction to ascertain legislative intent.” Id. See also Streeter v. Sullivan, 509 So.2d
268, 271 (Fla. 1987) (where the court held that where statutory provisions are “even slightly ambiguous, an examination of legislative history and statutory construction principles [is] necessary”).
13 Florida “legislature is presumed to know the existing law when it enacts a statute.” (Citation omitted). M. Joshua v. City of Gainesville, 768 So.2d 432, 438 (Fla.
2000). The Florida legislature is presumed to know existing “judicial decisions on the subject” as well. Id. Accordingly, it must be presumed that the Florida legislature had knowledge of Southern Bell Tel. and Tel. Co. V. Florida Pub. Serv. Comm’n., 453
So.2d 780, 783 (Fla. 1984) when it amended Section 364.162(1). This Court in
Southern Bell Tel. and Tel. Co. V. Florida Pub. Serv. Comm’n., found that the terms utilized by the Florida legislature in Section 364.07(2) was a proper delegation of quasi-judicial authority. In 364.07(2), the Florida legislature utilized specific terms such as “adjudicate disputes” and “regarding such contracts.” The first phrase is very specific and the second is purposely broad encompassing the entire contract. Section
364.162(1) uses none of the language found in 364.07(2).
Section 364.162(1) uses terms like “arbitrate” a dispute as opposed to the term
“adjudicate” disputes found in 364.07(2). Furthermore, the legislature expressly limited the scope of 364.162(1) by employing the phrase “regarding interpretation of
. . . prices,” as opposed to the much broader phrase of “regarding such contracts.”
When read in conjunction the terms “arbitrate disputes . . . regarding interpretation of prices” makes clear that the FPSC’s role is limited to reviewing and resolving disputes involving rates and prices only. It is well settled that “[w]here [the Florida legislature]
14 includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that [the Florida legislature] acts intentionally and purposely in the disparate inclusion or exclusion.” BellSouth
Telecommunications, Inc. v. MCIMetro Access Transmission Services Inc., 2003 WL
76991, pg. 5 (11th Cir. 2003) citing Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 78 L.Ed.2d 17 (1983).
Section 364.162 lacks the specific terms and phrases utilized in s. 364.07(2).
Therefore, the Florida legislature intentionally and purposely intended that s.
364.162(1) would have a different and more limiting scope. Accordingly, while s.
364.07(2) can be considered a proper delegation of quasi-judicial authority, the same cannot be said of s. 364.162(1). For this reason, the FPSC cannot cite to s. 364.162(1) to resolve breach of contract disputes arising under previously approved interconnection agreements. The scope of review is limited to rates or prices.
Conclusion
For the reasons set forth in this Reply Brief and Supra’s Initial Brief, this Court should remand this matter for another hearing consistent with the principles in Cherry or such other relief this Court deems appropriate. With respect to the interpretation of
Section 364.162, Florida Statutes, this Court should vacate the decision.
15 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Nancy B. White, Esq. BellSouth Telecommunications, Inc., c/o Nancy Sims, 150 South Monroe Street, Suite 400, Tallahassee, FL 32301; Jack Reiter, Esq., Adorno & Yoss, P.A., 2601 South Bayshore Drive, Suite 1600, Miami, Florida 33133; Richard Bellak, Esq., Florida Public Service Commission, 2540 Shumard Oak Blvd., Tallahassee, FL 32399-0850, on this 26th day of February, 2003.
Brian W. Chaiken Jorge L. Cruz-Bustillo SUPRA TELECOMMUNICATIONS & INFORMATION SYSTEMS, INC. 2620 S.W. 27th Avenue Miami, Florida 33131 Tel: (305) 476-4248 Fax: (305) 443-9516
By:
JORGE L. CRUZ-BUSTILLO Florida Bar No. 0976441 BRIAN W. CHAIKEN Florida Bar No. 0118060
16 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS
I CERTIFY that the foregoing complies with the font requirements of Fla. R.
App. P. 9.210(a)(2) by being submitted in Times New Roman, 14 Point Font.
By: ______JORGE L. CRUZ-BUSTILLO Florida Bar No. 0976441