The Law Office of Vincent Trivelli, PLLC 178 Chancery Row Morgantown, West Virginia 26505 Phone (304) 291-5223 e Toll Free 1-866-266-5948 Fax (304) 291-2240 e E-mail: [email protected] P.2 c.7 ..-z *” - ,‘a -c1 c-2 “Ti 3 0 *.~ a, 2 7-, c:> r3 _-I ~ -” c-- F February 18,2010 ___.-. --.-re-. i-2 ,.I -2 as r, c -;6’: c-3 24 rj> c;;-co 3 m 0 a r:l W Ms. Sandra Squire, Executive Secretary r,&L: 7.3 a -,I + Public Service Commission of West Virginia _I 0 0 c) P. 0. Box 812 i7-I -4 201 Brooks Street Charleston, WV 25323 RE: Citizens Telecommunications Company of West Virginia, dba Frontier Communications of West Virginia and Verizon West Virginia, Inc. Case No.09-0871-T-PC Dear Ms. Squire: Enclosed for filing in the above-styled and numbered case, please find the original and twelve (12) copies of the Public (Redacted) Version of the Initial Brief of the Communications Workers of America, AFL-CIO. Also enclosed is the original of the PROPRIETARY VERSION of the Initial Brief of the Communications Workers of America, AFL-CIO which is being filed under seal in this case. Copies of this Proprietary version are being served on the parties of record who have executed a Protective Agreement in this matter. If you have any questions, please feel free to contact me at (304) 291-5223. Thank you. Sincerely, Vincent Trivelli West Virginia Bar #SO1 5 Enclosures Cc: All parties of record 9 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON Case No. 09-0871-T-PC Citizens Telecommunications Company of West Virginia, dba Frontier Communications of West Virginia and Verizon West Virginia, Inc. Joint Petition for consent and approval of the transfer of Verizon’s local exchange and long distance business in West Virginia to companies to be owned and controlled by Frontier Communications Initial Brief of the Communications Workers of America, AFL-CIO The Communications Workers of America, AFL-CIO (hereinafter referred to as “CWA”) files this Initial Brief of the Communications Workers of America, AFL-CIO and in support thereof states as follows. Introduction As this Commission is well aware, the instant matter concerns a Joint Application by Frontier Communications Corporation (“Frontier”) and Verizon West Virginia, Inc. (“Verizon”)’ (herein referred to jointly as “Applicants”) for approval of the acquisition of Verizon by Frontier and for approval of the transfer of long distance customer accounts of certain Verizon affiliates to a company to be owned and controlled by Frontier. The Communications Workers of America, AFL-CIO (“CWA”) intervened in the matter in order to permit the Commission, CWA and the public to obtain complete information I Specifically, this is the joint application by Frontier Communications Corporation, New Communications Holdings, Inc., New Communications ILEC Holdings, Inc., New Communications Online and Long Distance, Inc., Verizon West Virginia Inc., Verizon Long Distance LLC and Verizon Enterprise Solutions, LLC. 1 about the proposed transaction and to evaluate the impact of the proposed transaction on CWA’s members, the public, and the State as a whole. Following discovery, four days of evidentiary hearing and extensive input from experts, public officials’ and lay people it is clear that the proposed transaction will clearly not meet the requirements of the law and is not in the public’s interest. The CWA therefore urges this Commission to reject the proposed transaction. The Requirements of the Law - It is also well established in the law of this state that “the primary purpose of the PSC is to ‘serve the interests of the public,’”(Lumberport-Shinnston Gas Co. v. Public Service Commission of W. Va., 165 W. Va. 762, 764, 271 S.E. 2d 438, 440 (1980) * The record is clear that the vast majority of elected officials that have filed comments on this matter have either urged this Commission to reject the proposed transaction or have raised very serious concerns. The number of elected officials that have informed this Commission of their opposition or concerns is a clear demonstration that this proposed transaction is not in the public interest. The comments of the elected officials again and again include examples of how the proposed transaction will have an adverse impact on the public. In light of this outpouring of opposition by elected officials the record does not support a finding by this Commission that the proposed transaction is in the public’s interest and does not adversely affect the public in this State. Specifically the following Legislators have urged this Commission to reject the proposed sale: Senators Truman Chafm, Douglas E. Facemire, and Jack Yost, Delegates Sam J. Argento, Larry W. Barker, Brent Boggs, Bonnie Brown, Greg Butcher, Ray Canterbury, Mike Caputo, Gerald Crosier, Jeff Eldridge, John N. Ellem, Timothy R. Ennis, Michael T. Ferro, Barbara Evans Fleischauer, John R. Frazier, Roy E. Givens, Daniel J. Hall, Bill Hamilton, Barbara Burruss Hatfield, Mark Hunt, Tal Hutchins, Richard J. Iaquinta, Orphy Klempa, K. Steven Kominar, William R. Laird IV, Tiffany Lawrence, Linda Longstreth, Tom Louisos, Tim Manchin, Michael N. Manypenny, 11, Charlene Marshall, Dave Martin, Rick Moye, Brady R. Paxton, David G. Perry, Dave Pethtel, Daniel J. Poling, Mary M. Poling, Meshea L. Poore, Ralph Rodighiero, Stan Shaver, Alex J. Shook, Doug Skaff, Jr., Sharon Spencer, Margaret Anne Staggers, Dale Stephens, Josh Stowers, Sally Susman, David A. Walker, Danny Wells, Larry Williams, and William R. Wooton. The following Legislators have raised serious concerns about the impact of the proposed sale on this State and its telecommunications system: Senators Edwin J. Bowman, Joseph M. Minard, Michael A. Oliverio, 11, Ron D. Stollings, John R. Unger 11, and Erik P. Wells, and Delegates Tom Azinger, Samuel J. Cann, Sr., Kevin J. Craig, Walter E. Duke, Nancy Peoples Guthrie, Virginia Mahan, Pat McGeehan, Carol D. Miller, Jim Morgan, Don C. Perdue, Margaret Donaldson Smith, Randy Swartzmiller, and Joe Talbott. In addition to legislators, several other public entities have expressed opposition and/or concern regarding the proposed transaction. For example, letters of concern were received from West Virginia State Attorney General, Darrel V. McGraw, Jr., the Roane County Commission, the Monroe County Commission, the Marion County Commission and citizens of the Community of Given, West Virginia. Those calling on the Commission to reject the proposed sale are: the Fayette County Commission, the Wirt County Commission, the Mayor of the Town of Belle, the City Manager of Clarksburg, the City of Glenville, the Boone County Commission and the Logan County Commission. 2 quoting Boaas, v. Public Service Commission, 154 W. Va. 146,154,174 S.E.2d 331, 336 (1970)); and that the PSC is empowered to regulate “in a manner that is just and reasonable and not contrary to the law.” (Lumberport-Shinnston supra, 764 quoting Delardas v. Morgantown Water Company, 148 W.Va. 776, 137 S.E.2d 426 (1964)). With regard to the instant matter, the Joint Applicants have applied for approval by this Commission pursuant to West Virginia Code 8 24-2-12 which prohibits utilities from undertaking certain actions, “Unless the consent and approval of the public service commission of West Virginia is first obtained.. .” Specifically, the Code section provides that the Commission, may grant its consent in advance or exempt from the requirements of this section all assignments, transfers, leases, sales or other disposition of the whole or any part of the franchises, licenses, permits, plants, equipment business or other property of any public utility, or any merger or consolidation thereof and every contract, purchase of stocks, arrangement, transfer or acquisition of control, or other transaction referred to in this section, upon proper showing that the terms and conditions thereof are reasonable and that neither party thereto is given an undue advantage over the other, and do not adversely affect the public in this state. The Code of West Virginia further provides that the Commission has the authority and the duty to “ensure fair and prompt regulation of public utilities in the interest of the using and consuming public” as well as to enforce and regulate the practices of public utilities in order to “provide the availability of adequate, economical and reliable utility services throughout the state.” (West Virginia Code 8 24-1 - 1(a)). Recently this Commission, with regard to the proposed sale of a utility, has noted that it is also “empowered to attach conditions that it deems proper to the transaction” (Hope Gas, Inc., Case No. 08- 1761-G-PC, Commission Order, December 22,2009, p. 9), and that the Commission requires “as an incident of that three-part test [West Virginia 3 Code 0 24-2-12], a showing that the buyer ... has, or as a result of the transaction will obtain, the knowledge, experience, and resources that allow it to conduct operations that provide adequate and reliable service at reasonable rates.” (Id., citing Hope Gas, Inc., Case No. 99-0462-G-PC, Commission Order, July 27, 1999)3 In that same matter, this Commission held that the requirements of reasonableness with regard to the terms and conditions of the proposed transaction and the impact of the proposed transaction on the public4 are “intertwined” and have a “‘forward-looking’ element to it and requires that the Commission evaluate how the new utility will function after the transaction has closed.” (Supra, pp. 9-1 0) The Commission’s actions in considering the instant matter, therefore must be guided by these factors with its jurisdiction and authority bordered by the “statute and the necessary implications there from.” (The Affiliated Construction Trades Foundation v. The Public Service Commission of West Virginia, Syl.