Posted by: Patricia Salkin | August 20, 2020

PA Supreme Court Holds Distributed Antenna System Networks are Public Utilities Under the Pennsylvania Public Utility Code

This post was authored by Matthew Loescher, Esq.

Appellees, Crown Castle NG East LLC and Pennsylvania-CLEC LLC, operated Distributed Antenna System (“DAS”) networks. Crown Castle’s DAS networks provided telecommunications transport services to Wireless Service Providers (“WSP”), such as AT&T Wireless, Verizon Wireless, T-Mobile, and others. The WSPs offered “commercial mobile radio service” (“CMRS”) to retail end-users. This appeal arose following the Commonwealth Court’s holding that Distributed Antenna System (“DAS”) networks were public utilities under the Pennsylvania Public Utility Code, reversing the Pennsylvania Public Utility Commission’s (“PUC”) interpretation of the definition of “public utility.”

On appeal, the PUC alleged that the Commonwealth Court failed to accord proper deference to its interpretation of the statute it was responsible for enforcing. Crown Castle argued that statutory construction is a judicial function, and courts must disregard an agency’s interpretation that is inconsistent with a statute’s plain language. The court found it was not required to defer to an administrative agency’s interpretation of the plain meaning of an unambiguous statute, as statutory interpretation was a question of law for the court.

After concluding the PUC’s interpretation of Section 102 was not entitled to deference, the court next analyzed whether the Commonwealth Court erred in determining that the PUC’s interpretation of the definition of “public utility” was inconsistent with the language of Section 102. The record reflected that DAS network operators provided services to WSPs and did not have a business relationship with the WSP’s customers: the CMRS subscribers. As such, the DAS network operators did not provide an “interconnected service” because they did not “give subscribers the capability to communicate to or receive communication from all other users on the public switched network.” As such, the DAS network operators’ service in this case was not a CMRS under the federal regulations nor a synonymous “mobile domestic cellular radio telecommunications service” under Section 102(2)(iv). As the court noted, Section 102(2)(iv) did not exclude an entity that owns or operates equipment or facilities that assists another company in furnishing CMRS. Accordingly, the Commonwealth Court’s holding that the PUC’s interpretation was inconsistent with the plain language of Section 102 was affirmed.

Based on the aforementioned, the court held DAS network operators did not provide CMRS because DAS network operators “own no spectrum, need no phone numbers, and their contractual relationship was solely with the WSPs, not with the retail cell phone use. Thus, DAS network operators were not excluded from the definition of public utility by Section 102(2)(iv). The decision of the Commonwealth Court was therefore affirmed.

Crown Castle NG East, LLC v Pennsylvania Public Utility Commission, 2020 WL 4152006 (PA 7/21/2020)

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