The disappearance of the Public Services Commission’s chairman during a critical vote Tuesday afternoon once again stalled a petition for reconsideration that was meant to resolve issues surrounding an application by Momentum Telecom to provide landline service within the territory.
The reconsideration process has been stymied by issues surrounding the PSC’s role in being allowed to approve Momentum’s application and, more specifically, by efforts made by Chairman Johann Clendinen to include services such as internet, Voice over Internet Protocol and wireless under the “telecommunications” umbrella that the PSC regulates.
Over the last five months, companies such as AT&T have testified against Clendinen’s claims that the PSC has the jurisdiction to approve Momentum’s application and the PSC’s initial decision to approve Momentum’s application was remanded to a hearing examiner tasked with reevaluating the case in May.
That hearing examiner is also Clendinen, who during Tuesday’s special meeting on St. Thomas made clear in his final report that his position on the matter had not changed. Speaking during the meeting, which had been turned over to Vice Chairman Andrew Rutnik, Clendinen concluded that:
– the PSC’s original decision on Momentum’s application was appropriate and within the PSC’s jurisdiction;
– the PSC should “ensure jurisdiction over the broader category of “unified telecommunications” to include broadband, wireless, wireline, VoIP, information services and middle mile infrastructure to the extent not preempted by law or FCC orders
– and the PSC has the appropriate and continuing requirement “to examine the changing landscape of telephone services in the territory and provide regulatory oversight including rate structures where appropriate.”
Clendinen’s recommendations were met with the same opposition from attorneys Mark Kragel and Maria Takensen Hodge, representing AT&T and the Cellular Telephone Industries Assoc., who said Federal Communications Commission rules do not allow for all the services to be “put into one blender.”
“The FCC has said they are distinct and different and are not to be combined,” said Kragel, who added that any move to expand the PSC’s oversight over various “telecommunications” services should be addressed by the Legislature and not the commission.
“The Legislature has looked at this issue before and, if they wanted to touch it, they would have,” Kragel said. “Now a simple decision on a certificate application has, for months, been locked up in this debate when even Momentum has said from the beginning that it did not need the commission to sign off on providing services in the territory.”
A back and forth between the commission and lawyers followed – with both sides saying that the other was simply repeating points that had been made at previous meetings – along with additional testimony by PSC consultants Boyd Sprehn and Georgetown Consulting Group.
At the end of about an hour of discussion, PSC member Raymond Williams called for a five-minute break; during that time, several commission members went from the conference room into the PSC’s back offices and, after a few minutes, began filtering back into the conference room.
After about 15 minutes, commission members called for the meeting to begin again but, at that point, no one could find Clendinen. Williams called for the meeting to resume and, with Clendinen still absent during quorum call, a motion was made to adjourn the meeting.
“Nobody knows where he is,” Williams said. “But I’m not going to just sit here and wait. We all have things to do.”
Clendinen came back in a few minutes later and was able to answer some questions from The Source about his dual role as PSC chairman and hearing examiner, which he said was not a conflict of interest.
Clendinen said the PSC has tapped other members in the past to serve as hearing examiners on other dockets and, in each case, there is an effort to make sure the two roles do not overlap.
“I have been careful to split the duties of commissioner and hearing examiner, and I have abstained from all voting on this matter, so there is no conflict of interest,” he added.
While there was no resolution on Momentum’s application, the PSC did send out a letter late Tuesday night explaining Clendinen’s whereabouts during the returning quorum call.
“When the quorum call was made and established, we discovered the chairman was upstairs in the director’s office, where no one thought to look,” PSC Executive Director Donald “Ducks” Cole said in Tuesday’s statement. “In fact, he was busy texting the director and two of the commissioners regarding the long recess.”
“The vote taken to recess the meeting was premature and it’s important to clarify the record. Chairman Clendinen did not abandon his responsibilities and obligations to the commission,” Cole said. “It was never the chairman’s intention to either dissolve the quorum or preempt a vote.”