MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	178	
Docket:	   PUC-16-398	
Argued:	   April	11,	2017	
Decided:	  August	15,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
     ENHANCED	COMMUNICATIONS	OF	NORTHERN	NEW	ENGLAND,	INC.	
                                 	
                                v.	
                                 	
                PUBLIC	UTILITIES	COMMISSION	et	al.	
	
	
HUMPHREY,	J.	

      [¶1]		Enhanced	Communications	of	Northern	New	England,	Inc.,	appeals	

from	an	order	of	the	Public	Utilities	Commission	granting	in	part	and	denying	

in	 part	 a	 petition	 for	 a	 certificate	 of	 public	 convenience	 and	 necessity	 to	

operate	as	a	competitive	local	exchange	carrier.		See	35-A	M.R.S.	§§	2102,	2105	

(2016).		Enhanced	contends	that	the	Commission’s	partial	denial	is	unlawful	

and	unsupported	by	substantial	evidence.		We	affirm	the	order.	

                                   I.		BACKGROUND	

	     [¶2]	 	 Enhanced	 is	 a	 Delaware	 corporation	 that	 sells	 communications	

services,	 including	 long	 distance	 telephone	 and	 data	 services,	 and	 is	 a	

wholly-owned	direct	subsidiary	 of	FairPoint	Communications,	Inc.		FairPoint	

is	 an	 incumbent	 local	 exchange	 carrier	 (ILEC).	 	 On	 June	 23,	 2015,	 Enhanced	
2	

filed	a	petition	with	the	Commission	pursuant	to	35-A	M.R.S.	§	2102	to	obtain	

a	     certificate	       of	     public	      convenience	           and	      necessity	        to	     furnish	

telecommunications	 service	 as	 a	 competitive	 local	 exchange	 carrier	 (CLEC).1		

Because	 an	 application	 by	 a	 CLEC	 to	 operate	 in	 the	 same	 regional	 service	

territory	as	an	affiliated	ILEC	presented	a	novel	issue,	on	August	13,	2015,	the	

Commission	 held	 an	 informal	 technical	 conference	 to	 gather	 information	

about	 intended	 service	 plans	 and	 the	 relationship	 between	 Enhanced	 and	

FairPoint.2	 	 Several	 parties	 and	 stakeholders	 attended	 the	 informal	 technical	

conference,	including	representatives	from	FairPoint,	the	Office	of	the	Public	

Advocate	 (OPA),	 Time	 Warner	 Cable	 (TWC),	 and	 the	 CLEC	 Association	 of	

Northern	 New	 England	 (CANNE).	 	 OPA,	 TWC,	 and	 CANNE	 all	 submitted	

comments	to	the	Commission	regarding	Enhanced’s	petition.		



     1	 	 A	 local	 exchange	 carrier	 (LEC)	 is	 “any	 person	 that	 is	 engaged	 in	 the	 provision	 of	 telephone	

exchange	 service	 or	 exchange	 access.”	 	 35-A	 M.R.S.	 §	 102(9-E)	 (2016).	 	 ILECs	 are	 entities	 (or	
successors	 to	 those	 entities)	 that	 held	 regional	 monopolies	 over	 local	 telephone	 service	 prior	 to	
deregulation,	when	the	federal	Telecommunications	Act	of	1996,	Pub.	L.	No.	104-104,	110	Stat.	56	
(codified	as	amended	in	scattered	sections	of	47	U.S.C.S.),	required	ILECs	to	unbundle	parts	of	their	
telecommunications	 networks	 to	 allow	 CLECs	 to	 enter	 the	 market.	 	 See	 35-A	 M.R.S.	 §	102(9-B)	
(2016);	Verizon	New	Eng.,	Inc.	v.	Pub.	Utils.	Comm’n,	2005	ME	64,	¶	2,	875	A.2d	118.		CLECs	utilize	
ILEC	infrastructure.			
   	
        A	 number	 of	 FairPoint	 subsidiaries	 operate	 in	 Maine	 as	 affiliated	 ILECs,	 including	 China	
Telephone	 Company,	 Standish	 Telephone	 Company,	 Community	 Service	 Telephone	 Co.,	 Maine	
Telephone	 Company,	 Sidney	 Telephone	 Company,	 Northland	 Telephone	 Company	 of	 Maine,	 Inc.,	
and	Northern	New	England	Telephone	Operations,	LLC.		
   	
   2	 	 FairPoint	 and	 its	 affiliated	 ILECs	 are,	 unless	 otherwise	 noted,	 referred	 to	 collectively	 in	 this	

opinion	as	FairPoint.	
                                                                                        3	

	     [¶3]	 	 On	 March	 21,	 2016,	 the	 Commission	 staff	 recommended	 that	 the	

Commission	grant	Enhanced’s	petition	to	the	extent	that	Enhanced	would	be	

allowed	to	operate	as	a	CLEC	in	all	Maine	exchanges	except	for	those	in	which	

FairPoint,	or	an	affiliate	or	subsidiary,	already	provided	service	as	an	ILEC.		On	

June	 20,	 2016,	 the	 Commission	 issued	 an	 order	 largely	 adopting	 the	

recommended	decision,	granting	Enhanced’s	petition	in	part,	but	denying	it	to	

the	extent	that	Enhanced	sought	to	provide	service	as	a	CLEC	in	service	areas	

where	 FairPoint,	 or	 an	 affiliate	 or	 subsidiary,	 already	 provided	 service	 as	 an	

ILEC.		

	     [¶4]	 	 The	 Commission	 found	 that	 Enhanced	 (1)	 satisfied	 the	 definition	

of	 a	 local	 exchange	 carrier	 because	 it	 will	 provide	 local	 exchange	 service	 in	

Maine,	 (2)	 possessed	 the	 financial	 and	 technical	 capabilities	 to	 provide	 local	

exchange	 service	 in	 the	 state,	 and	 (3)	 satisfied	 the	 definition	 of	 a	 CLEC	

because	it	is	not	an	ILEC.		The	Commission	noted,	however,	that	whether	the	

public	convenience	and	necessity	required	that	Enhanced	provide	service	as	a	

CLEC	 throughout	 Maine	 “present[ed]	 a	 complicated	 question”	 because	 an	

entity	wholly-owned	by	an	ILEC	seeking	to	provide	service	in	the	same	service	

territory	as	that	ILEC	was	a	matter	of	first	impression.		
4	

          [¶5]		The	Commission	observed	that	if	Enhanced	provided	service	in	the	

same	service	territories	as	FairPoint,	it	was	not	clear	that	a	benefit	would	be	

realized	 in	 the	 form	 of	 increased	 competition.	 	 The	 Commission	 articulated	

several	concerns	raised	by	the	parties,	including	that,	because	of	its	corporate	

relationship	with	FairPoint,	Enhanced	could	gain	favorable	access	and	use	of	

common	 facilities	 and	 resources,	 customer	 data,	 pricing,	 prioritization	 of	

service	 calls,	 and	 other	 competitive	 advantages	 over	 other	 CLECs.	 	 The	

Commission	 found,	 according	 to	 Enhanced’s	 representations	 at	 the	

conference,	 that	 Enhanced’s	 petition	 to	 obtain	 CLEC	 authorization	 was	 not	

motivated	 by	 a	 desire	 to	 provide	 new	 or	 additional	 service	 to	 customers—

“Enhanced	 identified	 only	 a	 single	 activity	 that	 its	 current	 lack	 of	 CLEC	

authorization	 prohibits:	 the	 ability	 to	 requisition	 local	 telephone	 numbering	

resources,”	 in	 particular	 “thousand-number	 blocks	 of	 consecutive	 telephone	

numbers.”3	 The	 Commission	 acknowledged	 that	 “[a]ccess	 to	 numbering	

resources	 by	 LECs	 is	 subject	 to	 [Federal	 Communication	 Commission]	 rules	

and	 the	 guidelines	 established	 by	 [the	 North	 American	 Numbering	 Plan	

Administrator],	which	are	designed	to	preserve	limited	numbering	resources,”	

     3	 	 The	 Commission	 noted	 that	 ILECs	 such	 as	 FairPoint	 are	 sometimes	 unable	 to	 acquire	 large	

sequential	number	blocks	because	they	already	have	a	supply	of	unused,	nonconsecutive	numbers	
and	Federal	Communication	Commission	(FCC)	rules	limit	access	to	additional	numbers	until	those	
numbers	 are	 sufficiently	 exhausted.	 	 Large	 blocks	 of	 consecutive	 numbers	 are	 valuable	 because	
they	are	sought	by	business	customers.			
                                                                                       5	

but	 concluded,	 citing	 a	 longstanding	 Commission	 policy	 to	 use	 number	

resources	efficiently	to	preserve	the	single	207	area	code	in	Maine,	that	it	was	

not	 in	 the	 public	 convenience	 and	 necessity	 to	 grant	 Enhanced’s	 petition	 to	

operate	 throughout	 the	 entire	 state.	 	 The	 Commission	 therefore	 partially	

denied	 the	 petition	 insofar	 as	 Enhanced	 sought	 to	 operate	 in	 the	 same	

territory	 as	 FairPoint,	 and	 emphasized	 that	 the	 partial	 denial	 alleviated	 the	

competition	 concerns	 raised	 by	 parties	 in	 the	 informal	 technical	 conference.		

The	Commission	concluded	by	stating:	

      The	 Commission’s	 partial	 dismissal	 of	 Enhanced’s	 petition	 is	
      without	 prejudice	 to	 file,	 in	 a	 separate	 Docket,	 another	 petition	
      specifically	 requesting	 authority	 to	 operate	 within	 the	 service	
      territories	 of	 the	 FairPoint	 ILECs.	 	 Any	 such	 petition	 should	
      address	 the	 anti-competitive	 and	 numbering	 concerns	 raised	 by	
      the	Commission	and	the	parties	to	this	proceeding.	
      	
      [¶6]	 	 Enhanced	 filed	 a	 petition	 to	 reconsider	 the	 decision	 on	 July	 11,	

2016.		The	Commission	did	not	act	upon	the	petition	and	thus	it	was	denied	by	

operation	 of	 law	 on	 August	 1,	 2016.	 	 See	 9	 C.M.R.	 65	 407	 110-12	 §	11(D)	

(2013).	 	 Enhanced	 timely	 appealed.	 See	 35-A	 M.R.S.	 §	 1320	 (2016);	 M.R.	

App.	P.	2.	
6	

                                   II.		DISCUSSION	

A.	   Standard	of	Review	

	     [¶7]		Our	review	of	a	Commission	decision	is	deferential	and	limited	“to	

determining	 whether	 the	 agency’s	 conclusions	 are	 unreasonable,	 unjust,	 or	

unlawful	in	light	of	the	record.”		Pine	Tree	Tel.	&	Tel.	Co.	v.	Pub.	Utils.	Comm’n,	

634	 A.2d	 1302,	 1304	 (Me.	 1993).	 	 “This	 court	 generally	 refuses	 to	

second-guess	 agencies	 on	 matters	 within	 their	 expertise.”	 	 Id.	 	 “In	 reviewing	

an	agency’s	interpretation	of	its	own	rules,	regulations,	or	procedures,	we	give	

considerable	deference	to	the	agency	.	.	.	.”		Forest	Ecology	Network	v.	Land	Use	

Regulation	Comm’n,	2012	ME	36,	¶	28,	39	A.3d	74	(quotation	marks	omitted).		

When	reviewing	an	agency’s	interpretation	of	its	own	regulation,	we	begin	by	

“determin[ing]	de	novo	whether	the	[regulation]	is	reasonably	susceptible	of	

different	interpretations	and	therefore	ambiguous.”		See	Cent.	Me.	Power	Co.	v.	

Pub.	 Utils.	 Comm’n,	 2014	 ME	 56,	 ¶¶	 18-19,	 90	 A.3d	 451	 (quotation	 marks	

omitted).	 	 “[I]f	 the	 language	 is	 unambiguous,	 we	 interpret	 the	 [regulation]	

according	to	its	plain	language.”		Arsenault	v.	Sec’y	of	State,	2006	ME	111,	¶	11,	

905	A.2d	285.		
                                                                                                7	

    B.	    Certificate	of	Public	Convenience	and	Necessity	

    	      [¶8]		A	CLEC	may	not	provide	service	in	a	municipality	where	another	

    utility	 is	 furnishing	 or	 authorized	 to	 furnish	 service	 unless	 it	 obtains	

    Commission	 approval	 pursuant	 to	 35-A	 M.R.S.	 §§	 2102	 and	 2105.	 	 Section	

    2105	 requires	 that	 to	 approve	 an	 additional	 utility	 where	 a	 utility	 already	

    provides	 service,	 the	 Commission	 must	 make	 “a	 declaration,	 after	 public	

    hearing	of	all	parties	interested,	that	public	convenience	and	necessity	require	

    a	 2nd	 public	 utility.”	 	 35-A	 M.R.S.	 §	 2105(1).	 	 Section	 4(A)	 of	 Chapter	 280	 of	

    the	 Commission’s	 regulations	 similarly	 provides	 for	 approval	 “by	 making	 a	

    declaration	 that	 the	 public	 convenience	 and	 necessity	 require	 an	 additional	

    public	utility.”		9	C.M.R.	65	407	280-4	§	4(A)	(2003).		The	regulation	sets	forth	

    three	specific	findings	that	are	required	before	a	declaration	can	be	made.		See	

    id.	

           Approval	 to	 provide	 any	 service	 shall	 not	 be	 issued	 unless	 the	
           applicant	has	presented	sufficient	evidence	for	the	Commission	to	
           make	the	following	findings:	
           	
	          (1)		The	applicant	has	adequate	financial	ability	and	willingness	to	
           cover	any	customer	advances	and	deposits;	and	to	pay	intrastate	
           access	 charges	 and	 interconnection	 charges	 on	 all	 intrastate	
           telecommunications	services;	
           	
	          (2)		The	applicant	(other	than	a[n]	interexchange	carrier	that	is	a	
           reseller	 or	 [a]	 local	 exchange	 carrier	 that	 provides	 service	 solely	
           through	 resale	 of	 local	 service	 purchased	 from	 a	 wholesale	
    8	

            schedule	of	another	LEC)	has	the	technical	ability	to	measure	and	
            record	intrastate	traffic	information	and	billing	amounts	that	may	
            be	 necessary	 for	 the	 calculation	 of	 access	 and	 interconnection	
            charges;	and	
	
	           (3)		The	applicant	is	willing	and	able	to	comply	with	State	law	and	
            Public	 Utilities	 Commission	 rules,	 including,	 but	 not	 limited	 to,	
            this	Chapter.	
	
    Id.		

            [¶9]		There	is	no	dispute	that	Enhanced	met	all	three	criteria	set	forth	in	

    section	 4(A)(1)-(3)—the	 Commission	 found	 that	 Enhanced	 had	 the	 financial	

    and	technical	capability	to	provide	service	and	did	not	find	that	Enhanced	was	

    unwilling	 or	 unable	 to	 comply	 with	 the	 law.	 	 The	 central	 issue	 presented	 in	

    this	 appeal	 is	 whether	 the	 Commission	 could,	 after	 making	 those	 findings,	

    nonetheless	 deny	 Enhanced’s	 petition	 for	 a	 certificate	 of	 public	 convenience	

    and	 necessity	 (CPCN)	 to	 provide	 service	 in	 the	 same	 service	 territory	 as	

    FairPoint	 on	 public	 interest	 grounds	 because	 of	 concerns	 about	 number	

    resources	and	anti-competitive	behavior.			

            [¶10]	 	 The	 Commission	 reads	 section	 4(A)	 to	 require	 not	 only	 that	 a	

    utility	 meet	 the	 three	 criteria	 specified	 in	 that	 provision,	 but	 also	 that	 the	

    Commission	 determine	 that	 the	 petition	 is	 in	 the	 public	 necessity	 and	

    convenience,	 which	 the	 Commission	 interprets	 as	 the	 public	 interest.		

    Enhanced	 argues	 that	 an	 additional	 public	 interest	 requirement	 does	 not	
                                                                                                                   9	

appear	in	the	statutes	or	regulations,	and	that	it	is	beyond	the	Commission’s	

power	to	impose	here	absent	rulemaking.			

         [¶11]		Although	section	4(A)	does	not	list	a	“public	interest”	or	“public	

benefit”	 factor	 among	 the	 three	 listed	 criteria,	 the	 unambiguous	 language	 of	

the	 regulation	 provides	 that,	 before	 granting	 a	 CPCN,	 the	 Commission	 must	

make	 a	 “declaration	 that	 the	 public	 convenience	 and	 necessity	 require	 an	

additional	 public	 utility.”	 	 9	C.M.R.	 65	 407	 280-4	 §	 4(A).	 	 Contrary	 to	

Enhanced’s	 contention,	 the	 regulation	 does	 not	 compel	 the	 Commission	 to	

grant	the	petition	if	only	the	three	criteria	set	forth	in	9	C.M.R.	65	407	280-4	

§	4(A)	 are	 met.	 	 Instead,	 the	 three	 criteria	 set	 forth	 in	 section	 4(A)	 are	

threshold	 or	 predicate	 considerations	 that	 are	 necessary,	 but	 not,	 standing	

alone,	sufficient	to	grant	a	petition.		The	Commission	must	further	declare	that	

an	 additional	 utility	 is	 in	 the	 public	 interest.4	 	 The	 regulation	 does	 not,	 for	

example,	 state	 that	 if	 the	 Commission	 makes	 the	 three	 enumerated	 findings	

that	it	must	grant	the	petition.		Rather,	section	4(A)	permits	the	Commission,	

after	considering	the	evidence,	to	ultimately	conclude	that	an	additional	utility	

is	not	in	the	public	interest,	and	to	deny	a	petition	on	that	basis.	
   4		 We	 construe	 “public	 convenience	 and	 necessity”	 as	 synonymous	 with	 “public	 benefit”	 or	
“public	 interest.”	 	 See	 Zachs	 v.	 Dep’t	 of	 Pub.	 Utils.,	 547	 N.E.2d	 28,	 32	 (Mass.	 1989)	 (“[T]he	 phrase	
‘public	 convenience	 and	 necessity’	 is	 a	 term	 of	 art	 that	 stands	 for	 the	 general	 notion	 of	 ‘public	
interest.’		Other	courts	have	agreed	that	the	phrase	is	simply	a	conclusory	symbol	for	public	benefit,	
good,	or	interest.”	(citations	omitted)	(quotation	marks	omitted));	see	also	In	re	Chapman,	151	Me.	
68,	71,	116	A.2d	130,	132	(1955).	
10	

      [¶12]		Construing	the	plain	language	of	9	C.M.R.	65	407	280-4	§	4(A),	we	

conclude	that	an	applicant	must	demonstrate	that	the	public	convenience	and	

necessity	 require	 an	 additional	 utility	 and	 thus	 that	 the	 Commission	 did	 not	

err	in	considering	the	public	interest.	

C.	   Whether	 the	 Commission	 Lawfully	 Denied	 Enhanced’s	 Petition	 on	
      Public	Interest	Grounds.	
	     	
      [¶13]	 	 Enhanced	 further	 argues	 that	 even	 assuming	 9	C.M.R.	 65	 407	

280-4	§	4(A)	contains	a	public	interest	criterion,	the	Commission’s	decision	is	

unlawful	 and	 unsupported	 by	 substantial	 evidence.	 	 Specifically,	 Enhanced	

contends	that	(1)	nothing	prohibits	Enhanced	from	seeking	a	CPCN	in	part	to	

acquire	 numbers	 and,	 in	 any	 event,	 number	 conservation	 is	 exclusively	 the	

realm	 of	 federal	 regulatory	 control;	 (2)	 the	 Commission’s	 concerns	 about	

Enhanced	 engaging	 in	 anti-competitive	 behavior	 were	 speculative	 and	

unsupported	by	substantial	evidence;	and	(3)	the	decision	does	not	articulate	

a	 clear	 standard	 as	 to	 what	 Enhanced	 must	 establish	 to	 alleviate	 the	

Commission’s	concerns	about	number	resources	and	competition.			

      [¶14]	 	 Before	 addressing	 the	 merits	 of	 Enhanced’s	 arguments,	 we	

reiterate	several	relevant	findings	for	context.		According	to	the	Commission,	

Enhanced’s	 petition	 for	 a	 CPCN	 to	 operate	 as	 a	 CLEC	 in	 the	 same	 service	

territories	as	affiliated	FairPoint	ILECs	presented	an	issue	of	first	impression.		
                                                                                        11	

For	 that	 reason,	 the	 Commission	 held	 an	 informal	 technical	 conference	 to	

gather	 further	 information	 and	 to	 solicit	 comments	 from	 interested	 parties.		

The	 Commission	 found,	 based	 on	 Enhanced’s	 representations	 at	 the	

conference,	 that	 (1)	 Enhanced	 sought	 authorization	 as	 a	 CLEC	 in	 order	 to	

acquire	 local	 telephone	 number	 resources;	 (2)	 Enhanced	 did	 not	 intend	 to	

offer	 any	 service	 that	 is	 not	 already	 offered	 to	 customers	 in	 those	 service	

territories;	 and	 (3)	 there	 was	 no	 service	 that,	 without	 authorization	 for	

Enhanced	 to	 provide	 service	 as	 a	 CLEC,	 Enhanced	 or	 FairPoint	 would	 be	

unable	 to	 offer.	 	 The	 Commission	 concluded	 that	 the	 public	 necessity	 and	

convenience	 would	 not	 be	 furthered	 by	 granting	 Enhanced’s	 petition	 to	

provide	 service	 as	 a	 CLEC	 solely	 for	 the	 purpose	 of	 acquiring	 blocks	 of	

sequential	numbers.		

       [¶15]	 	 It	 is	 undisputed	 that	 Enhanced	 had	 the	 burden	 of	 proof	 to	

establish	that	it	met	all	applicable	criteria	to	obtain	approval	for	a	CPCN,	and	

further,	 as	 the	 party	 seeking	 to	 vacate	 the	 agency’s	 decision,	 that	 it	 has	 the	

burden	of	persuasion	on	appeal.		See	Kelley	v.	Me.	Pub.	Emps.	Ret.	Sys.,	2009	ME	

27,	 ¶	 16,	 967	 A.2d	 676.	 	 “When	 an	 agency	 concludes	 that	 the	 party	 with	 the	

burden	of	proof	failed	to	meet	that	burden,	we	will	reverse	that	determination	

only	if	the	record	compels	a	contrary	conclusion	to	the	exclusion	of	any	other	
12	

inference.”		Id.		For	the	reasons	set	forth	above,	Enhanced’s	burden	included	

establishing	that	the	public	interest	required	an	additional	utility.		See	9	C.M.R.	

65	407	280-4	§	4(A).		Enhanced	does	not	challenge	the	Commission’s	factual	

findings	 regarding	 Enhanced’s	 service	 plans	 and	 motivation	 to	 obtain	

numbers.		Notably,	and	more	importantly,	Enhanced	fails	to	articulate	or	point	

to	 any	 evidence	 showing	 why	 the	 Commission	 was	 compelled	 to	 find	 that	

granting	 the	 petition	 was	 in	 the	 public	 interest.	 	 Instead,	 Enhanced	 asserts	

that	because	the	three	criteria	set	forth	in	9	C.M.R.	65	407	280-4	§	4(A)(1)-(3)	

were	satisfied,	it	was	entitled	to	a	CPCN,	and	the	reasons	that	the	Commission	

cited	 in	 denying	 the	 petition—number	 resource	 conservation	 and	 anti-

competitive	concerns—cannot	sustain	the	decision.		We	disagree.			

        [¶16]	 	 Enhanced	 is	 correct	 that	 number	 resource	 conservation	 is	 a	

subject	 committed	 to	 federal	 regulatory	 control.5	 	 The	 Commission’s	 stated	

concerns	 about	 the	 depletion	 of	 numbers	 within	 the	 207	 area	 code	 did	 not,	

however,	 amount	 to	 an	 unlawful	 encroachment	 upon	 federal	 regulatory	

power.	 	 Rather,	 the	 Commission’s	 stated	 concern	 addressed	 the	 undisputed	

   5		The	FCC	has	“exclusive	jurisdiction	over	those	portions	of	the	North	American	Numbering	Plan	

that	pertain	to	the	United	States.”		47	U.S.C.S.	§	251(e)(1)	(LEXIS	through	Pub.	L.	No.	115-45).		The	
North	American	Numbering	Plan	(NANP)	is	administered	by	the	North	American	Numbering	Plan	
Administrator	 (NANPA).	 	 See	 47	 C.F.R.	 §	 52.13(a)	 (2017).	 	 The	 FCC	 has	 implemented	 number	
conservation	policies	designed	to	“prolong	the	life	of	the	[NANP].”		See	Sprint	Corp.	v.	FCC,	331	F.3d	
952,	 955	 (D.C.	 Cir.	 2003)	 (quotation	 marks	 omitted).	 	 The	 FCC’s	 regulatory	 authority	 to	 manage	
number	 resources	 is	 exclusive,	 except	 where	 the	 FCC	 has	 delegated	 authority	 to	 state	 and	 local	
governments.		See	id.	at	960.	
                                                                                       13	

motivation	 for	 Enhanced’s	 petition	 and	 constituted	 a	 valid	 exercise	 of	 the	

Commission’s	 power	 to	 determine	 whether	 granting	 the	 petition	 was	 in	 the	

public	 interest.	 	 See	 35-A	 M.R.S.	 §	 2105(1);	 9	 C.M.R.	 65	 407	 280-4	 §	 4(A).		

Similarly,	 the	 Commission	 did	 not	 affirmatively	 find	 that	 Enhanced	 would	

engage	in	anti-competitive	behavior,	but	concluded,	in	light	of	the	undisputed	

relationship	between	Enhanced	and	FairPoint	and	the	comments	submitted	as	

part	 of	 the	 technical	 conference	 proceeding,	 that	 the	 petition	 warranted	

additional	 investigation	 before	 the	 Commission	 could	 declare	 that	 granting	

the	CPCN	was	in	the	public	interest.			

      [¶17]	 	 Contrary	 to	 Enhanced’s	 contentions,	 the	 Commission	 did	 not	

contravene	 federal	 law.	 	 The	 federal	 Telecommunications	 Act	 (the	 TelAct)	

governs	state	regulatory	power	in	the	area	of	telecommunications	service:	

      (a)		 In	 general.	 No	 State	 or	 local	 statute	 or	 regulation,	 or	 other	
      State	or	local	legal	requirement,	may	prohibit	or	have	the	effect	of	
      prohibiting	 the	 ability	 of	 any	 entity	 to	 provide	 any	 interstate	 or	
      intrastate	telecommunications	service.	
      	
      (b)		State	regulatory	authority.	Nothing	in	this	section	shall	affect	
      the	 ability	 of	 a	 State	 to	 impose,	 on	 a	 competitively	 neutral	 basis	
      and	 consistent	 with	 section	 254	 [47	 USCS	 §	 254],	 requirements	
      necessary	 to	 preserve	 and	 advance	 universal	 service,	 protect	 the	
      public	 safety	 and	 welfare,	 ensure	 the	 continued	 quality	 of	
      telecommunications	 services,	 and	 safeguard	 the	 rights	 of	
      consumers.	
      	
47	U.S.C.S.	§	253(a)-(b)	(LEXIS	through	Pub.	L.	No.	115-45).	
14	

       [¶18]	 	 Although	 state	 commissions	 have	 limited	 power	 to	 prohibit	

entities	from	entering	the	market	to	provide	telecommunications	service,	the	

power	 to	 impose	 requirements	 necessary	 to	 protect	 the	 public	 interest	 is	

explicitly	conferred	upon	state	commissions	by	section	253(b).		See	47	U.S.C.S.	

§	253(b)	(LEXIS)	(“Nothing	in	this	section	shall	affect	the	ability	of	a	State	to	

impose,	 on	 a	 competitively	 neutral	 basis	 .	 .	 .	 requirements	 necessary	 to	 .	 .	 .	

protect	the	public	safety	and	welfare	.	.	.	.”);	see	also	Verizon	New	Eng.,	Inc.	v.	

Pub.	Utils.	Comm’n,	2005	ME	64,	¶	22,	875	A.2d	118.		We	are	also	unpersuaded	

that	the	Commission’s	decision	is	not	“competitively	neutral”	because	it	treats	

Enhanced	differently	due	to	its	affiliation	with	FairPoint.		47	U.S.C.S.	§	253(b)	

(LEXIS).		That	affiliation	is	certainly	relevant	to	whether	granting	Enhanced	a	

CPCN	 is	 in	 the	 public	 convenience	 and	 necessity,	 particularly	 given	

Enhanced’s	 service	 plans	 and	 apparent	 motivation	 to	 obtain	 numbers.	 	 Any	

disparate	 treatment	 was	 not	 unlawful	 because,	 as	 the	 Commission	 found,	

there	is	no	comparable	entity	with	the	same	affiliate	relationship	seeking	the	

authorization	 that	 Enhanced	 sought	 for	 the	 purpose	 of	 obtaining	 numbers,	

and	it	was	not	clear	that	a	benefit	would	be	realized	in	the	form	of	increased	

competition.	 	 Although	 federal	 law	 promotes	 active	 competition	 in	

telecommunications	 markets,	 the	 entry	 of	 an	 additional	 CLEC	 into	 the	 same	
                                                                                      15	

market	as	its	affiliated	ILEC	is	not	necessarily	in	the	public	interest.		See	Appeal	

of	Bretton	Woods	Tel.	Co.,	56	A.3d	1266,	1275	(N.H.	2012)	(“[Section	253(a)	of	

the	 TelAct]	 does	 not	 evince	 Congress’s	 determination	 that	 competition	 in	 a	

single	service	territory	always	is	in	the	public	good.		The	[Commission]	must	

still	make	this	determination.”).		The	Commission	did	not	contravene	federal	

law	by	imposing	a	requirement	upon	Enhanced	due	to	its	unique	status.			

      [¶19]	 	 In	 light	 of	 the	 Commission’s	 findings	 that	 Enhanced	 will	 not	

provide	any	new	or	additional	service,	and	the	purpose	of	the	application	was	

to	acquire	sequential	number	blocks,	the	record	does	not	compel	a	conclusion	

that	 granting	 the	 petition	 is	 in	 the	 public	 interest.	 	 Enhanced	 points	 to	 no	

evidence	in	the	record	that	compels	a	conclusion	contrary	to	that	reached	by	

the	 Commission	 and	 thus	 has	 failed	 in	 its	 burden.	 	 We	 defer	 to	 the	

Commission’s	 expertise	 in	 this	 matter	 and	 to	 its	 findings	 supporting	 the	

conclusion	that	granting	the	petition	would	not	further	the	public	convenience	

and	necessity.		See	Office	of	the	Pub.	Advocate	v.	Pub.	Utils.	Comm’n,	2015	ME	

113,	 ¶	 15,	 122	 A.3d	 959	 (stating	 that	 Commission	 decisions	 are	 reviewed	

deferentially	 with	 due	 recognition	 for	 the	 agency’s	 technical	 expertise);	 Pine	

Tree	Tel.	&	Tel.	Co.	v.	Pub.	Utils.	Comm’n,	631	A.2d	57,	61	(Me.	1993)	(“We	are	

particularly	reluctant	to	substitute	our	judgment	for	that	of	the	[C]ommission	
16	

because	 of	 the	 institutional	 deference	 we	 pay	 to	 its	 expertise;	 we	 are	 not	 a	

super-commission.”).	

      [¶20]	 	 Lastly,	 we	 reject	 Enhanced’s	 argument	 that	 a	 public	 interest	

criterion	 is	 a	 “rudderless”	 standard	 that	 is	 unreasonably	 difficult	 to	

understand.	 	 A	 petitioner	 has	 the	 burden	 of	 proof	 to	 establish	 that	 granting	

the	CPCN	is	in	the	public	convenience	and	necessity,	i.e.,	has	some	benefit	to	

the	 public	 and	 not	 merely	 its	 own	 business	 interest.	 	 See	 In	 re	 Chapman,	

151	Me.	68,	71,	116	A.2d	130,	132	(1955)	(“[T]he	convenience	and	necessity,	

proof	 of	 which	 the	 statute	 requires,	 is	 the	 convenience	 and	 necessity	 of	 the	

public,	 as	 distinguished	 from	 that	 of	 any	 individual,	 or	 group	 of	 individuals.”	

(quoting	 In	 re	 Stanley,	 133	 Me.	 91,	 93,	 174	 A.	 93,	 94-95	 (1934)).	 	 Such	 a	

standard	 is	 a	 lawful	 requirement	 that	 comports	 with	 the	 statute,	 regulation,	

and	federal	law.		See	Level	3	Commc’ns	of	Va.	v.	State	Corp.	Comm’n,	604	S.E.2d	

71,	 75	 (Va.	 2004)	 (rejecting	 argument	 that	 a	 broad	 public	 interest	 standard	

gave	 the	 Commission	 “unfettered	 discretion”	 to	 deny	 a	 CPCN	 petition	 and	

concluding	that	such	a	broad	standard	did	not	amount	to	an	unlawful	barrier	

pursuant	to	47	U.S.C.S.	§	253(a)	(LEXIS)).		

      [¶21]	 	 The	 Commission,	 based	 on	 Enhanced’s	 own	 representations	

about	its	motivations	to	seek	a	CPCN,	concluded	that	granting	the	petition	was	
                                                                                      17	

not	in	the	public	convenience	and	necessity.		Because	the	decision	comported	

with	the	applicable	regulation,	federal	law,	and	the	evidence	presented	to	the	

Commission,	we	affirm	the	Commission’s	order.	

         The	entry	is:	

                            Order	 of	 the	 Public	 Utilities	 Commission	
                            affirmed.		
	
	      	      	    	     	       	
	
Sean	M.	Galvin,	Esq.,	FairPoint	Communications,	Manchester,	New	Hampshire,	
and	 Catherine	 R.	 Connors,	 Esq.	 (orally),	 Pierce	 Atwood	 LLP,	 Portland,	 for	
appellant	Enhanced	Communications	of	Northern	New	England,	Inc.	
	
Jordan	 D.	 McColman,	 Esq.	 (orally),	 and	 Mitchell	 M.	 Tannenbaum,	 Esq.,	 Public	
Utilities	Commission,	Augusta,	for	appellee	Public	Utilities	Commission	
	
Robin	A.	Casey,	Esq.,	Enoch	Kever	PLLC,	Harpswell,	for	appellee	Time	Warner	
Cable	Information	Systems,	LLC	
	
Elizabeth	 J.	 Wyman,	 Esq.	 (orally),	 and	 Robert	 A.	 Creamer,	 Esq.,	 Office	 of	 the	
Public	Advocate,	Augusta,	for	appellee	Office	of	the	Public	Advocate	
	
	
Public	Utilities	Commission	docket	number	2015-00185	
FOR	CLERK	REFERENCE	ONLY	
