Olmstead v. Department of Telecommunications and Cable, et al. (Lawyers Weekly No. 10-194-13)

CORDY, J.  In this case, we are asked to decide if the single justice erred, first, in concluding that G. L. c. 25, § 5, governs judicial review of a final order by the Department of Telecommunications and Cable regarding a consumer telephone service complaint and, second, in dismissing the plaintiff’s complaint because it failed to comply with the timely filing requirements of G. L. c. 25, § 5.  We affirm the single justice’s ruling that G. L. c. 25, § 5, applies to such appeals.  However, because the plaintiff was afforded a renewed opportunity to pursue an appropriate and timely appeal under G. L. c. 25, § 5, and has chosen to do so, we dismiss this case as moot.

1.  Background.  a.  The plaintiff’s initial claims.  This case arises from a consumer dispute regarding billing practices and quality of telephone, cable television, and Internet service provided by Verizon New England, Inc., to the plaintiff, a residential customer.  In December, 2009, the plaintiff filed an appeal and a claim for an adjudicatory hearing with the department, alleging that Verizon New England had violated the department’s Rules and Practices Relating to Telephone Service to Residential Customers, and had otherwise engaged in unfair and deceptive business practices.  The matter was assigned to a hearing officer, and after a tortuous procedural history, the claim was dismissed as moot because, in the course of the proceedings, the plaintiff’s customer relationship with Verizon New England had been terminated due to continuous nonpayment.  The plaintiff appealed the hearing officer’s decision to the Commissioner of the department, pursuant to 220 Code Mass. Regs. § 1.06(6)(d)(3) (2008).  On August 15, 2011, the Commissioner affirmed the ruling, on the ground that no relief remained available to the plaintiff once he ceased being a Verizon New England customer, and issued a final order denying the plaintiff’s appeal.

b.  Appellate proceedings.  Following the Commissioner’s final order, the plaintiff filed a complaint for judicial review of final agency action and for other relief with a single justice of the county court, articulating as the basis for jurisdiction our certiorari statute, G. L. c. 249, § 4.  The department argued that the county court lacked jurisdiction and that the complaint should be dismissed because the plaintiff’s appeal was governed by G. L. c. 25, § 5, and the plaintiff had failed to comply with its terms.  The single justice concluded that the appeal was governed by G. L. c. 30A, § 14, and ordered the case transferred to Superior Court.  However, on the department’s motion for reconsideration, the single justice held that the appeal is properly governed by G. L. c. 25, § 5, and within the jurisdiction of the county court, and vacated the order of transfer to the Superior Court.  The single justice then dismissed the plaintiff’s complaint, concluding that his failure to file the appeal within twenty days of service of the department’s final order, in violation of the requirements of G. L. c. 25, § 5, constituted a jurisdictional defect.  The plaintiff appealed to the full court, pursuant to G. L. c. 231, § 114.

The department’s regulations require that it provide notice that an appeal from a final order or decision is governed by G. L. c. 25, § 5.  See 220 Code Mass. Regs. § 1.13 (2008).  During oral argument before this court, it became clear that the department had not included such notice in the final order it issued to the plaintiff.  The department reissued the August 15, 2011, final order, dating it September 18, 2013, and including the previously omitted notice of a right to appeal pursuant to G. L. c. 25, § 5.  Two days later, the department filed in this court a motion to stay appellate proceedings, on the ground that it had given the plaintiff a renewed opportunity to pursue an appeal pursuant to G. L. c. 25, § 5.  We granted the motion to stay to enable the plaintiff to file a timely appeal of the September 18, 2013, order pursuant to G. L. c. 25, § 5, without waiving his arguments in this case, and subsequently denied the plaintiff’s motion for reconsideration of the order staying the proceedings.  We now lift the stay and proceed to decide the central procedural issue in the case.

2.  Discussion.  On appeal, the plaintiff argues that the single justice’s decision to dismiss his complaint on the ground that he failed to comply with the timely filing requirements of G. L. c. 25, § 5, was error because his appeal is governed by G. L. c. 30A, § 14, and therefore requires a transfer to the Superior Court for proceedings on the merits, or alternatively, due process requires that he be afforded the opportunity to pursue a proper appeal pursuant to G. L. c. 25, § 5, because the department initially failed to notify him of his right to appeal under this statute.  The department argues that the single justice did not err in concluding that G. L. c. 25, § 5, governs, and asks that we affirm the single justice’s dismissal of the plaintiff’s complaint.  We agree with the department that G. L. c. 25, § 5, is the applicable judicial review provision, and conclude that the plaintiff’s complaint here is rendered moot by his subsequent timely filing of a proper appeal.

a.  Applicable statute.  We first address whether G. L. c. 25, § 5, or G. L. c. 30A, § 14, applies.  This question is significant because appeals pursuant to G. L. c. 25, § 5, are entered with the single justice of the Supreme Judicial Court, whereas appeals pursuant to G. L. c. 30A, § 14, are filed in Superior Court.

We begin by analyzing the impact on the statutory scheme governing the department of a reorganization statute (act) enacted in 2007.  See St. 2007, c. 19, §§ 21-50.  The act divided the responsibilities of the former Department of Telecommunications and Energy into the reformed Department of Public Utilities and a new Department of Telecommunications and Cable.  See id.  It accomplished this by revising the definition of “department” in numerous chapters, including chapters 160, 161, and 166, to refer to either the Department of Public Utilities or the Department of Telecommunications and Cable.  See id. at §§ 32, 33, 43.  Further, the Act inserted chapter 25C to create the Department of Telecommunications and Cable and to task it with “the general supervision of telephone and telegraph companies subject to chapter 166 and community antenna television systems as defined in section 1 of chapter 166A.”  G. L. c. 25C, § 1, inserted by St. 2007, c. 19, § 29.  The Act also brought two divisions under the Department of Telecommunications and Cable:  a new division of telecommunications, provided for in G. L. c. 25C, §6, and the existing division of community antenna television, provided for in G. L. c. 166A, § 2.  St. 2007, c. 19, §§ 29, 50.  Therefore, the Department of Public Utilities and the Department of Telecommunications and Cable, including its two divisions, now fulfil the responsibilities previously held by the Department of Telecommunications and Energy.

General Laws c. 25C, the enabling statute for the Department of Telecommunications and Cable, does not contain a provision for judicial review of final department orders.  As a result, we turn to the other chapters in the statutory scheme.  The department argues that G. L. c. 166A, § 2, expressly states that appeals from all department orders are governed by G. L. c. 25, § 5.  The plaintiff contends that G. L. c. 166 (relating to the regulation of telephone companies) does not contain a similar provision and, further, that because the department’s enabling statute (G. L. c. 25C) does not contain a provision for judicial review, the Administrative Procedures Act, G. L. c. 30A, § 14, applies as the default.  In support of his argument, he argues, in essence, that G. L. c. 25C should be read to mean that the provisions of G. L. c. 166A apply only to community antenna television systems.  Were we to follow his line of reasoning, appeals from final orders relating to telephone and telegraph services would be governed by G. L. c. 30A, § 14, as G. L. c. 166 contains no judicial review provision, whereas appeals from final orders relating to cable services would be governed by G. L. c. 25, § 5, as dictated by G. L. c. 166A, § 2.

We are not persuaded, however, that in drafting G. L. c. 25C, § 1, the Legislature intended such parsing of appellate routes based on the type of service.  Rather, the plain meaning of the revised statutes, the historical statutory scheme, and the department’s own interpretation of the statutes suggest that appeals from all final department orders are governed by G. L. c. 25, § 5, at the direction of G. L. c. 166A, § 2.

i.  Plain meaning.  “A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.”  Sullivan v. Brookline, 435 Mass. 353, 360 (2001).  Thus, we give effect to a statute’s “plain and ordinary meaning” where the statute’s words are clear.  Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640 (2000).

The 2007 Act altered the definition of “department” in G. L. c. 166A, § 1, from “department of telecommunications and energy established pursuant to chapter 25″ to “department of telecommunications and cable established by chapter 25C.”  G. L. c. 166A, § 1, as amended by St. 2007, c. 19, § 49.  By redefining “department” in this way for the purposes of G. L. c. 166A, the Legislature created a clear link between the new G. L. c. 25C and the existing G. L. c. 166A.

Since 1997, G. L. c. 166A, § 2, has employed the term “department” in defining a process for judicial review.  See G. L. c. 166A, § 2, as amended by St. 1997, c. 164, § 273.  The section currently provides:  “Except as otherwise provided in this chapter, appeals taken from the orders of the department shall be taken in the same manner and according to the same procedure for the department of public utilities established in section 5 of chapter 25″ (emphasis added).  G. L. c. 166A, § 2.

It is only logical to employ the definition of “department” provided in G. L. c. 166A, § 1, to the term where it is used elsewhere in the chapter.  See Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 339 (2007) (“We construe the provisions of the Act in connection with the purpose of its enactment and as a harmonious whole”); Opinion of the Justices, 313 Mass. 779, 782 (1943), quoting G. L. (Ter. Ed.) c. 4, § 6, Third (“technical words and phrases . . . as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning”).

Accordingly, the word “department” in the judicial review provision of G. L. c. 166A, § 2, must refer to the entire Department of Telecommunications and Cable.  Although the placement of this judicial review provision may be confusing, its meaning is nonetheless clear:  the provisions of G. L. c. 166A, § 2, pertaining to judicial review extend to all final department orders.

This interpretation is further supported by what the Legislature did not change in its recent amendments to G. L. c. 166A, §§ 1 and 2.  We find it significant that the Legislature modified G. L. c. 166A, § 2, in 2007 and again in 2008 without replacing the word “department” with a more narrow term.  See St. 2007, c. 19, § 50 (replacing first paragraph of G. L. c. 166A, § 2, but preserving word “department”); St. 2008, c. 522, § 22 (same).  See also St. 2008, c. 522, § 21 (removing definition of “commission” from G. L. c. 166A, § 1, but preserving 2007 definitions of “division” and “department”).  Had the Legislature meant to limit the reach of this provision, it could have employed the word “division” or another more restrictive term.

ii.  Historical statutory scheme.  Our interpretation is consistent with the previous versions of the statute.  See Commonwealth v. Welosky, 276 Mass. 398, 401 (1931), cert. denied, 284 U.S. 684 (1932) (“Statutes are to be interpreted . . . in connection with their development . . .”).  Prior to the 2007 revisions, G. L. c. 25 applied to the Department of Telecommunications and Energy as a whole.  See St. 2007, c. 19, § 21 (changing “telecommunications and energy” in c. 25, § 1, to “public utilities”).  General Laws c. 25, § 5, which sets forth a detailed procedure for appealing a final department decision or order, remained unchanged by the 2007 revisions.  Thus, prior to 2007, all appeals from the former Department of Telecommunications and Energy were governed by G. L. c. 25, § 5.  Although the 2007 revisions divided the responsibilities of the Department of Telecommunications and Energy into two departments, the indication in G. L. c. 166A, § 2, that appeals should “be taken in the same manner . . . as set forth with respect to the department of public utilities” suggests a legislative intent to retain some uniformity across the two new departments.  See Hallett v. Contributory Retirement Appeal Bd., 431 Mass. 66, 69 (2000).  Parsing appeals by division within the Department of Telecommunications and Cable would frustrate such an intent.

We therefore discern no clear indication in the 2007 or 2008 revisions that the Legislature intended to exclude only those appeals relating to telecommunications from the appeals procedures employed by the former Department of Telecommunications and Energy.  Cf. Springfield v. Department of Telecomm. & Cable, 457 Mass. 562, 563 & n.3 (2010) (recognizing that G. L. c. 166A, § 2, governs “appeals seeking judicial review of decisions of the Department of Telecommunications and Cable” in context of appeal by cable television service provider from cable rate decision).

iii.  The department’s interpretation.  In addition, the department’s regulations are consistent with this reading of the statutory scheme.  See 220 Code Mass. Regs. 1.13 (“Department shall notify all parties of their right to appeal a final decision of the Department pursuant to [G. L.] c. 25, § 5, and of the time limits on their rights to appeal”).  Thus, the department has properly given effect to the Legislature’s expressed intent.  See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 & n.9 (1984) (Chevron).  Even if the intent of the Legislature were not so clear, we give deference to a reasonable interpretation by the agency implementing the statute, and would find the agency’s reading of the statutory scheme to be reasonable here.  See id. at 843-844 & n.11; Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 228-229 (2012); Goldberg v. Board of Health of Granby, 444 Mass. 627, 633-634 (2005).  Cf. Briggs v. Commonwealth, 429 Mass. 241, 252-253 (1999), citing Chevron, supra at 842 (deferring to reasonable interpretation by agency interpreting ambiguous statutory scheme).

Accordingly, we conclude that the single justice did not err in concluding that G. L. c. 25, § 5, governs appeals of final orders issued by the Department of Telecommunications and Cable to consumers.

b.  The single justice’s dismissal of complaint.  We next address whether the plaintiff is entitled to reinstatement of his complaint and relief on the merits.  When this case initially came before us, the department had failed to include in its final order clear notice to the plaintiff of his right to appeal pursuant to G. L. c. 25, § 5.  Such notice is required by the department’s regulations.  See 220 Code Mass. Regs. § 1.13.  However, by reissuing its final order with notice of the proper procedure for appeal, the department provided the plaintiff with precisely the relief he sought before the full court:  an opportunity to pursue his appeal.

In response, the plaintiff has filed a new petition for judicial review within the time period required by G. L. c. 25, § 5.  As a result, there is no longer a controversy before us.  See Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 111 (1953), quoting Tennessee v. Condon, 189 U.S. 64, 71 (1903).  See also Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984).  His complaint here is properly dismissed as moot, and he now may proceed with his new petition through the proper channels.  Cf. Moe v. Sex Offender Registry Bd., 444 Mass. 1009, 1009-1010 (2005) (appeal from dismissal of untimely request for judicial review was dismissed as moot because plaintiff was offered new opportunity to file timely and proper appeal); Matter of Sturtz, 410 Mass. 58, 58-59 (1991) (appeal of guardianship appointment was dismissed as moot because guardianship had been discharged by lower court after appeal was filed).

3.  Conclusion.  We affirm the ruling of the single justice that G. L. c. 25, § 5, governs appeals from final orders issued by the Department of Telecommunications and Cable.  Because the plaintiff has filed a new appeal pursuant to G. L. c. 25, § 5, which the department concedes is timely following the reissuance of its final order, the remainder of the matter before us has become moot.  The case is remanded to the county court for an entry of judgment dismissing the complaint as moot.  The plaintiff is free to proceed with his new petition.

So ordered.

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