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In the Matter of the Application of

April 22, 2013

IN THE MATTER OF THE APPLICATION OF CORAL WIRELESS, LLC D/B/A MOBI PCS FOR ANNUAL CERTIFICATION AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER IN THE STATE OF HAWAII


APPEAL FROM THE PUBLIC UTILITIES COMMISSION STATE OF HAWAII, (AGENCY DOCKET NO. 2012-0084)

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION

(By: Nakamura, Chief Judge, Foley and Ginoza, JJ.)

Upon review of the record on appeal, it appears that we lack jurisdiction over Intervenors-Appellants Sandwich Isles Communications, Inc., and Pa Makani, LLC's (collectively Appellants Sandwich Isles Communications and Pa Makani), appeal from the following two orders that Appellee State of Hawaii Public Utilities Commission (the PUC) *fn1 entered in an administrative proceeding in Docket No. 2012-0084: (1) a September 7, 2012 order dismissing Appellants Sandwich Isles Communications and Pa Makani's motion to intervene in the PUC's administrative proceeding (hereinafter "the September 7, 2012 order denying intervention"), and

(2) a November 27, 2012 order denying Appellants Sandwich Isles Communications and Pa Makani's motion for reconsideration of the September 7, 2012 order denying intervention (hereinafter the "November 27, 2012 order denying reconsideration").

We initially note that Applicant-Appellee Coral

Wireless, LLC, dba Mobi PCS (Appellee Coral Wireless) initiated the administrative proceeding by filing an application with the PUC for annual certification as an eligible telecommunications carrier pursuant to 47 C.F.R. § 54.314 (2012). Subsection (a) of 47 C.F.R. § 54.314 provides:

§ 54.314 Certification of support for eligible telecommunications carriers.

(a) Certification. States that desire eligible telecommunications carriers to receive support pursuant to the high-cost program must file an annual certification with the Administrator and the Commission stating that all federal high-cost support provided to such carriers within that State was used in the preceding calendar year and will be used in the coming calendar year only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. High-cost support shall only be provided to the extent that the State has filed the requisite certification pursuant to this section.

(Emphasis added). Appellants Sandwich Isles Communications and Pa Makani filed a motion to intervene in this PUC administrative proceeding for Appellee Coral Wireless's application, which resulted in the PUC entering the September 7, 2012 order denying intervention. The PUC eventually ended the administrative proceeding by entering a September 10, 2012 decision and order approving Appellee Coral Wireless's application. As non-parties, Appellants Sandwich Isles Communications and Pa Makani are appealing from the September 7, 2012 order denying intervention. Appellants Sandwich Isles Communications and Pa Makani additionally seek appellate review of the November 27, 2012 order denying reconsideration pursuant to Rule 4(a)(3) of the Hawaii Rules of Appellate Procedure (HRAP). See HRAP Rule 4(a)(3) ("The notice of appeal shall be deemed to appeal the disposition of all post-judgment motions that are timely filed after entry of the judgment or order.").

Administrative appeals commence in a circuit court "except where a statute provides for a direct appeal to the intermediate appellate court[.]" HRS § 91-14(b) (1993 & Supp. 2012). "Matters relating to the PUC are governed by HRS ch. 269." Peterson v. Hawaii Electric Light Company, Inc., 85 Hawaii 322, 327, 944 P.2d 1265, 1270 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999). HRS § 269-15.5 (2007) authorizes an aggrieved person to appeal from certain final orders of the PUC directly to the Hawaii Intermediate Court of Appeals: § 269-15.5. Appeals.

An appeal from an order of the public utilities commission under this chapter shall lie subject to chapter 602, in the manner provided for civil appeals from the circuit courts. Only a person aggrieved in a contested case proceeding provided for in this chapter may appeal from the order, if the order is final, or if preliminary, is of the nature defined by section 91-14(a). The commission may elect to be a party to all matters from which an order of the commission is appealed, and the commission may file appropriate responsive briefs or pleadings in the appeal; provided that where there was no adverse party in the case below, or in cases where there is no adverse party to the appeal, the commission shall be a party to all matters in which an order of the commission is appealed and shall file the appropriate responsive briefs or pleadings in defending all such orders. The appearance of the commission as a party in appellate proceedings in no way limits the participation of persons otherwise qualified to be parties on appeal. The appeal shall not of itself stay the operation of the order appealed from, but the appellate court may stay the order after a hearing upon a motion therefor and may impose conditions it deems proper, including but not limited to requiring a bond, requiring that accounts be kept, or requiring that other measures be taken as ordered to secure restitution of the excess charges, if any, made during the pendency of the appeal, in case the order appealed from is sustained, reversed, or modified in whole or in part.

(Emphasis added).

In circuit court cases, the Supreme Court of Hawaii has held that "[a]n order denying an application for intervention under HRCP Rule 24 is a final appealable order under HRS § 641- 1(a)." Hoopai v. Civil Service Commission, 106 Hawaii 205, 215, 103 P.3d 365, 375 (2004) (citation omitted). "The appealability of such an order is based upon the collateral order doctrine." Id. (citation omitted). In the instant case, Appellants Sandwich Isles Communications and Pa Makani are not appealing from a circuit court case pursuant to HRS § 641-1(a), but, instead, Appellants Sandwich Isles Communications and Pa Makani are appealing from a PUC proceeding directly to the Hawaii Intermediate Court of Appeals pursuant to HRS § 269-15.5, which specifically provides that "[o]nly a person aggrieved in a contested case proceeding provided for in this chapter may appeal from the order, if the order is final, or if preliminary, is of the nature defined by section 91-14(a)." (Emphasis added). A contested case is "a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing." HRS 91-1(5) (1993) (emphases added). Thus, the Supreme Court of Hawaii has held that, [i]f the ...


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