Bose McKinney & Evans

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Appellants-Petitioners, The Home Telephone Company of Pittsboro, Inc. (Home) and Communications Corporation of Indiana (CCI) (collectively, Appellants), appeal an Order of the Indiana Utility Regulatory Commission (IURC), which is defended by Appellees-Respondents, Verizon North, Inc., Contel of the South, Inc. d/b/a Verizon North Systems, MCI Communications Services, Inc. d/b/a Verizon Business Services, MCIMetro Access Transmission Services LLC d/b/a Verizon Access Transmission Services, Powertel/Memphis Inc. d/b/a T-Mobile, T-Mobile Central LLC d/b/a T-Mobile, Time Warner Telecom of Indiana, L.P., and Indiana Bell Telephone Company, Incorporated d/b/a AT&T Indiana (collectively, Appellees). The IURC was granted leave to intervene. Appellants raise three issues on appeal, which we restate as follows:

(1) Whether the IURC abused its discretion when it held that Section 10 of the Phase II Settlement Agreement precluded the Variance requested by Appellants;

(2) Whether the IURC deprived Appellants of their due process rights by rendering a decision on matters outside Appellants’ requested relief; and

(3) Whether the IURC abused its discretion when it required Appellants to modify their Qualification Test by excluding the impact of rate reductions that occurred in 2006.

Conclusion (slip op. at 11):  Affirmed.

Key Analysis (slip op. at 9, 10): The Appellants failed to raise the question of Section 10’s effective date before the administrative tribunal, they cannot now raise it for the first time on appeal . . . Appellants received notice and attended an evidentiary hearing with regard to their Petition for Variance and were not deprived of their due process rights . . . The IURC’s requirement to resubmit a new Qualification Test which did not incorporate the rate reductions requested by Appellants through their Variance Petition is merely a logical extension of its denial of Appellants’ Petition. An interpretation of a settlement agreement is not rulemaking.