In re Application No. C-4981 of Beau Toben.
Nebraska Public Service Commission ET AL., APPELLEES. Windstream Communications, Inc., appellant.
Public Service Commission: Appeal and Error.
Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), an
appellate court reviews an order of the Nebraska Public
Service Commission de novo on the record.
Appeal and Error. In a review de novo on the
record, an appellate court reappraises the evidence as
presented by the record and reaches its own independent
conclusions concerning the matters at issue.
Administrative Law: Appeal and Error. When
an appellate court makes a de novo review, it does not mean
that the court ignores the findings of fact made by the
agency and the fact that the agency saw and heard the
witnesses who appeared at its hearing. Where the evidence is
in conflict, the appellate court will consider and may give
weight to the fact that the agency hearing examiner observed
the witnesses and accepted one version of the facts rather
Statutes: Appeal and Error. Statutory
interpretation is a question of law that an appellate court
resolves independently of the trial court.
___:___.In examining the language of a statute, its language
is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
Statutes: Legislature: Intent. A court may
inquire into legislative history when a statute is open to
construction because its terms require interpretation or may
reasonably be considered ambiguous.
Statutes: Appeal and Error. When construing
a statute, an appellate court must look to the statute's
purpose and give to the statute a [27 Neb.App. 774]
reasonable construction which best achieves that purpose,
rather than a construction which would defeat it.
Statutes: Intent: Appeal and Error. In
construing a statute, an appellate court looks to the
statutory objective to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose to be
Statutes: Appeal and Error. An appellate
court construes statutes relating to the same subject matter
together to maintain a sensible and consistent scheme, so
that effect is given to every provision.
Administrative Law: Appeal and Error. It is
appropriate, even under a de novo standard of review, to
adhere to the common practice among appellate courts to
afford appropriate deference to the findings of the agency
before which the record was created.
from the Public Service Commission.
E. Johnson and Katherine J. Spohn, of Bruning Law Group, for
Douglas J. Peterson, Attorney General, and L. Jay Bartel for
appellee Nebraska Public Service Commission.
Riedmann, Bishop, and Arterburn, Judges.
Toben filed an application with the Nebraska Public Service
Commission (PSC) seeking advanced telecommunications service,
or broadband service, for a home he was building a few miles
west of Doniphan, Nebraska. Toben claimed he was not
receiving, and would not within a reasonable time receive,
such service through the "Hansen Exchange" of
Windstream Communications, Inc. (Windstream). He wished to
modify his exchange service area so he could receive such
service from the "Doniphan Exchange" of Hamilton
Telecommunications (Hamilton). The PSC granted Toben's
application to revise the exchange boundaries. Windstream
appeals, claiming the PSC was not authorized to grant the
application because the evidence showed that ...