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In re Application No. C-4981 of Beau Toben

Court of Appeals of Nebraska

November 19, 2019

In re Application No. C-4981 of Beau Toben.
v.
Nebraska Public Service Commission ET AL., APPELLEES. Windstream Communications, Inc., appellant.

         1. 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.

         2. 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.

         3. 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 than another.

         4. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

         5. ___:___.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.

         6. 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.

         7. 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.

         8. 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 served.

         9. 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.

         10. 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.

          Appeal from the Public Service Commission.

          Blake E. Johnson and Katherine J. Spohn, of Bruning Law Group, for appellant.

          Douglas J. Peterson, Attorney General, and L. Jay Bartel for appellee Nebraska Public Service Commission.

          Riedmann, Bishop, and Arterburn, Judges.

          Bishop, Judge.

         INTRODUCTION

         Beau 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 ...


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