US LEC of Tennessee, Inc. v. Tennessee Regulatory Authority

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 4, 2005 Session

US LEC OF TENNESSEE, INC. v. TENNESSEE REGULATORY
AUTHORITY

Appeal from the Tennessee Regulatory Authority
No. 02-00562 Sara Kyle, Chairman

No. M2004-01417-COA-R12-CV - Filed April 17, 2006

This appeal involves a dispute between two telecommunications services providers in the
Chattanooga market. A privately owned provider filed a complaint with the Tennessee Regulatory
Authority asserting that a competing provider owned by a municipal electric utility was receiving
an illegal cross-subsidy because the electric utility was permitting the provider to use its name
without compensation. One of the Authority’s hearing officers conducted a hearing and then filed
an initial order concluding that the provider owned by the electric utility was not receiving a cross-
subsidy in violation of Tenn. Code Ann. § 7-52-402 (2005). After the initial order became final, the
private provider filed a Tenn. R. App. P. 12 petition for review with this court. We have concluded
that the provider’s uncompensated use of the electric utility’s name is not a cross-subsidy prohibited
by Tenn. Code Ann. § 7-52-402.

Tenn. R. App. P. 12 Petition for Review; Judgment of the Tennessee Regulatory Authority
Affirmed

WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which PATRICIA J.
COTTRELL and FRANK G. CLEMENT , JR., JJ., joined.

Henry M. Walker and Kristy R. Godsey, Nashville, Tennessee, for the appellant, US LEC of
Tennessee, Inc.

Carlos C. Smith and Mark W. Smith, Chattanooga, Tennessee, for the appellee, Electric Power
Board of Chattanooga.

J. Richard Collier, Carolyn E. Reed, and Randall Gilliam, Nashville, Tennessee, for the appellee,
Tennessee Regulatory Authority.
 OPINION

I.

The Electric Power Board of Chattanooga (EPB) was created by private act in 1935.1 It
provides electric power to both business and residential customers in the City of Chattanooga, most
of Hamilton County, and parts of eight other Tennessee counties and North Georgia. In October
1997, after the Tennessee General Assembly, following Congress’s lead, authorized municipal
electric utilities to begin offering telecommunications services,2 EPB applied to the Tennessee
Regulatory Authority (Authority) for a certificate of convenience and necessity to enable it to begin
providing telecommunications services through a telecommunications division that would be
separate from EPB’s electric utility system.

Because EPB’s application was the first of its kind in Tennessee, the Authority convened a
contested case proceeding to consider its application for a certificate of convenience and necessity.
Eight entities intervened in the proceeding, including the Consumer Advocate Division of the Office
of the Attorney General and Reporter, BellSouth Telecommunications, Inc., AT&T Communications
of the Southern States, Inc., and the Tennessee Cable Telecommunications Association (TCTA).
US LEC of Tennessee, Inc. (US LEC), a North Carolina telecommunications services provider doing
business in the Chattanooga market, did not intervene. From the outset, EPB made it clear that it
intended to operate its telecommunications division under its own name, and the intervenors likewise
made it clear that they were equally insistent that EPB’s electric utility system should not cross-
subsidize its telecommunications division.

The TCTA led the opposition to EPB’s application for a certificate of convenience and
necessity. One of TCTA’s experts recognized that, unlike other new entrants into the local
telecommunications services market, EPB had a “substantial amount of goodwill and name
recognition developed with those electric ratepayers.” To address TCTA’s concerns about the cross-
subsidization prohibited by Tenn. Code Ann. § 7-52-402, the TCTA and EPB negotiated and filed
with the Authority a detailed set of conditions on EPB’s certificate that were intended to ensure
compliance with Tenn. Code Ann. § 7-52-402.3

By their own terms, these conditions formed “the essential methods that EPB should adopt
to properly separate telecommunications from electric power accounting data, [to] provide assurance
that cross-subsidization does not occur, and to properly allocate cost.” The conditions recognized
that EPB would provide telecommunications services through a discrete telecommunications
services division, that the revenues and expenses of the telecommunications services division would

1
Act of Apr. 15, 1935, ch. 455, 1935 Tenn. Priv. Acts 1125.

2
Act of May 27, 1997, ch. 531, 1997 Tenn. Pub. Acts 963 (codified at Tenn. Code Ann. §§ 7-52-401, -407
(2005)).

3
The Authority had requested the TCTA and EPB to confer about the issues raised regarding EPB’s compliance
with Tenn. Code Ann. § 7-52-402.

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be segregated from those of the electric utility system, and that the two entities would acquire
services from each other at the rates charged other customers. They also provided a “general
allocator” for expenses that could not be directly allocated. With specific regard to joint marketing,
the conditions included a Code of Conduct providing that:

The electric system and the telecommunications division of
the Electric Power Board of Chattanooga may jointly offer their
respective products and services to customers provided that the
customer is informed (a) of the separate identities of each and (b) that
the products and services of the electric utility system are distinct and
separately priced from the offerings of the telephone division and the
customer may select one without the other.

On May 10, 1999, the Authority granted EPB a certificate of convenience and necessity, and “EPB
Telecom” began providing telecommunications services to local businesses in April 2000.

On May 15, 2002, US LEC filed a complaint with the Authority alleging that EPB was
engaging in discriminatory and anti-competitive business practices. It complained that EPB was
allowing EPB Telecom to use EPB’s name, that EPB was granting EPB Telecom access to buildings
that it was not granting to other telecommunications providers, and that EPB had failed to file its
annual audits with the Authority. BellSouth Telecommunications, Inc. intervened in the proceeding,
and in June 2002, the Authority referred the matter to a hearing officer for disposition. Three months
later, US LEC filed an amendment to its complaint containing a fourth allegation – that EPB
Telecom had refused to allow US LEC to interconnect with EPB Telecom’s network or to provide
certain unbundled services.

The hearing officer later concluded that US LEC did not have standing to take issue with
EPB Telecom’s failure to file its annual audits, and the parties informally resolved US LEC’s
building access and network interconnection and unbundled services claims. Thus, the only
remaining issue involved US LEC’s claim that EPB’s marketing and advertising activities violated
the anti-subsidization provisions in Tenn. Code Ann. § 7-52-402 or the Code of Conduct agreed
upon by EPB and the TCTA.

The hearing officer conducted hearings on February 25 and March 16, 2004. During these
hearings, US LEC presented evidence that EPB’s name was instantly recognizable and that it had
value because of the company’s reputation for quality and goodwill with its customers. It also
presented evidence purporting to demonstrate that EPB was intentionally blurring the lines between
its electric utility system and EPB Telecom. US LEC cited various sales tactics, joint marketing
activities, press releases, and the EPB website as evidence of the manner in which EPB had allowed
EPB Telecom to leverage EPB’s name and insisted that these activities violated the Code of Conduct
and Tenn. Code Ann. § 7-52-402. For its part, EPB insisted that its conduct was consistent with both
the Code of Conduct and Tenn. Code Ann. § 7-52-402.

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 In its post-hearing brief, US LEC insisted that joint marketing provisions in the Code of
Conduct should be clarified and strengthened. It argued that EPB Telecom should be required either
to pay EPB for the use of its name or to operate using a name that did not indicate a relationship with
EPB. Because of the difficulties in quantifying the benefit that EPB Telecom derives from its use
of the EPB name, US LEC argued that requiring EPB Telecom to change its name would be more
appropriate and that changing EPB Telecom’s name would not pose an undue hardship on EPB
Telecom because name changes are common in the telecommunications industry.

The hearing officer filed an initial order on May 6, 2004. Despite her conclusion that US
LEC lacked standing to challenge EPB’s advertising and marketing activities,4 the hearing officer
invoked the Authority’s general supervisory and regulatory power under Tenn. Code Ann. § 65-4-
104 (2004) as authority to address US LEC’s complaints about EPB’s and EPB Telecom’s conduct.
The hearing officer then concluded that EPB Telecom’s uncompensated use of the EPB name was
not a subsidy prohibited by Tenn. Code Ann. § 7-52-402 and that neither EPB nor EPB Telecom had
violated the Code of Conduct. US LEC did not request the Authority to review the initial order, and
so the initial order became the Authority’s final order by operation of law on May 21, 2004. US
LEC thereafter filed a Tenn. R. App. P. 12 petition for review on June 8, 2004.

II.
EPB’S ALLEGED VIOLATION OF TENN . CODE ANN . § 7-52-402

The outcome of this appeal hinges on the scope of Tenn. Code Ann. § 7-52-402’s prohibition
against a municipal electric system providing subsidies to its telecommunications services division.
US LEC insists that EPB Telecom’s uncompensated use of EPB’s name is a subsidy prohibited by
Tenn. Code Ann. § 7-52-402. The Authority and EPB respond that the subsidies prohibited by Tenn.
Code Ann. § 7-52-402 are confined to the use of revenues from the sale of electricity to pay for costs
of providing telecommunications services. These arguments require the court to focus first on the
meaning of the word “subsidies” as it is used in Tenn. Code Ann. § 7-52-402.

A.

The search of the meaning of statutory language is a judicial function. Roseman v. Roseman,
890 S.W.2d 27, 29 (Tenn. 1994); BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 672 (Tenn.
Ct. App. 1997). While the courts must carefully consider an administrative agency’s interpretation
of the statutes it is charged to enforce, State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529, 536
(Tenn. 2004); Exxon Corp. v. Metropolitan Gov’t, 72 S.W.3d 638, 641 (Tenn. 2002), issues
involving the construction of statutes involve questions of law. Sallee v. Barrett, 171 S.W.3d 822,
825 (Tenn. 2005); Memphis Publ’g Co. v. Cherokee Children and Family Servs., Inc., 87 S.W.3d
67, 74 (Tenn. 2002). Accordingly, the courts must make their own independent determination
regarding a statute’s meaning without presuming that the agency’s interpretation of the statute is

4
The hearing officer concluded that US LEC lacked standing because it had failed to present any evidence that
US LEC or any other telecommunications services provider had been adversely affected by EPB’s or EPB Telecom’s
conduct.

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correct. Bostic v. Dalton, 158 S.W.3d 347, 350 (Tenn. 2005); Patterson v. Tenn. Dep’t of Labor &
Workforce Dev., 60 S.W.3d 60, 62 (Tenn. 2001).

When the courts are called upon to construe a state statute, their primary responsibility is to
ascertain and give effect to the intent and purpose of the Tennessee General Assembly. Freeman
Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 522 (Tenn. 2005); Sullivan ex rel. Hightower
v. Edwards Oil Co., 141 S.W.3d 544, 547 (Tenn. 2004). The courts must avoid constructions that
unduly restrict or expand the statute’s application. Sallee v. Barrett, 171 S.W.3d at 828; Watt v.
Lumbermens Mut. Cas. Ins. Co., 62 S.W.3d 123, 127-28 (Tenn. 2001). The goal is to construe a
statute in a way that avoids conflict and facilitates the harmonious operation of the law. In re
C.K.G., 173 S.W.3d 714, 729 (Tenn. 2005); Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d
710, 716 (Tenn. 2002).

The search for a statute’s purpose must begin with the words of the statute itself. Calaway
ex rel. Calaway v. Schucker, ___ S.W.3d ___, ___, 2005 WL 3338655, at *5 (Tenn. 2006); Biscan
v. Brown, 160 S.W.3d 462, 470 (Tenn. 2005). The courts must construe statutes as they find them.
Jackson v. Jackson, 186 Tenn. 337, 342, 210 S.W.2d 332, 334 (1948); Pac. Eastern Corp. v. Gulf
Life Holding Co., 902 S.W.2d 946, 954 (Tenn. Ct. App. 1995). The courts must also presume that
the General Assembly chose its words purposefully and deliberately, Eastman Chem. Co. v. Johnson,
151 S.W.3d 503, 507 (Tenn. 2004); Merrimack Mut. Fire Ins. Co. v. Batts, 59 S.W.3d 142, 151
(Tenn. Ct. App. 2001), and that the words chosen by the General Assembly convey the meaning that
the General Assembly intended them to convey. Biscan v. Brown, 160 S.W.3d at 473; Jones v.
Garrett, 92 S.W.3d 835, 839 (Tenn. 2002).

The courts must construe a statute’s words using their natural and ordinary meaning unless
the context in which the words are used requires otherwise. Tenn. Waste Movers, Inc. v. Loudon,
160 S.W.3d 517, 519 (Tenn. 2005); Frazier v. East Tennessee Baptist Hosp., Inc., 55 S.W.3d 925,
928 (Tenn. 2001). Because words are known by the company they keep, In re Audrey S., 182
S.W.3d 838, 870 (Tenn. Ct. App. 2005), the courts should construe statutory language in the context
of the entire statute and it light of the statute’s general purpose. Honsa v. Tombigbee Transp. Corp.,
141 S.W.3d 540, 542 (Tenn. 2004); Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). When the
meaning of statutory language is clear, the courts must interpret the statute as written, Kradel v.
Piper Indus., Inc., 60 S.W.3d 744, 749 (Tenn. 2001), rather than using the rules of construction to
give the statute another meaning. Wausau Ins. Co. v. Dorsett, 172 S.W.3d 538, 543 (Tenn. 2005);
Poper ex rel. Poper v. Rollins, 90 S.W.3d 682, 684 (Tenn. 2002); Limbaugh v. Coffee Med. Ctr., 59
S.W.3d 73, 83 (Tenn. 2001).

Statutes, however, are not always free from ambiguity. When the courts encounter
ambiguous statutory language – language that can reasonably have more than one meaning5 – they
must look to the entire statute, the statutory scheme of which the statute is a part, and elsewhere to
ascertain the General Assembly’s intent and purpose. Sallee v. Barrett, 171 S.W.3d at 828; Eastman

5
LeTellier v. LeTellier, 40 S.W .3d 490, 498 (Tenn. 2001); Bryant v. HCA Health Servs. of N. Tenn., Inc., 15
S.W .3d 804, 809 (Tenn. 2000).

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Chem. Co. v. Johnson, 151 S.W.3d at 507; Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826
(Tenn. 2003). The courts frequently find interpretive guidance in a statute’s legislative history. State
ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d at 535; Galloway v. Liberty Mut. Ins. Co., 137 S.W.3d
568, 570 (Tenn. 2004). The courts must, however, be cautious when they consult a statute’s
legislative history. BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d at 673. A statute’s meaning
must be grounded in its text. Thus, comments made during the General Assembly’s debates cannot
justify a construction of a statute that has no reference points in the text of the statute itself. D.
Canale & Co. v. Celauro, 765 S.W.2d 736, 738 (Tenn. 1989); Townes v. Sunbeam Oster Co., 50
S.W.3d 446, 453 n.6 (Tenn. Ct. App. 2001). When a statute’s text and the comments made by
legislators during the debates on the statute diverge, the text controls. BellSouth Telecomms., Inc.
v. Greer, 972 S.W.2d at 674.

B.

Our task in this case is not limited to picking the most appropriate dictionary definition of
the word “subsidies.” Rather, it is to ascertain the General Assembly’s purpose for enacting Tenn.
Code Ann. § 7-52-402. While consulting a dictionary may be a helpful place to identify the possible
meanings of a word or phrase, it is only the beginning of the search for legislative intent, not the end.
Statutes should not be construed as if they are simply a series of Webster’s definitions strung
together. See LIEF H. CARTER & THOMAS F. BURKE, REASON IN LAW (6th ed. 2002). Once the
possible meanings of a word or phrase have been identified, the courts should then narrow the
possibilities by considering the context in which the word or phrase is used, the underlying facts, the
legislative history, and prior decisions. REED DICKERSON , THE INTERPRETATION AND APPLICATION
OF STATUTES 103 & n.2, 105 (1975); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has
Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227,
296 (1999).

In its most general sense, the word “subsidy” refers to “a grant or gift of money or other
property made by way of financial aid.”6 It is also commonly understood as a “grant usually made
by the government, to any enterprise whose promotion is considered to be in the public interest.”7
In the context of regulated industries, a “subsidy” is a payment by the government or other entity to
a producer in order to induce the producer to provide services otherwise thought to be unprofitable.
Gerald R. Faulhaber, Cross-Subsidy Analysis With More Than Two Services, 1 J. Competition L. &
Econ. 441, 442 (2005) (“Faulhaber”).

With regard to the regulated services, a subsidy involves an external flow of cash from an
outside source. Faulhaber, 1 J. Competition L. & Econ., at 442. The internal flow of cash from one
division of an enterprise to another is referred to as a “cross-subsidy.” Faulhaber, 1 J. Competition
L. & Econ., at 442. A cross-subsidy occurs when an enterprise uses the revenues from the sale of
one service to offset its cost to produce and sell another service. See Alliant Energy Corp. v. Bie,

6
W EBSTER ’S T H IRD N EW I N TERN ATIO N AL D ICTION ARY 2279 (1971).

7
B LACK ’S L AW D ICTION ARY 1469 (8th ed. 2004); see also XVII T H E O XFO RD E N GLISH D ICTIO N ARY 60 (1989).

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330 F.3d 904, 917 (7th Cir. 2003); see also In re Implementation of the Telecommunications Act of
1996: Accounting Safeguards Under the Telecommunications Act of 1996, 11 F.C.C.R. 17539,
17542 n.4 (1996).

Cross-subsidies are not commonplace in unregulated markets. They are not profit
maximizing, and thus enterprises providing unregulated services have little incentive to cross-
subsidize.8 However, incentives to cross-subsidize arise when an enterprise provides services in both
regulated and unregulated markets. In that circumstance, the enterprise may seek to lower the price
of the service in the unregulated market by allocating a portion of its costs of providing the service
to its costs of providing the regulated service. GTE Midwest, Inc. v. F.C.C., 233 F.3d 341, 344 n.1
(6th Cir. 2000) (defining cross-subsidization as “the misattribution of costs incurred in providing
unregulated services to the provision of regulated services”); California v. F.C.C., 39 F.3d 919, 926
(9th Cir. 1994); Ameritech Corp. v. United States, 867 F. Supp. 721, 726 (N.D. Ill. 1994); Florida
Cable Television Ass’n v. Deason, 635 So. 2d 14, 15 n.2 (Fla. 1994).

The use of revenues from the sale of services in a regulated market to subsidize the cost of
providing the services in the unregulated market is a cross-subsidy. The practice is anti-competitive
and produces two negative effects. First, it results in the enterprise’s customers in the regulated
market being overcharged for their services because they are paying the cost of the subsidy of the
unregulated service. Second, the enterprise engaging in cross-subsidization gains an unfair
competitive advantage in the unregulated market because the cross-subsidy enables the enterprise
to provide the unregulated service below its actual cost. In re Complaint of MCTA, 615 N.W.2d 255,
266 (Mich. Ct. App. 2000).

The legislators’ discussions both in committee and during floor debate regarding Tenn. Code
Ann. § 7-52-402 reveal that cross-subsidization was their chief concern with regard to permitting
municipal electric utilities to begin providing local telecommunications services in competition with
privately owned providers. The bill’s supporters emphasized that competition in the local
telecommunications market was important and that electric utilities providing telecommunications
services would not be permitted to use “rate dollars” to subsidize their telecommunications business.
Accordingly, we have concluded that the purpose of Tenn. Code Ann. § 7-52-402 is to prevent
municipal electric utilities who decide to provide telecommunications services from shifting the
costs of providing telecommunications services to their electricity customers.

8
As Professor Faulhaber explains:

Under competitive conditions, the issue of cross-subsidy simply does not arise. Firms with
constant returns to scale technology compete in markets so that price is driven to marginal cost which
covers total cost. Every product pays its own way; if it did not, there would be profitable opportunities
for entry and repricing. Customers of any product or service who faced prices that forced them to pay
too much . . . would soon find competitors willing to offer equivalent service at lower prices. The
competitive market would police cross-subsidy, without need of a regulator.

Faulhaber, 1 J. Competition L. & Econ., at 442.

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 This record contains no evidence to support a conclusion that the uncompensated use of
EPB’s name is a subsidy prohibited by Tenn. Code Ann. § 7-52-402. EPB established its reputation
long before EPB Telecom began providing telecommunications services. When EPB Telecom began
operating, it was required to establish its own identity in the local telecommunications services
market, and the record contains no evidence that EPB’s electricity customers have paid for any of
these promotional costs. To the contrary, the record contains substantial and material evidence
supporting the hearing officer’s conclusion that EPB Telecom has used its own revenues to pay these
costs. Accordingly, we concur with the hearing officer’s conclusion that US LEC failed to prove that
EPB Telecom’s use of EPB’s name violates Tenn. Code Ann. § 7-52-402.

III.
EPB’S ALLEGED VIOLATION OF THE CODE OF CONDUCT

US LEC also insists that EPB’s and EPB Telecom’s joint marketing activities go beyond the
scope of activities permitted by the Code of Conduct that was part of EPB’s 1999 certificate of
convenience and necessity. It also asserts that the Code of Conduct did not go far enough in
protecting EPB Telecom’s competitors against marketing practices that would give EPB Telecom
an unfair advantage in the telecommunications services marketplace. We find no basis for these
claims.

When EPB applied for a certificate of convenience and necessity to provide
telecommunications services, its future competitors were well aware of the dangers of cross-
subsidization. Accordingly, the Authority directed EPB and the other providers of
telecommunications services in the Chattanooga market to negotiate a set of conditions that would
ensure compliance with Tenn. Code Ann. § 7-52-402. These conditions contained specific
accounting requirements that would enable the Authority and EPB’s competitors to track EPB
Telecom’s revenues and costs, as well as specific requirements for the relationship between EPB and
EPB Telecom. They permitted joint marketing of regulated and unregulated services as along as
EPB and EPB Telecom maintained their separate identities and refrained from bundling their
services.

US LEC presented a substantial amount of evidence regarding the joint marketing activities
of EPB and EPB Telecom. This evidence included sales brochures, press releases, the EPB website,
and a booth at a Chattanooga business fair. All this evidence reveals that EPB and EPB Telecom
continue to maintain their separate identities and are refraining from bundling their services. There
is likewise no evidence that EPB Telecom has not paid its share of the costs of these activities or that
EPB’s electricity customers are paying for any of the costs that are properly attributable to EPB
Telecom. Thus, we agree with the hearing officer’s conclusion that US LEC failed to prove that EPB
has violated the conditions of its certificate of convenience and necessity designed to prevent cross-
subsidization.

As a final matter, US LEC insists that the conditions on EPB’s certificate of convenience and
necessity do not go far enough to protect EPB Telecom’s competitors from unfair or anti-competitive
practices. It argues that the only feasible way to protect competition in the Chattanooga

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telecommunications services market is to require EPB Telecom to discontinue using EPB’s name.
We have determined that the hearing officer correctly concluded that this proposed remedy was far
more drastic than the attenuated competitive impact of EPB Telecom’s use of EPB’s name may have
on the telecommunications services market in Chattanooga.

EPB was the only entity permitted to apply for the certificate of convenience and necessity
under Tenn. Code Ann. § 7-52-401. From the outset, it was clear that EPB intended to provide
telecommunications services through a separate but wholly-owned division. The Authority granted
the certificate of convenience and necessity to provide telecommunications services to EPB. Thus,
EPB’s decision to name its telecommunications division “EPB Telecom” is entirely truthful and
reflects the reality that EPB Telecom is part of EPB. US LEC failed to produce any evidence that
the use of the name “EPB Telecom” has had any measurable anti-competitive effect in the
marketplace for telecommunications services in the Chattanooga area. Without this evidence, and
because of the potential adverse effect of depriving consumers of truthful information regarding EPB
Telecom’s affiliation,9 we conclude that the record lacks any factual basis that would have required
the Authority to order EPB Telecom to discontinue the use of EPB’s name.

IV.

We affirm the Authority’s order concluding that EPB Telecom’s uncompensated use of
EPB’s name does not violate Tenn. Code Ann. § 7-52-402 and denying all of US LEC’s requests for
relief. The case is remanded to the Tennessee Regulatory Authority for whatever further proceedings
may be required, and the costs of this appeal are taxed to US LEC of Tennessee, Inc. for which
execution, if necessary, may issue.

______________________________
WILLIAM C. KOCH, JR., P.J., M.S.

9
EPB introduced two articles concluding that name and logo restrictions such as the one suggested by US LEC
in this case could harm consumers by depriving them of truthful information regarding with whom they are dealing.
Charles J. Ogletree, Jr., et al., Utility Affiliates: Why Restrict Use of Names and Logos?, Pub. Util. Fort., July 15, 1999,
at 34; Kenneth Gordon & Charles Augustine, Fostering Efficient Competition in the Retail Electric Industry: How Can
Regulators Help Solve Vertical Market Power Concerns? First, Do No Harm 20-23 (Edison Elec. Inst. Aug. 1998).

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