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IN RE APPLICATION NO. C-4981

Cite as 27 Neb. App. 773

In re Application No. C-4981 

of Beau Toben.

Windstream Communications, Inc., appellant, 

v. Nebraska Public Service Commission 

et al., appellees.

___ N.W.2d ___

Filed November 19, 2019. No. A-19-054.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/19/2019 08:08 AM CST
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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. Affirmed.

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 Windstream would provide reasonable advanced telecommunications service within a reasonable 
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time pursuant to Neb. Rev. Stat. § 86-136(1) (Reissue 2014). 

We affirm.

BACKGROUND

On April 18, 2018, Toben, pro se, filed an application with 

the PSC, alleging he resided within Windstream’s Hansen 

Exchange, but he wished to receive advanced telecommunications service from Hamilton’s Doniphan Exchange. The 

PSC notified Windstream and Hamilton of Toben’s application. Hamilton consented to Toben’s request to be served 

by its Doniphan Exchange at no direct cost for construction 

and installation; Windstream objected because it had plans to 

deploy broadband service and “serve [Toben] within a reasonable period of time.” A hearing took place before the PSC in 

November 2018. Toben appeared pro se, Windstream appeared 

with counsel, and a representative appeared on behalf of the 

PSC. Hamilton did not appear. A summary of the evidence 

from the hearing follows.

Toben testified that he did not have any service from 

Windstream (or any other local exchange carrier) for a new 

house he was building a few miles west of Doniphan. There 

were neither any Windstream lines buried there, nor “land 

service.” He offered photographs of Windstream’s equipment 

(presumably on his property) showing “line boxes” for their 

telephone service that “had been in disrepair for the last 

years [and] nobody has ever serviced [them].” He cited the 

“lack of maintenance or advancements to the services in [his] 

area” as one reason for his application. Toben hoped to move 

into his house by the end of 2018, but indicated installation 

of broadband service may interfere with finishing the yard 

and “dirt work” if “things” would have to be buried under 

his house. At the time of the hearing, Toben said, “[W]here 

I live I have Hamilton,” and he had internet service through 

Hamilton. According to Toben, Hamilton “buried fiber optics 

to the area” in 2016, which was why he applied for the boundary change to his new home. He testified, “We are building a 
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new house where there is currently not any service,” which he 

clarified meant no service from anyone, including Hamilton. 

Toben had contacted Hamilton, and “they [were] willing to 

provide [him] with Internet service,” but Toben acknowledged 

such service was not currently available through Hamilton. 

Toben said Hamilton was willing to provide him with internet 

service and that it could offer speeds of “Ten Mbps.” Toben 

was “hoping to be moved in [to the new house] by the end 

of the year [2018].” When asked where he was currently living, he indicated he was at his parents’ address “while we are 

building our house.”

Regarding his communications with Windstream, Toben 

said he was told that he would not be able to receive “land 

service,” only (fixed) wireless service; Windstream explained 

in an email to Toben that “fixed wireless” is a system to provide “high speed internet” by way of a “point to multi-point 

wireless technology that uses radio frequencies.” Toben had 

not had any experience with fixed wireless service, but was 

willing to give it a “chance.” However, he did not receive 

service “in the time that was promised.” Windstream had 

indicated in a July 13, 2018, email to Toben that it expected 

to complete its project to provide fixed wireless service to 

Toben’s area in “the first few weeks of September 2018.” On 

July 20, Windstream sent an email about servicing Toben’s 

new house with “the fixed wireless solution” and was “hopeful” to avoid a hearing if possible. On July 26, Toben emailed 

the PSC asking to postpone a hearing scheduled in August so 

he could “see if the fixed wireless system that Windstream 

has planned will be sufficient.” In September, Toben contacted Windstream and was told someone would “get back to 

[him] within a couple of days.” After he did not hear from 

Windstream, Toben rescheduled the hearing.

Brad Hedrick, Windstream’s president of operations for 

Nebraska and four other states, testified that Windstream 

wanted to expand its broadband services across rural serv

ice areas. He explained that Windstream’s fixed wireless 
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technology was a “much improved version over what other 

providers ha[d] deployed in these areas in the past.” 

Windstream’s fixed wireless system had not been deployed 

anywhere in Nebraska yet.

Windstream intended to serve Toben with fixed wireless 

service. Hedrick stated that Toben’s new house address was 

within Windstream’s Hansen Exchange, but Windstream had 

yet to complete two towers in the “Doniphan-Hansen area” 

that would allow Toben to receive service. Once completed, 

those towers would provide a service range extending out 

in a radius of about 4 or 5 miles and would allow a “75 to 

100 Mbps download.” Although Toben had concerns about 

Windstream’s radius because his house “falls on the furthest 

boundary” of the Hansen Exchange, Hedrick testified that “RF 

engineering experts” said that Toben would receive “at least 

75 Mbps.”

Hedrick explained why service had been delayed beyond the 

initial September timeframe provided to Toben. Hedrick identified two “governmental delays,” one of which was related to 

a rules change by the Federal Communications Commission, 

but that issue had since been resolved. The outstanding issue, 

which Windstream was notified of about 2 weeks before the 

PSC hearing, concerned a zoning dispute with Adams County 

regarding Windstream’s permit application to place poles, or 

towers, throughout that county. The dispute was about the 

“location of the site” and whether it was within the “zone or 

cone of influence of the Hastings Airport.” If so, there were 

alternatives, such as changing the location of the pole or adding “lighting” to the site. According to Hedrick, Windstream 

was “hopeful” to resolve that issue “soon” and to “deploy 

service by the end of the year” but that was “not a guarantee.” 

He admitted it was “in the realm of possibility” that the issue 

could end up in the court system on appeal.

Once the zoning issue was “sorted out,” Windstream 

could begin building and equipping tower sites. Hedrick 

indicated that Windstream intended to complete other tower 
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sites (in addition to those in the “Doniphan-Hansen area”) 

with fixed wireless service in the “Sutton exchange [and] the 

Juniata exchange”; “it would be beneficial to [Windstream] 

if [it] could do them all at the same time.” He thought 

Harvard, Nebraska, would be the first area to deploy (not the 

“Doniphan-Hansen area”) as it was “approved” the same day 

as the PSC hearing. Windstream had not yet advertised broadband to Doniphan customers “because it would have been 

premature since [it did not] have any capability to provide 

service yet” and the “unknown issue [it was] dealing with in 

Adams County.”

On December 18, 2018, the PSC issued its order. It noted 

that Hamilton and Windstream are local exchange carriers 

holding certificates of public convenience and necessity to 

provide local exchange service in their respective territories. 

The PSC found that Toben was not receiving, and would not 

receive within a reasonable time, advanced telecommunications capability service from Windstream. The PSC further 

found that the revision of the exchange service area was economically sound and would not impair the capabilities of the 

telecommunications companies affected by the change to serve 

their subscribers. It acknowledged Toben’s willingness to pay 

construction and other costs related to the boundary change 

but found that Hamilton was willing to pay those costs. The 

PSC concluded that the requirements of § 86-136 were met. 

Therefore, it granted Toben’s application and ordered that the 

exchange boundaries of Hamilton’s Doniphan Exchange and 

Windstream’s Hansen Exchange be revised (as detailed in 

maps attached to the order) in such a way as to allow Toben to 

receive advanced telecommunications capability service from 

Hamilton’s Doniphan Exchange.

Windstream appeals.

ASSIGNMENT OF ERROR

Windstream claims the PSC erred by determining Toben 

would not receive reasonable advanced telecommunications 
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capability service within a reasonable time absent a change of 

Windstream’s Hansen Exchange boundary.

STANDARD OF REVIEW

[1-3] Under Neb. Rev. Stat. § 75-136(2) (Reissue 2018), 

an appellate court reviews an order of the PSC de novo on 

the record. In re Application No. B-1829, 293 Neb. 485, 880 

N.W.2d 51 (2016). 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. Id. 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. In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 

653 (2019). 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. See id.

[4] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court. See In 

re Application of City of Minden, 282 Neb. 926, 811 N.W.2d 

659 (2011).

ANALYSIS

The Nebraska Telecommunications Regulation Act is codified at Neb. Rev. Stat. §§ 86-101 through 86-165 (Reissue 

2014 & Cum. Supp. 2018). It was passed to fulfill several 

policies, including to maintain and advance the efficiency and 

availability of telecommunications services. See § 86-102. As 

relevant here, § 86-135(1) states, “Any person may file an 

application with the [PSC] to obtain advanced telecommunications capability service furnished by a telecommunications 

company in the local exchange area adjacent to the local 

exchange area in which the applicant resides.” “Advanced 

telecommunications capability service means high-speed, 

broadband telecommunications capability provided by a local 
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exchange carrier that enables users to originate and receive 

high-quality voice, data, graphics, and video communications 

using any technology.” § 86-103.01. A “[l]ocal exchange 

area” is a “territorial unit established by a telecommunications company for the administration of telecommunications 

service within a specific area generally encompassing a city 

or village and its environs as described in maps filed with and 

approved by the [PSC].” § 86-115. There must be a hearing 

before the PSC if all of the “directly affected” telecommunications companies involved do not consent to an application. 

§ 86-135(2).

Section 86-136 provides that upon the completion of the 

hearing on an application made pursuant to § 86-135 (if a hearing is required), the PSC may grant the application, in whole or 

in part, if the evidence establishes each of the following:

(1) That such applicant is not receiving, and will not 

within a reasonable time receive, reasonable advanced 

telecommunications capability service from the telecommunications company which furnishes telecommunications service in the local exchange area in which the 

applicant resides;

(2) That the revision of the exchange service area 

required to grant the application is economically sound, 

will not impair the capability of any telecommunications 

company affected to serve the remaining subscribers in 

any affected exchanges, and will not impose an undue and 

unreasonable technological or engineering burden on any 

affected telecommunications company; and

(3) That the applicant is willing and, unless waived 

by the affected telecommunications company, will pay 

such construction and other costs and rates as are fair and 

equitable and will reimburse the affected telecommunications company for any undepreciated investment in existing property as determined by the [PSC]. The amount of 

any payment by the applicant for construction and other 

costs associated with providing service to the applicant 
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may be negotiated between the applicant and the affected 

telecommunications company.

On appeal, Windstream takes issue only with whether 

§ 86-136(1) set forth above was satisfied—specifically, whether 

advanced telecommunications capability service would be available to Toben within a reasonable time. Windstream claims it 

would have been able to provide such service to Toben within 

a reasonable time.

Although not raised by the parties, nor addressed by the 

PSC in its order, we initially observe that at the time Toben 

completed his application in April 2018 and at the time of 

the PSC hearing in November, Toben was residing at his parents’ home within Hamilton’s Doniphan Exchange. He was 

not yet residing at the home being built within Windstream’s 

Hansen Exchange. Section 86-135(1) permits a person to file 

an application with the PSC to seek service from a telecommunications company in the local exchange area adjacent 

to the local exchange area in which the applicant resides. 

Therefore, in order for the PSC to have concluded as it did, it 

would necessarily have had to interpret the words “the local 

exchange area in which the applicant resides” to include property an applicant presently owns and on which the applicant 

does not presently reside, but has demonstrated an intent to 

reside on such property in the future. At the PSC hearing, 

questions were asked about Toben’s current residence. Toben 

acknowledged he was still living in Doniphan, in the Hamilton 

exchange, but anticipated moving to his new residence in the 

Windstream exchange at the end of 2018. He testified that he 

was currently receiving internet service through Hamilton, but 

that “nobody” provided internet service to the location where 

he was building his new house. It is evident that at the time 

of his application and at the time of the PSC hearing, Toben 

was still residing in Hamilton’s Doniphan Exchange. There is 

also no dispute that when Toben begins residing in the house 

being built a few miles west of Doniphan, he will then be 

residing in Windstream’s Hansen Exchange; Hedrick agreed 
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that “[Toben’s] new address for the house they are building 

is within the [Windstream] Hansen exchange.” Therefore, the 

PSC necessarily interpreted the words “the local exchange 

area in which the applicant resides” to include property an 

applicant presently owns and on which the applicant does not 

presently reside, but has demonstrated an intent to reside on 

such property in the future. At the hearing before the PSC, 

Windstream did not take issue with the fact that Toben did 

not yet reside on the property in its Hansen Exchange—nor 

is that issue raised on appeal. Accordingly, it is not necessary 

for this court to address whether this particular statutory language was properly applied; rather, we address only whether 

the PSC correctly found that Toben was not receiving, and 

would not receive within a reasonable time, advanced telecommunications capability service from Windstream for his 

property within Windstream’s Hansen Exchange as set forth 

in § 86-136(1).

We first observe that the Legislature recently amended 

§ 86-136(1) as follows (new language underscored; former 

language struck through):

(1) That such applicant is not receiving, and at the 

time of the application is not able to receive, will not 

within a reasonable time receive, reasonable advanced 

telecommunications capability service from the telecommunications company which furnishes telecommunications service in the local exchange area in which the 

applicant resides.

2019 Neb. Laws, L.B. 268, § 1 (effective September 1, 2019).

Thus, the issue of what might constitute a reasonable time 

for a local exchange to make advanced telecommunications 

capability service available to an applicant residing in its 

exchange is possibly an issue of last impression. As of its 

September 1, 2019, effective date, the amended § 86-136(1) 

places the focus on when the application to change exchange 

boundaries is filed rather than whether service can be made 

available within a reasonable time.
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As pertinent here, Windstream argues it could fulfill the 

reasonable time requirement because of plans to provide serv

ice by the end of 2018. It asserts that despite unexpected 

delays, it demonstrated “good faith efforts to provide Toben 

with internet service quickly” and had “executable designs and 

plans to build the required service towers.” Brief for appellant 

at 8. But the PSC argues that the record shows “Windstream 

failed to meet its own promised time frame to provide serv

ice.” Brief for appellee at 8.

[5] Neither party directs us to a prior appellate case that 

has had to interpret the meaning of “within a reasonable time” 

under § 86-136(1) (Reissue 2014), and we find none. We 

are thus faced with a case of first, and possibly last, impression, although Windstream’s brief does indicate there may 

be other cases of a similar nature pending on appeal: “In re 

Application of Skrdlant, No. A18-877, and In re Application of 

Poppe, No. A18-878.” See brief for appellant at 1. 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. AT&T 

Communications v. Nebraska Public Serv. Comm., 283 Neb. 

204, 811 N.W.2d 666 (2012). While we agree with Windstream 

that the statutory language “‘within a reasonable time’” is 

“forward-looking,” reply brief for appellant at 2, it is nevertheless open to interpretation. On the face of § 86-136(1) 

alone, there is no plain and ordinary meaning to define the 

parameters of “within a reasonable time.” And the phrase is 

not defined in any relevant definition section in the Nebraska 

Telecommunications Regulation Act. See § 86-103 (definitions 

found in §§ 86-103.01 to 86-121).

[6-9] 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. 

See Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 

N.W.2d 678 (2019). When construing a statute, an appellate 
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court must look to the statute’s purpose and give to the statute 

a reasonable construction which best achieves that purpose, 

rather than a construction which would defeat it. TracFone 

Wireless v. Nebraska Pub. Serv. Comm., 279 Neb. 426, 778 

N.W.2d 452 (2010). 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. Id. And 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. Id.

Section 86-136(1) was originally located at Neb. Rev. Stat. 

§ 75-613(1) (Cum. Supp. 1969). In 1969, the Legislature established a process under Neb. Rev. Stat. §§ 75-612 to 75-615 

(Cum. Supp. 1969) for applicants who were not receiving 

and would not “within a reasonable time” receive reasonably 

adequate exchange telephone service from the company furnishing such service in the exchange service area in which 

the applicants resided or operated. See § 75-613(1). See, 

also, 1969 Neb. Laws, ch. 601, § 2, p. 2457. There is nothing 

enlightening in the corresponding legislative history about the 

Legislature’s decision to use “within a reasonable time” as part 

of the standard for § 75-613(1). Even if there were, the facts 

at hand involve the question of how long is too long to wait to 

obtain broadband service, not merely telephone service—the 

subject technology in 1969.

The version of § 86-136(1) at issue here was established 

in 2012, pursuant to 2012 Neb. Laws, L.B. 715. Before that 

amendment, the PSC could order a boundary change based only 

on the “quality of the voice-grade [(landline telephone)] serv

ice the customer [was] receiving.” See Introducer’s Statement 

of Intent, L.B. 715, Transportation and Telecommunications 

Committee, 102d Leg., 2d Sess. (Feb. 13, 2012). The 2012 

amendment updated boundary change provisions so that an 

application for a change is based on “broadband service.” 

Id. See, also, L.B. 715, § 3 (advanced telecommunications 

capability service definition added); id., §§ 4 to 7 (term 
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added elsewhere to reflect application was for broadband serv

ice). The phrase “within a reasonable time” in § 86-136(1) 

remained unchanged. L.B. 715, § 5. Clearly, the Legislature’s 

amendments were meant to account for technological advancements, and it did not find it necessary (at least at that time) 

to amend the language at issue here. Compare L.B. 715, with 

2019 Neb. Laws, L.B. 268, § 1 (replacing “within a reasonable 

time receive” in § 86-136(1) with “at the time of the application is not able to receive”).

At a preliminary hearing on L.B. 715, counsel for the 

Transportation and Telecommunications Committee said:

The state has experienced situations where a customer on 

one side of a boundary line receives high-speed broadband with one provider, while the provider on the other 

side of the boundary line does not offer broadband to 

another customer. Although these two customers live in 

close proximity to each other, the one with inadequate 

service is being held hostage by the outdated statute from 

receiving broadband from the one provider on the other 

side of the boundary line.

Transportation and Telecommunications Committee Hearing, 

L.B. 715, 102d Leg., 2d Sess. 2 (Feb. 13, 2012). Counsel 

asserted, “In a large geographic state with a sparse population, 

broadband has become a necessity to Nebraska.” Id. During 

floor debate, the chairperson of the committee reiterated that 

exact statement. See Floor Debate, L.B. 715, 102d Leg., 2d 

Sess. 17 (Mar. 21, 2012). The chairperson also pointed out, 

“Broadband is the service customers want, and in many rural 

areas it is not available.” Id.

While the legislative materials for L.B. 715 do not provide 

insight about the phrase “within a reasonable time” under 

§ 86-136(1), the phrase remaining intact shows that, at least 

at that time, the Legislature preferred to leave the matter 

to the PSC’s discretion to analyze on a case-by-case basis. 

See, also, In re Application No. OP-0003, 303 Neb. 872, 932 

N.W.2d 653 (2019) (even under de novo standard of review, 
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it is appropriate to adhere to common practice among appellate courts to afford appropriate deference to findings of 

agency before which record was created). In its order in the 

present case, the PSC stated, “given the utility and necessity 

of access to broadband internet in today’s world, even short 

delays may present significant inconveniences and challenges 

to Nebraska residents.” The PSC related that the length of 

time it would consider to be reasonable within the context 

of §§ 86-135 to 86-138 was “relatively short” and “certainly 

shorter than the nearly eight months [Toben’s] docket [had] 

been pending.”

We agree with the PSC’s determination that the timeframe 

at issue here did not meet the requirement of “within a reasonable time.” Windstream was on notice of Toben’s application in April 2018. In July, Toben asked for a continuance of 

the August hearing because Windstream represented that it 

expected to complete the project in Toben’s area in September. 

Windstream failed to meet that deadline, and at the time of 

the hearing in November, the timeline was no more apparent 

due to unexpected zoning delays involving Adams County. 

Although Hedrick estimated the project would be completed 

by the end of the year, he acknowledged that was “not a 

guarantee.” Windstream’s zoning dispute was a relatively new 

delay; how fast it could be resolved (and whether resolution 

would impact the project) was vague. There was also evidence 

the Harvard project would take priority over the DoniphanHansen project, although it was not clear if or how that might 

delay the estimated goal to have service available to Toben at 

the end of 2018.

Windstream argues there was no evidence about the “quality 

of Hamilton’s service or timeframe for its deployment.” Brief 

for appellant at 7. However, the pertinent statutory language 

does not require such evidence. Section 86-136(1) relates to 

whether an applicant is receiving or will receive within a 

reasonable time broadband service “from the telecommunications company which furnishes telecommunications service 
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in the local exchange area in which the applicant resides”; it 

unambiguously refers solely to the applicant’s current telecommunications company, the one whose territory covers the 

area where the applicant resides. See AT&T Communications 

v. Nebraska Public Serv. Comm., 283 Neb. 204, 811 N.W.2d 

666 (2012) (language of statute is to be given its plain and 

ordinary meaning). The record supports that the requirements 

of § 86-136(1) were met, although as noted previously, we 

do not address whether the “local exchange area in which the 

applicant resides” includes property upon which an applicant 

presently owns and on which the applicant does not presently 

reside, but has demonstrated an intent to reside on such property in the future. Also, we need not address whether the other 

two elements of § 86-136 were satisfied, because Windstream 

does not dispute the PSC’s conclusions under § 86-136(2) or 

§ 86-136(3).

Finally, Windstream argues that it was not necessary to 

modify Windstream’s Hansen Exchange so that Hamilton 

could provide Toben service. Although Windstream did not 

specifically assign this as an error, it did generally assign 

error to the PSC’s determination that Toben would not receive 

reasonable advanced telecommunications capability service 

within a reasonable time “absent a change of Windstream’s 

Hansen Exchange boundary.” The PSC disagrees there was 

any error on this basis, arguing, “Whether Hamilton could or 

could not provide service without a boundary change is irrelevant, as a change in exchange area boundaries is required by 

the statute when the PSC finds the evidence warrants granting 

the application.” Brief for appellee at 11. Although we do not 

agree that the statute requires the PSC to make a boundary 

change, see § 86-136 (“the commission may grant the application . . . if the evidence establishes the following”), we agree 

with the PSC that whether Hamilton could have provided 

service to Toben without a boundary change is not relevant 

to the PSC’s decision. Section 86-136 does not contain language that would preclude a boundary change simply because 
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an adjacent local exchange could provide service without a 

boundary change. While there are other factors for the PSC to 

consider besides whether service can be made available within 

a reasonable time, see § 86-136(2) (requires consideration of 

whether revision of exchange service area is economically 

sound) and § 86-136(3) (requires consideration of costs of 

construction and rates), as noted previously, Windstream has 

not challenged the PSC’s order as to either of those statutory factors.

CONCLUSION

Under our de novo review, we affirm the December 18, 

2018, order of the PSC granting Toben’s application to modify 

his exchange service area from Windstream’s Hansen Exchange 

to Hamilton’s Doniphan Exchange.

Affirmed.