Opinion
No. 71-402
Decided March 1, 1972.
Public Utilities Commission — Denial of application for mobile radio-telephone service — Findings and order of commission not disturbed, when — No showing proposed service proper and necessary.
An order of the Public Utilities Commission denying an application for authority to furnish domestic public land mobile radio service is neither unreasonable nor unlawful, where the commission finds that there is an adequate, existing, similar service, which finding is supported by evidence of record, whereas the evidence fails to show that the proposed service is proper and necessary for the public convenience.
APPEAL from the Public Utilities Commission.
On March 26, 1969, the Medical-Dental Bureau, Inc., of Youngstown, Ohio, filed a verified application before the Public Utilities Commission for authority to furnish domestic public land mobile radio service in the Youngstown, Ohio, area and to establish rules, regulations and rates governing the furnishing thereof. Applicant requested that the commission:
"1. Grant it a certificate to provide the service it proposes to furnish in the Youngstown, Ohio area;
"2. Find that, upon the granting of said certificate and the furnishing of such proposed service, it will be a public utility and a telephone company as defined by Sections 4905.02 and 4905.03 of the Revised Code; and
"3. Permit the filing of said proposed tariff * * * to become effective on * * * [a certain date] subsequent to the date of filing with * * * [the] commission."
A hearing was had before an attorney-examiner for the Public Utilities Commission on April 21, 1970, at Youngstown, Ohio, in accordance with the provisions of R.C. 4905.241.
The application was opposed by Anserphone, Inc., "holder of Certificate of Public Convenience and Necessity No. 9, authorizing similar service in the Youngstown, Ohio area."
Evidence introduced at the hearing demonstrated that the applicant is a corporation owned by its Board of Directors who must be practicing physicians or dentists; that applicant holds the necessary authority from the Federal Communications Commission; that it owns the necessary equipment for furnishing mobile radio-telephone service; and that it has sufficient financial resources to be able to provide such service. There was further evidence offered by applicant from members to the effect that they do not presently subscribe to the services of Anserphone and they would continue to forego using any facilities if the application was denied. These members also testified that, if the Medical-Dental Bureau, Inc., application was granted, they would subscribe to that service.
Anserphone, Inc., as protestant, presented evidence that it is presently providing mobile land radio-telephone service in the Youngstown and Warren, Ohio, areas. Its evidence also established that the protestant is operating at less than full capacity and that it has available the necessary equipment to provide service to all of the public witnesses testifying at the hearing.
The attorney-examiner recommended to the commission that the application of Medical-Dental Bureau, Inc., be denied. Thereafter, on February 19, 1971, an opinion and order of the Public Utilities Commission was rendered denying the application. Application for rehearing was denied on April 15, 1971. The cause is before this court upon an appeal as of right under R.C. 4903.13.
Messrs. Dunbar, Kienzle Murphey, Mr. Frank C. Dunbar, III, and Mr. Kenton L. Kuehnle, for appellant.
Mr. William J. Brown, attorney general, and Mr. John J. Gill, for appellee.
Messrs. George, Greek, King, Mcmahon McConnaughey and Mr. A. Charles Tell, for Anserphone, Inc.
The sole issue in the controversy between Medical-Dental Bureau, Inc., and the Public Utilities Commission is whether the order of the commission denying Medical-Dental Bureau's application was unlawful or unreasonable. If it was, then, under R.C. 4903.13, the order shall be reversed, vacated or modified.
Appellant suggests in its brief and argument that the commission denied the certificate on the basis of failure by appellant to show inadequacy in the service being currently provided to the area by Anserphone, Inc. Such ground, appellant contends, would be unreasonable and unlawful. However, the commission stated in its opinion that "* * * since substantially all of the public witnesses testified that they would forego using mobile radio telephone service if the application of Medical-Dental Bureau, Inc. was denied, the commission is of the opinion that the evidence fails to show the granting of the requested authority is proper and necessary for the public convenience."
The commission made seven findings of fact, including the following:
"(3) The protestant, Anserphone, Inc. holds authority from this commission to provide a similar service in the Youngstown, Ohio area.
"(4) The proposed service area of the applicant and that of the protestant overlap as to dbu contour of each station and the protestant is able to provide service to the entire area for which the public witnesses testified as to need.
"(5) The protestant has sufficient facilities and equipment to provide mobile radio telephone service to members of the public in the Youngstown, Ohio area and those facilities are being only partially utilized at the present time.
"(6) The mobile radio telephone service of the protestant is adequate to meet the needs and desires of the public in the Youngstown, Ohio area and no necessity exists for additional service.
"(7) The evidence fails to show that a public convenience and necessity exists for the services as proposed by the applicant."
The argument is advanced by appellant that the standard of "public convenience and necessity," as used in finding of fact No. 7 above, is improper; that such standard is applicable in connection with the issuance of certificates by the commission to motor transportation companies under the provisions of R.C. 4921.10 and is inapplicable to telephone companies. Appellant urges that the proper standard to be applied to telephone companies is the "proper and necessary for public convenience" standard set forth in R.C. 4905.24; that, by applying the wrong standard, an improper burden of proof was imposed upon the applicant.
However, the commission, in its conclusions of law, held as follows:
"(1) The application is properly before the commission and the commission has jurisdiction to hear and determine the issues involved herein.
"(2) The mobile radio telephone service of Anserphone, Inc., in the Youngstown, Ohio area is adequate to meet the demands of the public.
"(3) The granting of the authority sought by the within application is neither proper nor necessary for the public in the Youngstown, Ohio area.
"(4) The granting of the within application would be contrary to the public interest."
Conclusion No. 3 indicates that the proper test was applied. Moreover, a careful reading and consideration of the docket entries of the commission, the transcript of the proceedings, the exhibits before the commission and the opinion and order of the commission leads clearly to the conclusion that the order denying the application of appellant was lawful and reasonable.
Applying the rule expressed in Railway Express Agency v. Pub. Util. Comm. (1962), 173 Ohio St. 69, 74, that "* * * an order of the commission will not be reversed unless it is manifestly against the weight of the evidence or that there is no evidence to sustain it; and that, if, upon examination, an order of the commission does not appear to be unreasonable or unlawful, it will not be disturbed," we affirm the order of the commission.
Order affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, STERN and LEACH, JJ., concur.
BROWN, J., not participating.