Opinion
No. 68-407
Decided May 14, 1969.
Public utility — Application to issue stock pursuant to reorganization and merger plan — Application not within purview of Section 4905.40 or Section 4905.49, Revised Code — Declination of Public Utilities Commission to exercise jurisdiction.
APPEAL from the Public Utilities Commission.
On October 23, 1967, an application by the Northern Ohio Telephone Company for approval to issue common stock pursuant to a plan of reorganization and merger agreement, whereby Northern Ohio Telephone Company would become a wholly owned subsidiary of General Telephone Electronics Corporation, was filed with the Public Utilities Commission of Ohio. The second paragraph of the application states that:
"* * * Northern Ohio Telephone Company, is a public utility * * * and as such, is subject to the jurisdiction of this commission and specifically for purposes of this application the requirements of Section 4905.40 of the Revised Code of Ohio." (Emphasis added.)
The commission made findings and entered an order approving the application the following day. However, on December 20, 1967, an application was filed by the International Telephone Telegraph Corporation asking (1) that the commission's October 24th order of approval be vacated and (2) that a public hearing be held on the matter. On January 5, 1968, the commission stayed the October 24, 1967, order of approval pending a hearing on the application submitted by International Telephone Telegraph Corporation. After a prehearing conference, but without a full hearing on the intervening application of International Telephone Telegraph Corporation, the commission entered an order on March 13, 1968, vacating the order of October 24, 1967, on the ground that the application originally filed by Northern Ohio Telephone Company did not come within the purview of Section 4905.40, Revised Code, and therefore the commission was without jurisdiction to consider it.
An application for rehearing, filed with the commission on March 29, 1968, was denied on April 29, 1968, and notice of appeal was filed with this court by International Telephone Telegraph Corporation on June 25, 1968.
Messrs. Vorys, Sater, Seymour Pease, Mr. Russell P. Herrold, Jr., and Mr. J.D. Jordan, for appellant.
Mr. Paul W. Brown, attorney general, and Mr. J. Phillip Redick, for appellee Public Utilities Commission of Ohio.
Messrs. Power, Griffith, Jones Bell, Mr. John Robert Jones, Mr. Sidney D. Griffith, Mr. James F. Bell, Messrs. Squire, Sanders Dempsey, Mr. John Lansdale and Mr. Alan P. Buchmann, for appellee Northern Ohio Telephone Company.
Our determination in this case is limited to the question as to whether the Public Utilities Commission could properly decline to exercise jurisdiction over the application filed by Northern Ohio Telephone Company on October 23, 1967, on the ground that it was not the type of application appropriate under Section 4905.40, Revised Code.
An examination of Section 4905.40, Revised Code, discloses that it is a statute which requires prior approval by the commission of all proposed issues of stock and most proposed issues of debt securities by a public utility where the purpose of the issuance is to finance capital improvements, to reorganize the capital structure, to refund certain obligations incurred or to acquire the stock of another public utility. A perusal of the application filed by Northern Ohio on October 23, 1967, reveals that it would accomplish none of these purposes. Instead the application asks for commission approval of an agreement between a telephone company (Northern Ohio) and a public utility holding company (General Telephone Electronics Corporation) whereby the telephone company would become a wholly owned subsidiary of the public utilities holding company. We agree with the commission that the contents of the application take it outside the purview of Section 4905.40, Revised Code.
The application of October 23, 1967, filed by Northern Ohio Telephone Company is titled "In the matter of the Application of NORTHERN OHIO TELEPHONE COMPANY for approval to issue common stock pursuant to a Plan of Reorganization and Merger Agreement to merge New Northern Ohio Telephone Company into Northern Ohio Telephone Company."
New Northern Ohio Telephone Company is not a telephone company in fact, nor a public utility company subject to the jurisdiction of the commission. It is a dummy corporation set up by General Telephone Electronics Corporation, the entire assets of which consist of a number of shares of General Telephone Electronics Corporation stock equal to the number of issued and outstanding shares of Northern Ohio Telephone Company. Once Northern Ohio Telephone Company merged with New Northern Ohio Telephone Company, the shares of General Telephone Electronics Corporation held by New Northern Ohio Telephone Company would be distributed to the existing shareholders of Northern Ohio Telephone Company, with the ultimate effect of making Northern Ohio Telephone Company a wholly owned subsidiary of General Telephone Electronics Corporation.
General Telephone Electronics Corporation is a holding company incorporated in New York. It controls various telephone operating companies and some manufacturing companies in several locations throughout the United States.
Appellant argues, however, that the contents of the application bring it within the purview of Section 4905.49, Revised Code, and that the commission should have considered the application as filed pursuant to that statute.
Section 4905.49, Revised Code, outlines the procedure for obtaining commission approval of a merger between any two or more telephone companies upon joint application by those companies. The application actually filed October 23, 1967, by Northern Ohio Telephone Company is patently different from the type indicated in Section 4905.49.
Thus the application filed by Northern Ohio Telephone Company on October 23, 1967, does not fit into either the statutory framework of Section 4905.40, Revised Code, pursuant to which it was filed, or of Section 4905.49, Revised Code, under which appellant argues it should have been filed.
It has already been determined by this court that the commission does not have the power to make a company file an application it does not wish to file. Sylvania Home Telephone Co. v. Pub. Util. Comm., 97 Ohio St. 202. It seems logical to hold, as we do today, that a company cannot require the commission to consider an application which patently fails to meet with statutory conditions.
Accordingly, we affirm the decision of the commission.
Decision affirmed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and DUNCAN, JJ., concur.
TAFT, C.J., concurs in the judgment.