Opinion
No. 84-96
Decided December 5, 1984.
Public utilities — Alleged inadequate telephone service — Findings of inadequate service supported, when.
APPEAL from the Public Utilities Commission of Ohio.
On June 5, 1981, intervening appellee, Douglas D. Snyder, d.b.a. Snyder Wholesale Tire Company ("complainant"), filed a complaint with appellee, the Public Utilities Commission of Ohio ("commission"), against appellant, the Ohio Bell Telephone Company ("Ohio Bell"), alleging inadequate telephone service. Complainant is a business subscriber of Ohio Bell located in Wintersville, Ohio. He alleged in his complaint that from 1978 to the date of filing the complaint, he had experienced problems with the telephone service at his business facilities, including problems with dialing out, lines stuck-on, cut-offs, and noises on the line which interfered with communications. It was also alleged that Ohio Bell unnecessarily delayed in building complainant's new equipment room, failed to investigate and resolve billing discrepancies, and failed to timely list complainant's WATS lines in its toll-free directory.
A total of nine days of hearings were conducted. Complainant's witnesses were mainly his employees and telephone customers who testified as to the service deficiencies they encountered. Also admitted into evidence were Ohio Bell's trouble reports relative to complainant's phones. Ohio Bell employees testified as to service provided to complainant. No expert testimony was offered by complainant as to the source or nature of the problems.
Ohio Bell offered evidence of tests, most performed after the commencement of this proceeding, showing that its equipment was functioning properly. Ohio Bell did not advise complainant to expand or alter his equipment until February 1981.
The commission issued its opinion and order on September 28, 1983. It concluded that there was sufficient evidence of problems involving cut-offs, transmission quality, lines stuck-on and inability to call out to support a claim of inadequate service. The commission found the delay in building the equipment room to be unreasonable but not a violation of any regulation. The commission also determined that the delay in conducting an inventory relative to billing discrepancies was unreasonable and amounted to a violation of Ohio Adm. Code 4901:1-5-06. It found that the delay in listing complainant's WATS lines was not unreasonable.
The commission did not agree that the tests conducted by Ohio Bell demonstrated that the service inadequacies were not the fault of Ohio Bell. Rather, the commission found that if Ohio Bell's equipment was functioning and complainant still had these problems, he should have been advised sooner to modify his equipment or take other action necessary to alleviate the problems.
The commission ordered Ohio Bell to contact the complainant to determine if he was still experiencing problems. If not, a report to that effect was to be filed with the commission and the matter closed. If problems still existed, they were to be investigated and remedied. Deadlines were fixed for the time in which these actions were to be taken and reports to the commission were required to be filed.
Ohio Bell's application for rehearing was denied and the cause is now before the court upon an appeal as of right.
Mr. Donald W. Morrison and Mr. Charles S. Rawlings, for appellant.
Mr. Anthony J. Celebrezze, Jr., attorney general, Mr. Robert S. Tongren and Ms. Amy S. Katzman, for appellee.
Messrs. Smith Schnacke, Mr. David Wm. T. Carroll, Freifield, Bruzzese, Wehr Moreland Co., L.P.A., and Mr. Joseph J. Bruzzese, Jr., for intervening appellee.
Ohio Bell argues essentially that the commission's findings of inadequate service are not supported by the record.
Ohio Bell argues correctly that the burden is upon the complainant to establish inadequate service in a proceeding under R.C. 4905.26. See, e.g., Grossman v. Pub. Util. Comm. (1966), 5 Ohio St.2d 189, 190 [34 O.O.2d 347]. Specifically, Ohio Bell contends that the complainant's burden of proof cannot be met unless it is established by expert testimony that Ohio Bell's equipment or facilities were functioning improperly. There is no support for this contention. "Inadequate service" is not defined in R.C. Title 49, that determination being left to the commission and dependent upon the facts of each case. Moreover, the commission is not bound by strict rules of evidence in its proceedings. Greater Cleveland Welfare Rights Org., Inc. v. Pub. Util. Comm. (1982), 2 Ohio St.3d 62, 68. Here, it was uncontested that the complainant experienced continued service problems over a period of several years. The inadequacies were reported and service calls were made but the problems were not remedied. Moreover, complainant was never advised that the design or extent of his equipment or the way in which it was used by his employees could be contributing to his service problems until February 1981. Upon a review of all of the facts and circumstances in this case there appears to be sufficient evidence in the record upon which the commission could conclude that Ohio Bell provided inadequate service.
It is well-settled that "[u]nder the `unlawful or unreasonable' standard specified in R.C. 4903.13, this court will not reverse or modify an opinion and order of the Public Utilities Commission where the record contains sufficient probative evidence to show that the commission's determination is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty." Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 103, 104 [12 O.O.3d 112]. See, also, Consumers' Counsel v. Pub. Util. Comm. (1979), 58 Ohio St.2d 108, 110 [12 O.O.3d 115]; Ohio Utilities Co. v. Pub. Util. Comm. (1979), 58 Ohio St.2d 153, 164 [12 O.O.3d 167]; Duff v. Pub. Util. Comm. (1978), 56 Ohio St.2d 367, 370 [10 O.O.3d 493]; General Motors Corp. v. Pub. Util. Comm. (1976), 47 Ohio St.2d 58 [1 O.O.3d 35], paragraph two of the syllabus; Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403 [71 O.O.2d 393], paragraph eight of the syllabus; Dayton Power Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St.3d 91, 94.
The order of the commission, being neither unreasonable nor unlawful, is hereby affirmed.
Order affirmed.
CELEBREZZE, C.J., FORD, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.
FORD, J., of the Eleventh Appellate District, sitting for W. BROWN, J.