Opinion
No. 63263.
April 19, 1979. Rehearing Denied May 21, 1979.
APPEAL FROM 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE EUGENE W. McGEHEE, J.
Marshall B. Brinkley, L. P. S.C. Baton Rouge, John M. Madison, Jr., Wiener, Weiss, Madison Howell, Shreveport, for defendants-appellants.
Carlos G. Spaht, Kantrow, Spaht, Weaver Walter, Baton Rouge, for plaintiff-appellee.
In this 1977 proceeding before the Public Service Commission the applicant Radio Communication Consultants, Inc., (Radio) seek a certificate of public convenience and necessity as a radio common carrier under the provisions of Sections 1500-04 of Title 45 of the Revised Statutes. The application seeks authority to serve in the Shreveport and Natchitoches, Louisiana, area. The application was protested by Southern Message Service, Inc. (Southern), who claim it has held a certificate of public convenience and necessity as a radio common carrier issued by the Commission since prior to 1968 to serve the same area.
After a hearing held on May 26, 1977 the Commission issued its order dated July 21, 1977 granting to Radio a radio common carrier certificate in the Shreveport and Natchitoches area. In that order the Commission found that applicant's witnesses testified that service from protestant Southern had not been completely adequate and that complaints had been registered with that company. According to the Commission's order, one witness further testified that he had to invest in his own system because service from Southern and South Central Bell Telephone Company had not been adequate. In the Commission's opinion "the public convenience [and] necessity" required issuance of the certificate.
An application for rehearing by Southern was denied by the Commission. Southern then appealed to the Nineteenth Judicial District Court pursuant to the authority of Section 21(E) of Article IV of the Constitution and Sections 1192-95 of Title 45 of the Revised Statutes. In its petition for appeal in the District Court Southern sought and was granted a preliminary injunction restraining and prohibiting the carrying out the Commission's order pending proceedings on appeal and until a judicial determination was made of the legality of the Commission's order.
While the validity of the Commission's order was under consideration by the trial judge Southern moved that Radio show cause why it should not be adjudged in contempt of court for filing for and actively pursuing an application with the Federal Communications Commission for authority to begin operations as a radio common carrier. This action by Radio was alleged to be in direct contempt of the preliminary injunction issued by the District Court.
With the proceedings in this posture the District Court rendered judgment on the merits of the controversy in favor of Southern, annulling, voiding and setting aside the Commission's order. The trial judge was of the opinion that the testimony of Radio's witnesses "fell short of showing that plaintiff's [Southern's] service was inadequate, much less that it has failed, refused or neglected to provide reasonably adequate service after notice." Furthermore, the trial judge was of the opinion that the Commission erroneously applied a test applicable to other common carriers, a test inapplicable to radio common carriers. Radio and the Commission then appealed devolutively to this Court.
Radio contends on appeal that Southern does not hold a certificate of public convenience and necessity for Natchitoches and is not authorized to serve that city. Radio also contends here that the Commission's order is supported by evidence and should not have been annulled in the District Court.
Section 1500 of Title 45 of the Revised Statutes invest the Louisiana Public Service Commission with power to regulate radio common carriers. Section 1502 of that Title imposes the duty on the commissioners to prescribe appropriate rules and regulations. The statute mandates that the Commission make such orders as are necessary to insure that radio common carrier rates, services, rules and regulations are reasonable, just, adequate and not unduly preferential.
Commission certificates must be issued on a finding that the operation is required by the public convenience and necessity before any mobile radio system can be begun, continued, constructed or operated. Generally, no carrier is required to secure a certificate for extension within a municipality or territory when operations are already commenced. Id. 1503 A.
Operators of radio common carriers already certificated on July 31, 1968 received a certificate of convenience and necessity from the Commission to continue if they applied therefore within thirty days of July 31, 1968. Southern's is such a certificate.
Section 1503 C, which is particularly pertinent to the issues presented here, provides:
"The Commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service."
I.
Radio's first contention on appeal is that Southern does not hold a certificate of public convenience and necessity for Natchitoches and is not authorized to serve that city. The contention is not well-founded.
Southern's certificate reads:
"A certificate of public convenience and necessity is hereby granted Southern Message Service, Inc., a Radio Common Carrier Company under the laws of Louisiana, whose office or place of business is Shreveport, Louisiana, to provide domestic land mobile radio service between a land station and mobile units within the service area of the central land radio telephone stations (s) at: (1) 627 Crockett St., Shreveport, La., (2) Approx. 3.2 miles S.E. of Pleasant Hill, La., (3) Dixie Street, Minden, La., (4) 115 West Broad St., Lake Charles, La., (5) 416 Grammon Street, Monroe, La.
Natchitoches is roughly seven miles southeast of Pleasant Hill and is therefore less than 4 miles from the service area of the radio-telephone station situated approximately 3.2 miles southeast of Pleasant Hill. This makes Natchitoches well within the service area of Southern's Pleasant Hill station.
The fact that Natchitoches is not named in the certificate does not mean that the city is not within the service area of Southern's transmitter near Pleasant Hill. One of the principal stockholders of Southern and the company president testified that a Natchitoches customer could telephone another customer in that city without making a long-distance call through Shreveport if he requested that service. No base station is situated in Natchitoches, but a control station is in operation there and Southern offers its service in and around the city.
II.
A hearing examiner was appointed by the Commission to hear this case in Alexandria, some distance from the Commission's domicile in Baton Rouge. At the outset of the hearing Southern's attorney objected that Southern had not been given proper notice. The entire proceeding was initiated by a brief letter from Radio's attorney to the Commission, the pertinent portion of which stated:
"Application is hereby made on behalf of our client for a certificate of public convenience and necessity as a radio common carrier, as that term is defined in La.R.S. 45 § 4500 [1500], et seq., authorizing our client to operate as a radio common carrier within the municipalities of Shreveport and Natchitoches.
"Please accept this application and notify us of the date set for hearing. We will provide the names and addresses of witnesses to testify on behalf of the applicant sufficiently in advance of the hearing."
Radio's application, Southern argues, has no allegations that the service is inadequate, or of Southern's failure to properly serve the public, it only asks for a certificate to operate in Southern's territory. Nevertheless, the hearing proceeded.
Southern's brief here also points out that the Commission failed to adhere to its "Rules of Practice and Procedure". Rule 13(D) sets forth the requirements of all pleadings before the Commission:
1) The name of the party seeking to bring about or prevent action by the Commission or other parties.
2) The names of all other parties in interest.
3) A concise statement of the ultimate facts relied upon by the pleader.
4) A prayer stating the type of relief, action or order desired by the pleader.
5) A list of the witnesses who may be called in the event of an oral hearing, and the anticipated time of presentation of the case.
6) Any other matter required by statute or rule.
7) A certificate of service, where service is required by Rule 7(c).
Southern contends that the failure of an administrative agency to adhere to the rules and regulations governing its proceedings is a violation of the constitutional guarantee of due process.
Although the application in this case does not comply with the Commission's rule in every detail, not even by a correct reference to the statutory authority under which the certificate is sought, the record does supply compliance with some of the deficiencies. A list of interested parties was mailed by the Commission to Southern and others, and the Commission staff did keep the parties informed of the time and place of the hearing. Radio's letter application also fulfills some of the requirements. Despite the technical failure to observe the rules in some respects there is no felt necessity to meet the due process issue here. The proceeding did develop into a full hearing, after adequate notice, at which both parties presented evidence and had an opportunity to confront the witnesses against them. Southern was well prepared and did protest the application to the full extent. Moreover, Southern has not particularized how it was prejudiced in the premises, nor is prejudice claimed on account of the Commission's disregard of its rules.
III.
One of the principal questions before the court is whether Radio has satisfied the requirements of Section 1503 C of the statute which prohibits the Commission from granting a certificate on an application if it will be "in competition with or duplication of any other radio common carrier.
Section 1503 C imposes strict prohibitions against commission certification of applicants where there will be competition or duplication as in the case at bar. Not only does the record establish that competition and duplication will occur, but there is a pervasive tone in Radio's presentation of its case that it is their intention to serve as Southern's competitor. To this observation can be added the fact that in the past Ark-La-Tex Mobile Radio Service was once a competitor of Southern in the Shreveport territory, at least until 1971. Because of the limited demand for this duplication of service Ark-La-Tex met financial reverses and its business was acquired by Southern. South Central Bell also owns and operates a radio common carrier system in Shreveport and environs. Other large users, such as the Doctor's Exchange and IBM, have their own systems. These are not common carriers, but their existence definitely limits customers available to the common carriers.
In addition to the obvious legislative intent to avoid unnecessary competition and duplication of facilities in this area of regulated communications, two additional prerequisites to certification are set forth in Section 1503 C. The Commission must first determine that "the existing service is inadequate to meet the reasonable needs of the public." Should such a determination be made, the Commission must also find that "the person operating the same [existing facility] is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service." Communications Ind., Inc. v. Louisiana Public Service Commission, 260 La. 1, 254 So.2d 613 (1971); Billie White d/b/a Telephone Answering Bureau v. Louisiana Public Service Commission, 259 La. 363, 250 So.2d 368 (1971).
Neither of these requirements were found to be met by the trial judge and we discern no support in this record for a finding that Southern's service is "inadequate to meet the reasonable needs of the public." A statute requiring such a determination amounts to a limitation upon the Commission's concept of public convenience and necessity in that, when the service is "adequate to meet the reasonable needs of the public", public convenience and necessity is satisfied.
Southern has been operating in the Shreveport and Natchitoches area since prior to 1968. In the year preceding the hearing in 1977 it had received no written complaints regarding its service. Although acknowledging verbal complaints in a limited number, the character of the complaints were such that they could not be considered serious or numerous enough to support a determination that its service was "inadequate to meet the reasonable needs of the public." To the contrary, a description of its service was impressive.
Witnesses who testified in support of Radio's application cited instances of service they considered faulty two or three years prior to the hearing. One such complaint involved problems with a rented radiophone. After several efforts to have the unit repaired by Southern, the witness turned it in and was given a full refund. Later, however, he again sought Southern's service and was dissatisfied because they required a $500 deposit before another unit would be installed for him. In essence his complaint arose out of the malfunctioning of a unit not manufactured by Southern and one which Southern made efforts to adjust to the customer's satisfaction.
Over an objection to hearsay the wife of a man self-employed in the oil field diamond-coring business testified that her husband called Southern in 1975 for a mobile telephone. Southern had no units in stock and offered to order one. Because he was on the bottom of the waiting list he abandoned the request.
In 1974 or 1975 another witness had his wife order a radiophone from Southern to install in his truck. When a unit was not readily available he obtained one from South Central Bell. Because their channels were overloaded and delays were involved in completing calls, he discontinued the Bell service. He never used Southern's service.
A Consulting Petroleum Engineer operating in Shreveport, East Texas, South Arkansas, North Louisiana, South Louisiana, South Texas and Oklahoma applied for mobile radio service with Southern in 1974. His need for a multichannel set could not be met at that time so he bought one from Motorola for $1,675. The unit performed satisfactorily in all locations except Shreveport until a Motorola Engineer made an adjustment which made the unit work "good ever since." His associates left the Bell system and subscribed to Southern's service because Southern's service included advantages not offered by Bell. When a subscriber was called over Southern's system and no answer was received Southern would ascertain who the calling party was and make that information available to the subscriber later, a service which the witness said was really good. He objected, however, to the fact that he was charged 20 cents for each such call. He also said he could use a portable radiophone, one not necessarily installed in an automobile, and he would have preferred to rent the unit he bought from Motorola instead of buying. The witness concluded that he was then a subscriber to Southern's service and "couldn't do without them really." He also described the service of Southern's operators as "superb".
Southern Research Company in Shreveport has 300 employees. Its Executive Vice-President testified their business required mobile phone or pager type service. It was currently using Southern's paging service. Prior to and during 1975 they had problems getting coverage with the pagers in the Shreveport Metropolitan area. For this reason the company acquired its own radio system. However, Southern's service is still used for pagers. The vice-president said his company could use the voice-tone pager proposed to be furnished by Radio. A radio communications carrier in Natchitoches would be advantageous to his company, he explained. Otherwise this witness was not acquainted with whether the strength of Southern's stations had been increased since 1975, nor did he know whether Southern has since provided a voice-tone pager service.
Southern's President testified. He is a resident of Dallas, Texas. The company is owned in equal shares by him and Betty Cannon of Monroe, Louisiana. He said that the company served the Shreveport-Natchitoches area with the same service proposed by Radio, plus additional service which Radio does not propose to offer. His company also offers the voice-tone, "walkie talkie" equipment upon request, the demand being minimal for this service. This witness made a detailed recitation of Southern's service to support its position that Radio would offer no service Southern was not then offering, explaining recent improvements and expansions of its service. No increase in rates has been requested by Southern since 1973, and no request for an increase was anticipated. By efficient operation and maintaining a low cost level, and by employing efforts to minimize operational costs Southern has been able to make a "modest profit". If Radio were to become certificated and would get half of Southern customers Southern would be in trouble, he said, and would have to ask for a rate increase because of the reduced income. Southern was opposing Radio's application in order that its investment could be protected to serve the customers adequately.
By other testimony and evidence Southern established that its service was good and adequate to meet all requests in the area it served. Customers in the service area attested to the Southern's good and adequate service.
When two radio common carriers are in direct competition there is a duplication of material and personnel. The high ratio of expense to income limits the amount of capital available to a business for growth and improved service to customers. This condition is compounded in the present case by the presence of South Central Bell and the significant limitation of available customers on account of private mobile radio facilities. Evidence of the result of over duplication of service is apparent in this case. Ark-La-Tex and Southern could not both operate profitably in the same area. After sustaining losses Ark-La-Tex was obliged to sell its business.
It is a basic tenet of public utility regulation that there be no wasteful duplication of facilities. To carry out this concept General Orders of the Commission are designed to prohibit uneconomic and wasteful practices. Such a standard, and the reasons for requiring certificates of convenience and necessity, is to prevent the unnecessary duplication of facilities and to protect the consuming public from inadequate service and higher rates. Public convenience and necessity therefore require that there be no wasteful duplication and that the need be such that duplication will not result in waste. Kentucky Utilities Co. v. Public Service Commission, 252 S.W.2d 885 (Ky. 1952); City of Vanceburg v. Plummer, 275 Ky. 713, 122 S.W.2d 772 (1938). On these principles the Commission should refuse to permit a utility to invade territory occupied by another utility furnishing adequate service at reasonable rates.
Radio has presented no evidence that Southern is unable or refuses or neglects to provide reasonable adequate service.
This record satisfies the Court that Radio has not sustained the burden of proof required by Section 1503 C of Title 45 of the Revised Statutes.
For the reasons assigned the judgment of the District Court is affirmed.
TATE, J., dissents and assigns written reasons.
CALOGERO, J., dissents.
DENNIS, J., dissents for the reasons assigned.
We respectfully dissent.
In our view, the majority has erroneously substituted a judicial re-evaluation of the evidence for the findings made by the Louisiana Public Service Commission within the authority granted to it (not to the courts) by our state constitution to regulate the issuance of common carrier certificates.
The Commission order found that the opponent Southern's service under its existing certificate had not been adequate to meet the needs of the public. On the basis of this finding, it therefore issued a certificate to the applicant Radio so as to authorize what in effect will be a competing service.
The essential issue before us for review is whether this determination by the Commission is so unsupported by the evidence as to constitute an arbitrary and clearly erroneous finding, which thus resulted in an abuse of the Commission's authority by the issuance of a competing certificate to Radio, the applicant.
The Commission found that the service provided by Southern under its existing certificate, by which it enjoys a virtual monopoly over radio common carrier service in Northeast Louisiana, was insufficiently responsive to the public need. As will be shown below, the evidence before the Commission can be construed to support this finding. Nevertheless, a majority of this court substitutes its view that there is insufficient evidence for us to find inadequate service furnished by the existing monopoly — despite the Commission's considered view that competition was necessary to provide the public adequate service in radio common carrier services, in view of the delays in furnishing service, shortages of equipment, and inability or refusal by the existing certificate-holder to offer innovative services.
A more detailed examination of the issues and of the evidence will illustrate why, in the opinion of the dissenting justices, the majority of this court has invaded the constitutional authority of the Commission. The majority has done so, by judicially denying a certificate issued to the applicant Radio by the Commission in order, by competitive services, to provide the adequate service needed by the public but not provided by Southern under its existing monopoly.
I.
The applicant Radio filed an application to the Commission to obtain a certificate of public convenience and necessity as a radio common carrier under the provisions of La.R.S. 45:1500-1504. This statute provides that the Commission shall not grant a certificate to authorize a competing or duplicating operation unless it first determines, after hearing on reasonable notice, (a) that the existing service is inadequate to meet the reasonable needs of the public and (b) that the existing operator is unable to provide reasonable adequate service or refuses or neglects to do so. La.R.S. 45:1503 C as interpreted by us in Communications Industries, Inc. v. Louisiana Public Service Comm'n, 260 La. 1, 254 So.2d 613 (1971).
La.R.S. 45:1503 C provides in full: "The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service."
Radio applied for a certificate as a radio common carrier under the cited statute. It sought authority to provide services within the municipalities of Shreveport and Natchitoches and environs.
A hearing was held after notice to Southern, the opponent. Southern cross-examined the applicant's witnesses and introduced testimony in opposition to the application.
Southern complains that the pleadings by which Radio applied for its certificate did not meet the technical requirements of the Commission's rules and thus did not give adequate notice of the factual basis of its contention that Southern's prior service was inadequate. Despite such technical deficiencies in pleading, the proceeding did develop into a full hearing, after adequate notice, at which both parties had full opportunity to confront the witnesses against them and to produce witnesses on their own behalf. Although at the commencement of the Commission hearing Southern made a formal objection to the pleading deficiency, it did not request a continuance. In fact, it presented a well prepared case in opposition to the application. Under the circumstances, in the absence of any shown or claimed prejudice, we are unable to find that the Commission's relaxed application to its pleading rules is an abuse of its discretion in the administration of its hearings.
In its order granting Radio a certificate as radio common carrier under La.R.S. 45:1500 — 1504, the Commission recited that witnesses had testified that the service of the opponent Southern "had not been completely adequate and that complaints had been registered with the Company." It further cited the instance of a witness who had been forced to install his own system because of the inadequacy of existing services. The Commission thereupon found that the public convenience and necessity required the issuance of an additional certificate for the Shreveport-Natchitoches area.
Southern attacks the Commission's order on two principal substantive bases. It contends: (A) That the commission failed to require the applicant to meet the burden statutorily required by La.R.S. 45:1503 C before issuing a certificate authorizing a competing service (see II below of opinion); and (B) That the Commission's finding is unsupported by the evidence and is therefore arbitrary and capricious (see III below).
II.
Aside from questioning the factual bases of the Commission's determination, Southern emphasizes that, even if the Commission properly found that existing services by Southern were inadequate, its order did not (at least expressly) find also, as required by La.R.S. 45:1503 C (set footnote 1 above) that the existing operators were unable to or had refused to provide reasonably adequate service. See Communications Industries, Inc. v. Louisiana Public Service Comm'n, 260 La. 1, 254 So.2d 613 (1971).
Although inartistically drafted, the Commission's order in our opinion indicates its acceptance of testimony before it that, despite customer complaints of inadequacy, Southern had been unable to, and was presently unable to, meet the demands of public convenience and necessity. Following such finding, the Commission's order recites the Commission's opinion that "the public convenience necessity requires the issuance of an additional radio common carrier certificate for the Shreveport-Natchitoches area" — which we take to mean a Commission finding that, in order to meet the public need, it was required to issue the additional certificate to provide additional or alternative service needed by the Shreveport-Natchitoches area.
We therefore do not find merit to Southern's complaint that the Commission did not apply the correct statutory standard in granting the additional radio common carrier certificate to Radio. We are re-enforced in this view, in that Southern expressly sought rehearing before the Commission on this basis, and the Commission denied such rehearing, after reconsideration, again reciting that Radio was issued its certificate under the provisions of La.R.S. 45:1500 — 1504.
III.
Southern further contends that totally unsupported by the evidence are the Commission's requisite findings (a) that the service to the Shreveport-Natchitoches area presently furnished by Southern under its existing certificate is inadequate and (b) that Southern is unable to or had refused or neglected to provide reasonably adequate service.
The trial court concluded that the testimony of the applicant's witnesses (naming Goslin, Taylor, Collier and Scoggins) showed neither inadequacy of Southern's services nor that it had failed, refused, or neglected to provide adequate service. In so doing, in our opinion the trial court erred by not applying the standard of judicial review to such Commission determinations enunciated by us in Communications Industries, Inc. v. Louisiana Public Service Comm'n, 260 La. 1, 254 So.2d 613, 616 (1971):
"Radio-telephone communications is a technical service entrusted to the jurisdiction of the Louisiana Public Service Commission. Under well-accepted standards of judicial review, the Commission's ruling will be set aside only if the ruling is arbitrary, capricious or abusive of power."
Construed (as required) most favorably to the Commission's determination, the evidence upon which the Commission relied shows:
See, e. g., Louisiana Power Light Co. v. Louisiana Public Service Comm'n, 358 So.2d 623 (La. 1978) and B M Trucking, Inc. v. Comm'n, 353 So.2d 1323 (La. 1977).
The witness Goslin, a realtor, testified: About thirty days before the hearing, he had called Southern to request two-way walkie-talkie radio service. The manager informed him that such service was not available at this particular time, and that he did not know when the units would be available. When he requested installation of a mobile phone (i. e., installed instead in his automobile), the manager stated there was a waiting list and that he would call the witness back. In 1975 the witness had been a Southern subscriber, but due to the inadequacy of service afforded him had withdrawn as a customer. Because of his need for radio communications, and despite his prior dissatisfaction, he had sought in 1976 to obtain reinstallation of the system; Southern at first refused to accept his application, then demanded an exorbitant deposit, and then failed to return his calls to the owner to make more reasonable deposit arrangements.
Although the president as well as the manager of Southern testified that Southern offered two-way service, at least upon request and approved application, Southern's newspaper advertisements and brochures did not list this as a service available to the public. Nor did Southern's manager deny, in his subsequent testimony, the conversation with Goslin.
The witness Boddie, executive of a security and investigation company with 300 employees, testified that he had been a Southern subscriber since 1975. Because of the inadequacy of Southern's services in relaying messages and in providing two-way communication (despite numerous complaints by him for better service), his company had been forced to invest $50,000 in its own radio system. His company still used Southern's radio-pager system, which was adequate for downtown Shreveport, although inadequate for his purposes outside of that area, especially in the western part of Caddo Parish.
The witness Scoggins, a consulting petroleum engineer, testified that he has been a subscriber of Southern since 1974. He testified that he had been forced to buy his own multi-channel set for radio communications via Southern because Southern had none available at the time. He also testified to some congestion and delay in the use of the channels available through Southern for the radio-telephone service to which he subscribed.
The witnesses Collier (a contractor) and Taylor (office manager of her husband's oilfield diamond-coring business) testified to their unsuccessful attempts in 1975 to obtain Southern's radio carrier services in 1975 and to being told they must be put on waiting lists for at least one or two months. They had never re-applied.
The applicant's officers testified to their intention to offer two-way communication by portable units (which can be moved from the subscriber's car rather than installed therein), as well as by two-way service within the cars, a service not readily available from Southern, the existing carrier (see footnote 1). Three of the applicant's witnesses testified to the need for such service, and at least two of them testified they had sought to obtain it from Southern without success or without adequate relay-of-message service furnished by Southern.
Some of the evidence before the Commission thus showed (a) the inadequacy of service presently offered by Southern in the Shreveport-Natchitoches area under its existing certificate and (b) the inability or refusal, despite customer request, of Southern to afford adequate service, particularly of two-way communication between customer and caller.
The sufficiency of the evidence before the Commission is not re-weighed by the courts upon judicial review, and the courts will not overturn a Commission determination when there is some evidence upon which the Commission could reasonably base its finding. B M Trucking, Inc. v. Louisiana Public Service Comm'n, 353 So.2d 1323, 1327 (La. 1977).
As we stated in Louisiana Power Light Co. v. Louisiana Public Service Comm'n, 358 So.2d 623, 626 (La. 1978) (citations omitted):
"* * * [W]hile a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. * * * 'Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.'"
Conclusion
Accordingly, we respectfully dissent from the majority opinion's affirmance of the judgment of the district court, which annulled the Commission order granting the certificate to Radio Communication Consultants, Inc.