5 N.Y.2d 485, National Merchandising Corp. v. Public Service Commission

Citation:5 N.Y.2d 485, 186 N.Y.S.2d 47
Party Name:National Merchandising Corp. v. Public Service Commission
Case Date:April 09, 1959
Court:New York Court of Appeals
 
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Page 485

5 N.Y.2d 485

186 N.Y.S.2d 47

NATIONAL MERCHANDISING CORP., Appellant,

v.

PUBLIC SERVICE COMMISSION of the State of New York et al., Respondents.

New York Court of Appeals

April 9, 1959.

Page 486

[186 N.Y.S.2d 48] Paul W. Williams, William E. Hegarty, New York City, A. Warren Wilkinson, for appellant.

Page 487

Kent H. Brown, George H. Kenny, Albany, for Public Service Commission, respondent.

Edward S. Wood, Gloversville, for Cazenovia Telephone Corp., respondent.

Page 488

[186 N.Y.S.2d 49] BURKE, Judge.

This appeal, by permission of this court, involves a review of a determination of the Public Service Commission permitting several telephone companies to amend their tariffs to include the following regulation: 'Telephone directories distributed from time to time by the Telephone Company remain the property of the Telephone Company, shall not be mutilated, and shall be surrendered upon request or upon delivery of the subsequent issue. No binder, holder, insert, auxiliary cover or attachment of any kind not furnished by the Telephone Company shall be attached to or used with the directories owned by the Telephone Company, except that this prohibition shall not apply to a subscriber-provided binder, holder, insert or auxiliary cover which contains no advertising, and which is not so attached as to impede reference to essential service information or otherwise interfere with service.'

The proposed tariff amendments, contained in the original applications of the Cazenovia Telephone Corporation and the Seneca-Gorham Telephone Corporation were couched in much broader language. On its own motion, the Public Service Commission instituted a proceeding to investigate the propriety of these proposed regulations. The telephone companies concerned, as well as petitioner, National Merchandising Corp. appeared as parties in the proceeding. The commission concluded that some regulation was necessary and drafted the tariff set forth above, authorizing any telephone company so desiring to include it in its tariff schedules filed with the commission.

National, seeking a review of the commission's determination in this article 78 proceeding, now appeals from an order of the Appellate Division confirming the decision.

National is engaged in promotional advertising, and distributes to telephone subscribers in a particular area a clear plastic directory over, to which is attached a single opaque sheet containing advertisements of local merchants, together

Page 489

with their telephone number, as well as several emerbency numbers for the locality. It is made clear that these covers are distributed with the compliments of the local advertisers. Once delivered, National retains no control over the use to which the covers may be put by the subscribers.

The tariff, as approved by the commission, ostensibly governs the contractual relations of the telephone company and its subscribers, but its admitted purpose is to inhibit the activities of National and other firms engaged in similar enterises.

[186 N.Y.S.2d 50] The questions presented on this appeal involve the power of the Public Service Commission to...

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