Williams v. Public Service Com'n of Utah
| Decision Date | 10 March 1988 |
| Docket Number | Nos. 860313,860314 and 860517,s. 860313 |
| Parties | David R. WILLIAMS, dba Industrial Communications, Plaintiff, v. PUBLIC SERVICE COMMISSION OF UTAH: Brent H. Cameron, Commissioner; James M. Byrne, Commissioner; Brian T. Stewart, Commissioner, Defendants. David R. WILLIAMS, dba Industrial Communications, Plaintiff and Respondent, v. AMERICAN PAGING, INC., OF UTAH, a corporation, Defendant and Appellant. MOBILE TELEPHONE, INC., a corporation, Plaintiff and Respondent, v. AMERICAN PAGING, INC., OF UTAH, a corporation, Defendant and Appellant. |
| Court | Utah Supreme Court |
Keith E. Taylor, Michael L. Larsen, Brinton R. Burbidge, Salt Lake City, for Williams.
David L. Stott, Laurie L. Noda, Salt Lake City, for Public Service Comn.
Ted D. Smith, Salt Lake City, for Mountain States Tel. and Tel. Co.
David L. Wilkinson, Michael L. Ginsberg, Salt Lake City, for Div. of Public Utilities.
Patrick J. Oshie, Salt Lake City, for Committee of Consumer Services.
W.L. Johnson, Phoenix, for AT & T Communications.
Stuart L. Poelman, Larry R. Laycock, Salt Lake City, for American Paging.
Stephen R. Randle, Salt Lake City, for Page America.
Bryan L. McDougal, Salt Lake City, for Utah Cable TV Assn.
Kay M. Lewis, Salt Lake City, for Mobile Telephone.
Gregory Monson, William Christensen, Salt Lake City, for NewVector Communications, Inc.
This proceeding consolidates a petition for review of a rule formulated by the Public Service Commission of Utah (PSC), a petition for review of the PSC's denial of an application for a certificate of public convenience and necessity (certificate), and an appeal in a Third District Court civil action for damages. Common to each of these actions is the propriety of the PSC's conclusion in both proceedings before it that it has no jurisdiction to regulate one-way paging communications services. In the civil action for damages, the trial judge found that one-way paging services are within the PSC's jurisdiction pursuant to this Court's decision in Williams v. Public Service Commission, 720 P.2d 773 (Utah 1986).
A brief synopsis of the background of the dispute between the parties involved in this consolidated appeal is necessary. For greater factual detail, the reader is referred to Williams v. Public Service Commission, 720 P.2d 773, 773-75 (Utah 1986) (hereinafter Williams I ). 1
In 1962, the PSC granted a certificate to Mobile Telephone, Inc., authorizing Mobile to operate one-way and two-way paging systems. The PSC thereby tacitly exercised jurisdiction over one-way paging systems and continued to do so until 1983. During this period, the PSC granted several certificates authorizing one-way paging to a number of entities, including Williams, who was doing business as Industrial Communications. All but one of the certificates authorized both one-way and two-way paging operations. In the early 1980s, the Federal Communications Commission (FCC) deregulated radio frequencies used in paging operations and made an additional sixty-nine channels available in Utah on a first-come, first-served basis. See 47 C.F.R. § 22.501(a)(1) & (4), (d) & (p)(1) (1986). After receiving permission from the FCC to operate a service on one of the new frequencies, American Paging, Inc., contacted the PSC to determine whether a certificate was also required. In a letter dated June 3, 1983, the PSC notified counsel for American Paging that a certificate was not necessary because the PSC was not statutorily authorized to maintain jurisdiction over one-way paging services. See Williams I, 720 P.2d at 774 n. 4. Relying on this letter, American Paging commenced operations.
In August of 1983, Page America, Inc., filed an application with the PSC to operate a one-way paging service. The matter was set for public hearing during December 1983. Meanwhile, American Paging continued its operations with tacit PSC approval. Williams protested Page America's application and requested that the PSC issue a cease and desist order to American Paging, preventing it from further business operations. The PSC refused to do so, but did order American Paging to stop soliciting new customers.
After conducting public hearings on Page America's application, the PSC determined that it had no jurisdiction over one-way paging services, effectively deregulating the market. The PSC then cancelled the certificates previously issued to both Williams and Mobile Telephone. Williams and Mobile Telephone sought to protect their interests through various motions, including one requesting rehearing by the PSC. Upon denial of the rehearing, they filed an appeal with this Court that resulted in Williams I. The Court in Williams I found that the PSC should have followed the Utah Administrative Rulemaking Act's procedures in determining that it had no jurisdiction over one-way paging. 720 P.2d at 776. Thus, the action was remanded to the PSC for further proceedings consistent with the Court's findings. Id. at 778. Williams I was issued on March 4, 1986.
After Williams and Mobile Telephone's petition was filed in Williams I, but before this Court's decision was issued, American Paging applied for its own certificate and simultaneously moved for dismissal of its application on grounds that the PSC lacked jurisdiction over one-way paging. American Paging's motion was not directed toward the decision then pending before this Court, but rather sought to clarify the PSC's jurisdictional limits in light of newly enacted Utah Code Ann. § 54-8b-3 (1986), a statute which allowed the PSC to exempt certain sectors of the communications industry from regulation. Throughout the pendency of its application, American Paging continued business operations.
Again seeking to protect his interests, Williams intervened on May 28, 1985, in the PSC proceedings regarding American Paging's application. Over the ensuing months, several other parties intervened, including Mobile Telephone, Mountain States Telephone and Telegraph, and NewVector Retail Service, Inc. 2 Between the motions to intervene and the date Williams I was issued, numerous parties filed a variety of procedural motions that delayed the PSC's eventual order until after Williams I had been issued.
In response to American Paging's application for a certificate and its simultaneous motion for dismissal due to lack of jurisdiction, the PSC issued an order on May 23, 1986, granting American Paging's motion to dismiss. The order asserted the PSC's lack of jurisdiction over one-way paging services and specifically stated that Utah Code Ann. §§ 54-8b-1 to -9 (1986) did not affect PSC jurisdiction.
On March 18, 1986, following the remand of Williams I, the PSC issued a notice of rule change in compliance with the Utah Administrative Rulemaking Act. Utah Code Ann. § 63-46a-4 (1986). The PSC granted several extensions of time during which written comments on the proposed rule could be submitted. On May 15, 1986, Williams and Mobile Telephone filed notice of their opposition to the rule and a request for public hearing. Inasmuch as the request for public hearing was over two weeks late, it was not granted. See Utah Code Ann. § 63-46a-5 (1986). The PSC thereafter adopted rule 8304, to be effective May 16, 1986. Rule 8304 provides in relevant part, "The Public Service Commission of Utah does not have jurisdiction over one-way paging services." Williams' counsel later claimed that his client had received improper notice of the proposed rule. 3 Consequently, the PSC allowed Williams to file an affidavit with attachments to supplement the record to bolster these claims.
On March 11, 1986, Williams sent a letter to the PSC demanding that it prevent American Paging from continuing to operate one-way paging services without a certificate. The letter pointed out that Williams I had overturned the PSC's previous order, restoring jurisdiction over one-way paging to the PSC. When the PSC refused to act as requested, Williams and Mobile Telephone filed separate civil suits against American Paging for damages under Utah Code Ann. § 54-7-22 (1986). 4 The suits sought compensation for losses attributable to American Paging's allegedly unauthorized operations.
Following denial of American Paging's motions for summary judgment, the trial court chose to grant Williams' and Mobile Telephone's motions for partial summary judgment. American Paging moved the court to reconsider and clarify its order, to stay proceedings, and to extend a previously granted protective order. The court then vacated its prior memorandum decision and granted a declaratory judgment in favor of Williams and Mobile Telephone. The trial court's order and judgment relied on this Court's decision in Williams I and found that one-way paging was within the jurisdiction of the PSC. This order is before this Court on appeal pursuant to the lower court's certification under rule 54(b) of the Utah Rules of Civil Procedure. See Pate v. Marathon Steel Co., 692 P.2d 765, 767 (Utah 1984).
Prior to deciding the substantive questions presented by the parties, this Court must ascertain whether it has subject matter jurisdiction over the petitions and the appeal before it. Each action must be considered separately. The petition to review the PSC order dismissing American Paging's application for a certificate is governed by section 54-7-15, which states in pertinent part:
Before any party, stockholder, bondholder, or other person pecuniarily interested in the public utility who is dissatisfied with an order or decision of the commission may commence legal action, the aggrieved party or person shall first proceed as provided in this section.
(1) After any order or decision has been made by the commission any...
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