Appeal of Williams, Docket No. 9661

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROSE; RAPER
Citation626 P.2d 564
PartiesIn the Matter of the Appeal of David R. WILLIAMS d/b/a Industrial Communications From a Decision of the Wyoming Public Service Commission Inub 1 Dated
Docket NumberDocket No. 9661,S
Decision Date18 May 1979

Page 564

626 P.2d 564
In the Matter of the Appeal of David R. WILLIAMS d/b/a Industrial Communications From a Decision of the Wyoming Public Service Commission In Docket No. 9661, Sub 1 Dated May 18, 1979, As Altered By Its Decision Dated
August 29, 1979. David R. WILLIAMS, d/b/a Industrial Communications, Appellant (Petitioner),
v.
PUBLIC SERVICE COMMISSION OF WYOMING and Commercial Communications, Inc., Appellees (Respondents).
No. 5410.
Supreme Court of Wyoming.
April 10, 1981.

Michael A. Neider, Salt Lake City, Utah (argued) specially admitted for purposes of this case, and Walter P. Faber, Jr., Salt Lake City, Utah, and Ward White of Guy, Williams & White, Cheyenne, for appellant.

John D. Troughton, Atty. Gen., Thomas J. Carroll, III, Senior Asst. Atty. Gen., Steven R. Shanahan, Lawrence J. Wolfe, Asst. Attys. Gen., Cheyenne, for appellee Public Service Commission.

Page 565

David H. Carmichael (argued) of Carmichael, McNiff & Patton, Cheyenne, for appellee Commercial Communications, Inc.

Before ROSE, C. J., and McCLINTOCK *, RAPER, THOMAS and ROONEY, JJ.

RAPER, Justice.

From an order of the district court affirming an order of the Public Service Commission (PSC), David R. Williams, d/b/a Industrial Communications (appellant) feels aggrieved and appeals. Several issues are presented. Their focus is upon the PSC's authority to regulate radio common carriers. 1 Appellant states the questions raised as follows:

"1. Whether the Commission exceeded its authority in attempting to allocate common carrier two-way radio telephone channels when the allocation and granting of such channels is in the exclusive jurisdiction of the Federal Communications Commission (FCC).

"2. Whether the Commission exceeded its authority by requiring the partes to obtain or relinquish radio channels and otherwise comply within a certain period of time because the parties have no control over the FCC which has exclusive jurisdiction of such matters.

"3. Whether the Commission exceeded its authority in attempting to limit Industrial Communication's radio service area when the grant of any common carrier radio service area is in the exclusive jurisdiction of the FCC.

"4. Whether the Commission without a basis in fact or law arbitrarily and capriciously reduced Industrial Communication's service area granted in 1977."

Appellee, Commercial Communications, Inc. (Commercial), views the case more simply as asking:

"A. Whether the regulatory action taken by the Wyoming Public Service Commission, in the instant case, is prohibited because of the doctrine of 'federal pre-emption'?

"B. Whether the Wyoming Public Service Commission exceeded its statutory authority in modifying previously issued Certificates of Convenience and Necessity, in the instant case, by attaching certain conditions to those Certificates and, if so, may the Petitioner, David R. Williams d/b/a Industrial Communications, successfully assert reversible error at this point in the proceedings?"

We will affirm the district court.

In January of 1977 Commercial filed its application with the PSC for authority to commence radio telephone service to the cities of Rawlins and Evanston in southwestern Wyoming. This was done pursuant to § 37-2-205(a), W.S. 1977, which provides:

"(a) No public utility shall begin construction of a line, plant or system, or of any extension of a line, plant or system without having first obtained from the commission a certificate that the present or future public convenience and necessity require or will require such construction. This act shall not be construed to require any public utility to secure a certificate for an extension within any city or town within which it has lawfully commenced operation, or for an extension into territory contiguous to its line, plant or system for which no certificate is in force and is not served by a public utility of like character or for any extension within or to territory already served by it, necessary in the ordinary course of its business. If any public utility, in constructing or extending its line, plant or system interferes or is about to interfere with the operation of the line, plant or system of any other public utility already authorized or constructed, the commission on complaint of the public utility claiming to be injuriously affected, may after hearing make such order and prescribe the terms and conditions for the location

Page 566

of the lines, plants or systems affected, as to it are just and reasonable. The power companies may, without the certificate, increase capacity of existing plants." 2

Various parties, including appellant, filed protests and sought to intervene in the proceedings conducted by the PSC upon such an application.

Appellant filed its own application for a certificate of convenience and necessity in February of 1977. In it, authority was sought to provide radio telephone service to all or parts of the southwestern Wyoming Counties of Lincoln, Uinta, and Sweetwater. Protests were filed by various parties including Commercial, and leave to intervene was requested.

On August 22, 1977, appellant petitioned for leave to amend its application in order to include Sublette and Carbon Counties. As later found by the PSC:

" * * * The Commission denied the petition in an order dated August 25, 1977, but in response to a motion made by Industrial in the pre-hearing conference held August 29, 1977, the Commission allowed Industrial to present evidence pertaining to Sublette and Carbon County."

All matters were consolidated for hearing by the PSC. On August 29, 1977, a prehearing conference began. During this conference settlement negotiations were carried out by the parties. As a result a stipulation was agreed to. This agreement was dated September 1, 1977, and was incorporated by reference into the order issued by the PSC on November 29, 1977, which provided in pertinent part:

"2) Each of the above applicants agrees and stipulates that each shall and does hereby withdraw as a protestant and/or intervenor, as the case may be, in and to the application and requested amendments of each of the others in the respective Docket No. and case, and further agrees and stipulates that each could have and is hereby considered as having furnished sufficient evidence to justify and warrant the complete granting of the respective application and requested amendments thereto by the Wyoming Public Service Commission, except as specifically limited herein.

"9) Each of the above applicants agrees and stipulates that the application and requested amendments of each as stated above should be granted under the following terms and conditions:

"(d) Commercial Communications, Inc. and David R. Williams will jointly apply to the FCC for a construction permit and license for VHF channel 7 (frequency 152.120 MHz) for Carbon County, Wyo., and shall share equally in the cost of obtaining and installing said channel, operating said channel and the use of said channel. Neither Commercial nor Williams shall use said channel during any period so as to prevent the use by the other of one-half of the channel time during such period. None of the other applicants shall protest Commercial's and Williams' application to the FCC for said channel.

"(e) Commercial and Williams shall within three weeks from the date hereof arrange to meet in Evanston, Wyoming to study and determine if any interference will occur to either because of the use of VHF channels 1 and 9 in that area. If it is determined that undue interference will occur, Commercial and Williams agree to work out a solution and agree that any such interference will be deemed to be caused equally by the operations of both and

Page 567

shall be equally the responsibility of both. This shall not be construed to require a change in effective radiated power or antenna direction of any presently existing transmitters.

"(f) Each applicant shall receive authority as requested in each individual application and requested amendments thereto except as limited in this stipulation."

On August 2, 1978, Commercial filed a complaint and petitioned for cancellation of appellant's certification of public convenience and necessity. It alleged that appellant was blocking and obstructing Commercial's efforts to commence service in Rawlins and Evanston and that Commercial had signed the September 1, 1977 stipulation because of the coercion, threats, and business duress instigated by appellant. In the alternative it asked that the PSC declare that Sublette and Sweetwater Counties were not included in appellant's certificate as service areas. Appellant filed an answer and counterpetition on August 29, 1978. In it the claim was made that it was Commercial, not appellant, that had refused to corporate in bringing radio telephone service to southwestern Wyoming.

On December 1, 1978, the PSC entered an order setting the matter for hearing and listed the following issues as those to be resolved:

"a) Whether Industrial has in any manner violated the Commission's Order of November 29, 1977;

"b) Whether there was fraudulent inducement upon any party to sign the Stipulation of September 1, 1977; should such be found to exist, what impact, if any, does, this have upon the Stipulation and the parties who relied thereon;

"c) What is the scope of the Stipulation with regard to the operating authority provided therein; and

"d) To what extent, if any, has the public been harmed by the inability of the parties to comply with the Commission's Order of November 29, 1977 and what action, if any, is required in the public interest to alleviate such harm as may be found to exist."

The PSC then directed:

"c) Both parties shall be under the same burden of producing sufficient evidence to show why their respective certificates of November 29, 1977 should not be revoked, altered or amended in any manner as may be required in the public interest."

Finally, the order noted:

"5. The Commission...

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20 practice notes
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Julio 1982
    ...and it always is open to consideration by a reviewing court upon its own motion. Williams v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational R......
  • Hanson v. Belveal, Nos. S–11–0130
    • United States
    • United States State Supreme Court of Wyoming
    • 19 Julio 2012
    ...error based upon that action. Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A., 750 P.2d 1324, 1328 (Wyo.1988); Appeal of Williams, 626 P.2d 564, 571 (Wyo.1981), cert. denied,454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 [ (1981) ]; and Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 978......
  • Illinois Consol. Telephone Co. v. Illinois Commerce Com'n, No. 55665
    • United States
    • Supreme Court of Illinois
    • 24 Enero 1983
    ...* * used * * * by any telephone corporation to facilitate the business of affording telephonic communication"); In re Williams (Wyo.1981), 626 P.2d 564, 566 n. 2, cert. denied (1981), 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (radio common carriers, which generally provide mobile telephon......
  • Southern Message Service, Inc. v. Louisiana Public Service Com'n, No. 89-CA-2121
    • United States
    • Supreme Court of Louisiana
    • 11 Diciembre 1989
    ...69 Ill.Dec. 78, 447 N.E.2d 295 (1983); Appeal of Omni Communications, Inc., 122 N.H. 860, 451 A.2d 1289 (1982); but see In re Williams, 626 P.2d 564 (Wyo.), cert. denied, 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). In other states, the utility commissions proceeded under the theory ......
  • Request a trial to view additional results
20 cases
  • Harrington's Estate, Matter of, No. 5606
    • United States
    • United States State Supreme Court of Wyoming
    • 22 Julio 1982
    ...and it always is open to consideration by a reviewing court upon its own motion. Williams v. Public Service Commission of Wyoming, Wyo., 626 P.2d 564 (1981); Hayes v. State, Wyo., 599 P.2d 569 (1979); Merritt v. Merritt, Wyo., 586 P.2d 550 (1978); Pritchard v. State Division of Vocational R......
  • Hanson v. Belveal, Nos. S–11–0130
    • United States
    • United States State Supreme Court of Wyoming
    • 19 Julio 2012
    ...error based upon that action. Thatcher & Sons, Inc. v. Norwest Bank Casper, N.A., 750 P.2d 1324, 1328 (Wyo.1988); Appeal of Williams, 626 P.2d 564, 571 (Wyo.1981), cert. denied,454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 [ (1981) ]; and Weber v. Johnston Fuel Liners, Inc., 519 P.2d 972, 978......
  • Illinois Consol. Telephone Co. v. Illinois Commerce Com'n, No. 55665
    • United States
    • Supreme Court of Illinois
    • 24 Enero 1983
    ...* * used * * * by any telephone corporation to facilitate the business of affording telephonic communication"); In re Williams (Wyo.1981), 626 P.2d 564, 566 n. 2, cert. denied (1981), 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (radio common carriers, which generally provide mobile telephon......
  • Southern Message Service, Inc. v. Louisiana Public Service Com'n, No. 89-CA-2121
    • United States
    • Supreme Court of Louisiana
    • 11 Diciembre 1989
    ...69 Ill.Dec. 78, 447 N.E.2d 295 (1983); Appeal of Omni Communications, Inc., 122 N.H. 860, 451 A.2d 1289 (1982); but see In re Williams, 626 P.2d 564 (Wyo.), cert. denied, 454 U.S. 896, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981). In other states, the utility commissions proceeded under the theory ......
  • Request a trial to view additional results

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