ATS Mobile Telephone, Inc., Omaha v. Curtin Call Communications, Inc.

• Decision Date: 31 July 1975
• Docket Number: No. 39855,39855
• Citation: 194 Neb. 404,232 N.W.2d 248
• Parties: , 34 Rad. Reg. 2d (P & F) 1053 ATS MOBILE TELEPHONE, INC., OMAHA, Nebraska, Appellee, v. CURTIN CALL COMMUNICATIONS, INC., et al., Appellants.
• Court: Nebraska Supreme Court

Page 248

232 N.W.2d 248

194 Neb. 404, 34 Rad. Reg. 2d (P & F) 1053

ATS MOBILE TELEPHONE, INC., OMAHA, Nebraska, Appellee, v. CURTIN CALL COMMUNICATIONS, INC., et al., Appellants.

No. 39855.

Supreme Court of Nebraska.

July 31, 1975.

Syllabus by the Court

1. The Supremacy Clause (Article VI, clause 2), together with the Commerce Clause (Article I, section 8, clause 3), of the United States Constitution gives Congress the right and power to regulate interstate commerce, and this power acts to preempt state regulations in the area of interstate commerce if Congress intended to preempt the area, or if the state and federal laws irreconcilably conflict, or if in the nature of the subject regulated, there is a need for national uniformity.

2. In areas of the law not inherently requiring national uniformity, it is required that state statutes, otherwise valid, must be upheld unless there is found such actual conflict between the two schemes that both cannot stand in the same area, or evidence of a congressional design to preempt the field.

3. Title 47 U.S.C.A., section 221(b), provides: Subject to the provisions of section 301 of this title, nothing in this act shall be construed to apply, or to give the commission jurisdiction, with respect to charges, classifications, practices, services, facilities, or regulations for or in the connection with wire, mobile, or point-to-point radio telephone exchange service, or any combination thereof, even though a portion of such exchange service constitutes interstate or foreign communication, in any case where such matters are subject to regulation by a state commission or by local governmental authority.

4. Mobile radio telephone services are essentially intrastate in nature even though the radio portion of such services may spill over into an adjoining state.

5. Congress, in enacting section 221(b) of Title 47 U.S.C.A., intended to reserve to the several states the right to regulate such intrastate mobile radio telephone services in the manner specified in section 221(b), even though such mobile radio telephone services involved interstate communication.

Einar Viren, Viren, Epstein & Leahy, Omaha, for appellants.

Donald H. Erickson, Erickson, Sederstrom, Johnson & Fortune, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an appeal by the defendants, Curtin Call Communication, Inc. (Curtin Call), and Ben and Mary Ciaccio, doing business as Telephone Secretaries of Omaha and Telephone Answering Service of Omaha, from a ruling by the Nebraska Public Service Commission sustaining a complaint filed by the complainant, ATS Mobile Telephone, Inc. (ATS). The Commission ordered Curtin Call to cease and desist from offering communication services to Nebraska customers without first receiving a certificate of public convenience and necessity from the Nebraska Public Service Commission. We affirm the judgment of the Nebraska Public Service Commission.

The facts in this case are undisputed. Both Curtin Call and ATS are involved in mobile radio telephone paging services. The paging device functions as follows: A caller who desires to communicate with one of the paging services' customers dials a seven-digit number on a normal land exchange telephone. This number connects the caller to the paging system. The system then connects the caller to the customer via a radio signal which activates the paging device carried by the customer. The paging device, depending on the type, emits either a tone or a tone-and-voice message after being activated by the signal. The system can also be set up to provide two-way paging service; that is, the customer can communicate in return with the caller, and he can also dial into the land-exchange telephone system through the use of the paging device.

ATS holds a certificate of public convenience and necessity issued by the Nebraska Public Service Commission and a license from the Federal Communications Commission to operate a mobile radio telephone paging service in Omaha, Nebraska, and Council Bluffs, Iowa.

Curtin Call applied for a Nebraska certificate of public convenience and necessity to provide a similar paging service in Omaha, Nebraska, but the Nebraska Public Service Commission denied the request. In May 1972, the Federal Communications Commission granted a frequency channel to Curtin Call to operate a paging service in Council Bluffs, Iowa. In granting Curtin Call's application, the Federal Communications Commission noted that the application was to serve the Council Bluffs area, not the Omaha area. In its order, the Federal Communications Commission pointed out that the permit did not authorize Curtin Call to serve customers in Nebraska, and if Curtin Call desired to serve customers in Nebraska, it should first apply to the Nebraska State Railway Commission (predecessor to the Nebraska Public Service Commission).

Curtin Call, through its sales personnel, has secured customers from Omaha, Nebraska. The defendant admits that some of its customers are located in Nebraska. The president and one of the stockholders of Curtin Call, Ben Ciaccio, has an office in Omaha, from which he solicits orders for Curtin Call. Another stockholder, William Curtin, solicits orders for Curtin Call in Omaha, Nebraska, under the tradename of Radio Contact Communications.

On April 19, 1974, ATS filed a formal complaint with the Nebraska Public Service Commission charging that Curtin Call was offering mobile radio telephone paging service in Omaha, Nebraska, without a Nebraska certificate of public convenience and necessity. Four days later, on April 23, 1974, ATS filed a petition with the Federal Communications Commission requesting a cease and desist order to be issued against Curtin Call. That petition is still pending.

On September 3, 1974, the Nebraska Public Service Commission sustained ATS' complaint and ordered Curtin Call to cease and desist from offering paging service to customers in Nebraska without first receiving a certificate of public convenience and necessity. The defendants appeal from that order.

The sole issue to be decided on appeal is whether the Nebraska Public Service Commission has jurisdiction over both the subject matter of the complaint and the defendant.

Under the Supremacy Clause, Article VI, clause 2, of the Constitution of the United States, the federal constitution and laws are the supreme laws of the land. State regulation in an area legitimately regulated by the federal government can avoid being preempted if three tests are passed. First, did Congress intend to preempt the area? Second, do the state and federal laws irreconcilably conflict? Third, by the very nature of the subject regulated, is there a need for national uniformity? The answer must be 'no' to all three questions if the state regulation is to be upheld.

This three-pronged test is set out in Florida Lime & Avocado Growers, Inc. v Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248. In that case, as in the case at hand, state regulation of interstate commerce was challenged. The Commerce Clause, Article I, section 8, clause 3, of the Constitution of the United States, gives Congress the right to regulate interstate commerce. Thus, the Supremacy Clause, together with the Commerce Clause, acts to preempt state regulation in the area of interstate commerce if the three tests are not met. First, the United States Supreme Court determined that there was no actual conflict between the state and federal regulations. Next, the court applied the two remaining tests. 'The issue under the head of the Supremacy Clause is narrowed then to this: Does either the nature of the subject matter, * * *, or any explicit declaration of congressional design to displace state regulation, require § 792 (California statute) to yield to the federal marketing orders?' See 373 U.S. at p. 143, 83 S.Ct. at p. 1218.

In Head v. New Mexico Board of Examiners in Optometry, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983, the United States Supreme Court again indicated that state regulation in the area of interstate commerce must pass the three tests. The court said: 'In areas of the law not inherently requiring national uniformity, our decisions are clear in requiring that state statutes, otherwise valid, must be upheld unless there is found 'such actual conflict between the two schemes of regulation that both cannot stand in the same area, (or) evidence of a congressional design to preempt the field.''

The first and major question then to ask in this case is: Did Congress, in enacting the Communications Act of 1934, Title 47 U.S.C.A., sections 151 to 609, intend to occupy the area of mobile radio telephone communications to the exclusion of the states? The answer is clearly 'no.' One section of the Communications Act of 1934 is precisely on point. Title 47 U.S.C.A., section 221(b), reads: 'Subject to the provisions of section 301 of this title, nothing in this Act shall be construed to apply, or to give the Commission jurisdiction, with respect to charges, classifications, practices, services, facilities, or regulations for...