Cambridge Telephone Co., Inc. v. Pine Telephone System, Inc.

• Decision Date: 17 December 1985
• Docket Number: No. 15558,15558
• Citation: 712 P.2d 576,109 Idaho 875
• Parties: CAMBRIDGE TELEPHONE CO., INC., Appellant, v. PINE TELEPHONE SYSTEM, INC., and Idaho Public Utilities Commission, Respondents. In the Matter of the Application of PINE TELEPHONE SYSTEM, INC., to establish a service area in Idaho.
• Court: Idaho Supreme Court

Page 576

712 P.2d 576

109 Idaho 875

CAMBRIDGE TELEPHONE CO., INC., Appellant, v. PINE TELEPHONE SYSTEM, INC., and Idaho Public Utilities Commission, Respondents In the Matter of the Application of PINE TELEPHONE SYSTEM, INC., to establish a service area in Idaho.

No. 15558.

Supreme Court of Idaho.

Dec. 17, 1985.

Lary C. Walker, Weiser, for appellant Cambridge Telephone Co.

Jim Jones, Atty. Gen., Marsha H. Smith, Deputy Atty. Gen., Boise, for respondent Idaho Public Utilities Commission.

John L. King, Boise, for respondent Pine Telephone System, Inc.

BAKES, Justice.

Cambridge Telephone Company has appealed the order of the IPUC which granted an application of Pine Telephone System, Inc., to establish a telephone service area on a portion of the Idaho side of the Snake River Canyon along the Oregon/Idaho border. We affirm the order of the commission.

This case involves the right to provide telephone service to the Idaho side of the Snake River Canyon bounded on the south by the Oxbow Dam and on the north by the Hell's Canyon Dam. The territory in question is approximately one-half mile wide and twenty-two miles in length, bordering a paved road which runs the distance of the disputed area. The road also extends south to the Oregon community of Oxbow.

Also running the length of the disputed area is a telephone cable owned by Mountain Bell. During the construction of the Hell's Canyon Dam the cable was first installed, but only a southern portion of the cable is presently used to provide telephone service to a former Idaho Power Company caretaker's residence which is located in a small section of the canyon territory previously certified to Mountain Bell. The southern end of the cable connects into Pine's telephone system at the Idaho/Oregon border near Oxbow, Oregon. Through an agreement with Mountain Bell, Pine presently provides the telephone service to the former Idaho Power residence within the disputed territory. There are three other residences along the canyon which presently need telephone service. The residents along the canyon rely on the Oregon communities of Oxbow and Halfway for social and community services.

With the exception of the small section certified to Mountain Bell, the southern portion of the disputed canyon area, along with the adjacent Idaho territory, was previously certified in 1979 to Cambridge. Three of the residences needing service are within the area previously certified to Cambridge, and the fourth residence in the small section certified to Mountain Bell is surrounded by territory previously certified to Cambridge. Prior to this dispute arising, Cambridge had extended its telephone services to within ten miles east of the disputed Oxbow area. Cambridge had also acquired materials and equipment and began laying telephone cable toward the Oxbow area in order to connect with the Mountain Bell cable and provide service to residents in the canyon. In the process, Cambridge had extended service to two or three residents along the way (not located in the disputed area) when the commission ordered a halt to the extension prior to completing the final 8-10 miles, which required a descent of approximately 4000 feet into the canyon to service the Oxbow area. Cambridge also planned on servicing the needs of future businesses and hoped to eventually provide telephone services further down the river canyon to the north to Hell's Canyon Dam, which was not in Cambridge's certified area. The northern portion of the disputed territory was previously uncertified.

Mountain Bell intervened at the IPUC hearing but is not a party to this appeal. Mountain Bell was willing to give up its small section of the disputed area and sell its telephone cable to either Pine or Cambridge. Mountain Bell's only interest was that the service to the residence within its small section be continued. Mountain Bell has no plans to alter or give up its right to provide telephone service to Idaho Power Company at the Hell's Canyon Dam, which service is presently supplied with the use of a microwave system.

Both Pine and Cambridge telephone companies were apparently unaware of each other's concurrent plans to provide telephone services along the Snake River Canyon. When Pine discovered that Cambridge was extending telephone cable toward Oxbow, Pine filed the application to establish a telephone service area along the Snake River Canyon. Cambridge filed a motion to dismiss the application, arguing that it was entitled under its existing certificate of convenience and necessity to service the entire disputed area. The four residents along the canyon all requested the commission to grant the application to Pine. Their preference was based on the fact that, if the area was granted to Cambridge, the residents may have to pay long distance charges to make telephone calls to the Oregon communities of Oxbow and Halfway. The commission determined that either company would incur the costs of acquiring and repairing the Mountain Bell cable running along the canyon and the cost of hookups to the residences. Pine would have no other expenses above and beyond these costs. However, Cambridge would have to expend an additional $47,325 in order to complete the laying of its telephone cable another ten miles descending approximately 4,000 feet in elevation to the bottom of the canyon near Oxbow. Based upon the difference in cost and the residents' community of interest in Oregon, the commission granted Pine's application to establish the service area and denied Cambridge's motion to dismiss. The order also allowed Cambridge to amortize its investment and allowed Cambridge an opportunity to submit further evidence on the amount of its investment and costs to terminate the project. Cambridge has appealed.

Our review on appeal is limited to "whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the Constitution of the United States or of the State of Idaho," I.C. § 61-629, and also whether the commission's findings are supported by substantial competent evidence. Boise Water Corp. v. Idaho Pub. Utilities Comm'n, 97 Idaho 832, 555 P.2d 163 (1976); Mountain View Rural Tel. Co. v. Interstate Tel. Co., 55 Idaho 514, 46 P.2d 723 (1935). Cambridge argued before the commission and now argues on appeal that the commission's order barring Cambridge from serving a portion of its certified ¹ area amounts to an unconstitutional taking of vested property rights. We hold that the findings contained in the order of the commission are adequate to justify the modification of Cambridge's certificate of convenience and necessity and revoke its privilege to provide telephone service to the disputed area.

There is no question that the certificate of convenience and necessity issued to Cambridge is a property right protected by the due process provisions of the United States and Idaho Constitutions. U.S.Const.Amend. V, Amend. XIV, § 1; Idaho Const. Art. 1, §§ 13-14. E.g., Frost v. Corporation Commission of State of Oklahoma, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929); City of Owensboro v. Cumberland Telephone & Telegraph Co., 230 U.S. 58, 33 S.Ct. 988, 57 L.Ed. 1389 (1913); Western Colorado Power Co. v. Public Utilities Comm'n, 168 Colo. 61, 428 P.2d 922 (1967); Mississippi Power & Light Co. v. City of Clarksdale, 288 So.2d 9 (Miss.1973). The procedural aspect of due process, i.e., adequate notice and timely hearing, have not been raised as issues on appeal, and we presume that Cambridge was afforded proper procedural due process. Due process also protects Cambridge's property interest in the certificate from being infringed upon. Cambridge argues that its property interest was taken without due process by misapplication of the law, insufficient evidence to justify the commission action, and that it must be justly compensated for the partial revocation of its certificate.

The commission basically made a public convenience and necessity analysis applying the factors enumerated in McFayden v. Public Utilities Consolidated Corp., 50 Idaho 651, 299 P. 671 (1931), and Application of Kootenai Natural Gas Co., 78 Idaho 621, 308 P.2d 593 (1957). Those cases involved...