Cameron Telephone Co. v. Louisiana Public Service Com'n

• Decision Date: 17 October 1983
• Docket Number: No. 83-CA-0037,83-CA-0037
• Citation: 440 So.2d 694
• Parties: CAMERON TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION and Southern Message Service, Inc. GULF CENTRAL INTERNATIONAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION and Kaplan Telephone Company, Inc.
• Court: Louisiana Supreme Court

Page 694

440 So.2d 694

CAMERON TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION and Southern Message

Service, Inc.

GULF CENTRAL INTERNATIONAL, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION and Kaplan Telephone Company, Inc.

No. 83-CA-0037.

Supreme Court of Louisiana.

Oct. 17, 1983.

Rehearings Denied Dec. 9, 1983.

Carlos G. Spaht, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-appellant.

Patrick A. Juneau, Jr., Voorhies & Labbe, Lafayette, for plaintiff-appellant.

Ashton R. Hardy, James P. Popham, Joan C. Wetzel, Fawer, Brian, Hardy & Zatzkis, New Orleans, for intervenor-appellant.

Marshall B. Brinkley, Tom F. Phillips, Lytle C. Turnely, James L. Ellis, Baton Rouge, Guy Holdridge, Crawford, St. Amant & Holdridge, Gonzales, Stenn Alexander, for defendants-appellees.

Glenn W. Alexander, Jerry G. Jones, Jones, Jones & Alexander, Cameron, for plaintiff-appellee.

William R. Boles, Jr., Boles & Mounger, Monroe, for intervenor-appellee.

DIXON, Chief Justice.

This appeal from the Nineteenth Judicial District Court is to review two rulings of the Louisiana Public Service Commission.

1. Background

A brief review of the "land mobile communications" business and technology is necessary to understand the rulings of the commission and the positions of the parties in this case.

Telephone service is normally provided by direct wire connection between the subscriber and the telephone company. The telephone company operates telephone exchanges which allow connections to be made between subscribers. Connections are also made between exchanges to allow subscribers access to other telephone subscribers throughout the world. Such telephone companies are called "land line telephone carriers."

The direct wire connection may be replaced with radio communication, allowing the subscriber to have a mobile telephone with two-way communication with the telephone company. Alternatively, the subscriber could arrange for one-way communication from the telephone company to a "beeper" which may allow voice communication in addition to the beep tone. Mobile telephone service and radio paging are forms of "land mobile communications."

Land mobile communications can be provided by both land line telephone companies and by independent companies known as "radio common carriers" which are in turn connected to the land line telephone company. Though land line telephone companies and radio common carriers operate on different ranges of radio frequencies assigned by the Federal Communications Commission, the service provided to the customer is essentially the same.

With one-way (paging) service the subscriber desiring to contact the subscriber wearing the beeper calls the designated number for the particular beeper. The call is routed to the telephone company's transmitter (in the case where the land line company provides the service) or to the radio common carrier's transmitter (in the case where the radio common carrier provides the service) and the signal is sent. If the beeper is within the range of the transmitter, the signal is received. The process is essentially the same for mobile radio service, except that the call can originate from mobile telephones and sustained communication is achieved.

2. Regulation

While the FCC licenses the use of specific frequencies for land mobile communication operators, regulation of market entry, service and rates has been left to the states. In Louisiana, the land mobile communications industry is regulated by the Louisiana Public Service Commission.

Article 4, § 21 of the Louisiana Constitution of 1974 provides for a public service commission which:

"... shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law."

Telephone companies are public utilities under the jurisdiction of the Louisiana Public Service Commission. See South Central Bell Telephone Co. v. Louisiana Public Service Commission, 352 So.2d 999 (La.1977); R.S. 45:1161, 1164. Telephone companies are also subject to the provisions of R.S. Title 45, Ch. 8 (45:781 et seq.)

Telephone service in Louisiana is served in some areas by South Central Bell, one of the Bell Operating Companies owned by AT & T, and in other areas by various independent telephone companies. Telephone companies are granted exclusive franchises to provide services within their assigned territories and therefore do not compete with one another for customers.

The public service commission regulates radio common carriers under the provisions of R.S. Title 45, Ch. 12 (45:1500 et seq.).

"The Louisiana Public Service Commission shall exercise over and in relation to radio common carriers the powers conferred by this Chapter." R.S. 45:1500.

Radio common carrier is defined in 45:1501(C):

"The term 'radio common carriers' when used in this Chapter includes every corporation, company, association, partnership and persons and lessees, trustees, or receivers, appointed by any court whatsoever owning, operating or managing a radio common carrier or public 'for hire' radio service engaged in the business of providing a service of radio communications between mobile and base stations, between mobile and land stations, including land line telephone, between mobile stations or between land stations, but not engaged in the business of providing a public land line message telephone service or a public message telegraph service." (Emphasis added).

R.S. 45:1501(D) continues:

"Notwithstanding any provisions or R.S. 45:781 through 45:790 [telephones and telegraphs] inclusive, or any provision of this Chapter, the term 'radio common carrier' as used in this Chapter shall not be construed to mean a company operating under the provisions of Title 45, Chapter 8, of the Louisiana Revised Statutes, and no such radio common carrier shall have any of the powers, rights or duties provided for and prescribed by said Title 45, Chapter 8." (Emphasis added).

R.S. 45:1502 provides that rates and service shall be just, reasonable and not unduly preferential, and that the public service commission has the authority to issue rules regulations and orders to govern rates and service.

R.S. 45:1503 requires a radio common carrier to obtain a certificate of public convenience and necessity before beginning operations in a new area (except for expanding an adjacent area not served by another radio common carrier). A radio common carrier holding a certificate is protected from competition from other radio common carriers by R.S. 45:1503(C):

"The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service."

Because land line telephone companies are specifically excluded from the provisions of the radio common carrier statute, the commission has not required land line telephone companies to request a certificate of public convenience and necessity to construct or operate land mobile communication facilities within their geographical area. However, the commission had indicated that where a land line telephone company seeks to operate land mobile communications equipment outside of its geographical area (for example, a south Louisiana telephone company intending to offer radio services in north Louisiana), a certificate from the commission would be required. See Order No. U-13727-A, James D. and Larry D. Garvey, d/b/a Radiofone v. Lafourche Telephone Company, April 19, 1979.

Neither of these two interpretations of the exclusion of land line telephone companies from the radio common carrier statute is challenged in this appeal. Rather, in the two orders presented for review, the land line telephone companies' transmitters, located within their geographical areas, have effective ranges which extend beyond the borders of the companies' land line service areas. It is the competition for customers outside the land line service area that prompted the complaints to the public service commission.

3. The commission's orders

A. Southern Message Service, Inc. v. Cameron Telephone Company.

On December 26, 1979 Southern Message Service, Inc., a radio common carrier holding a certificate for the Lake Charles Area, filed a complaint with the commission alleging that Cameron Telephone Company, a land line telephone company serving areas of Cameron and Calcasieu Parishes (but not Lake Charles or Sulphur, which are served by South Central Bell), "has plans in progress for the constructing of a transmitter for a one way paging radio telephone service at Carlyss, Louisiana, in Calcasieu Parish which will provide a radio telephone paging service in the Lake Charles and Sulphur area to customers outside its wire area and in the area which plaintiff has a Certificate of Public Convenience and Necessity to serve." Cameron answered the complaint admitting that it had applied to the FCC for a construction permit to build transmitting facilities at Carlyss, "the location of which facilities is wholly within the service area authorized by [the public service commission]. Cameron Telephone Company intends to operate this paging system from its authorized service area and to provide service to the public within the radius of its service capabilities." The transmitter was planned for the 200 foot tower already existing at Carlyss.

The complaint was assigned Docket No. U-14506 and notice of the hearing was sent to the parties and published in the Louisiana Public Service...