Ceracche Television Corp. v. Public Service Commission

• Decision Date: 01 July 1960
• Citation: 49 Misc.2d 554,267 N.Y.S.2d 969
• Parties: , 36 P.U.R.3d 278 Application of CERACCHE TELEVISION CORPORATION, Petitioner, for an order pursuant to the provisions of Article 78 of the New York Civil Practice Act v. The PUBLIC SERVICE COMMISSION of the State of New York, and New York Telephone Company, Respondents.
• Court: New York Supreme Court

Page 969

267 N.Y.S.2d 969

49 Misc.2d 554, 36 P.U.R.3d 278

Application of CERACCHE TELEVISION CORPORATION, Petitioner for an order pursuant to the provisions of Article 78 of the New York Civil Practice Act v. The PUBLIC SERVICE COMMISSION of the State of New York, and New York Telephone Company, Respondents.

Supreme Court, Special Term, Albany County.

July 1, 1960.

Whalen, McNamee, Creble & Nichols, Albany, for petitioner (John R. Titus, Albany, of counsel).

Kent H. Brown, Albany, for respondent, Public Service Commission (George H. Kenny, Albany, and Lawrence M. Devore, of counsel).

G. Wallace Bates, Eric B. Nelson, George E. Ashley, Edward L. Friedman, New York City, for New York Telephone Company (Eric B. Nelson, New York City, of counsel).

MAC AFFER, Justice.

This is an application under Article 78 of the Civil Practice Act for an order annulling two certain orders of the Public Service Commission made May 12, 1959 and June 9, 1959 in Public Service Commission case no. 19616, which first order dismissed petitioner's complaint and which second order affirmed said order of May 12, 1959, and denied petitioner's petition for reopening and for a further order directing the Public Service Commission to grant petitioner's request for a hearing.

The respondent Public Service Commission is hereinafter referred to as the 'Commission' and the respondent, New York Telephone Company, as the 'Company.'

The petitioner is engaged in the business of 'piping' television signals from a hilltop antenna by wires to individual householders in and about the City of Ithaca, New York. Under date of February 8, 1954 petitioner entered into a written contract with the Company for leasing space on poles owned or leased by the Company for the attachment of petitioner's transmission wires thereon. The contract provided that the petitioner would pay as rental therefor the sum of $1.50 per pole semi-annually or $.25 per pole per month where less than six months were involved. The contract also limited the petitioner to the transmission of regular standard 'off-the-air' broadcasts over petitioner's transmission wires.

On January 9, 1958, after some negotiations, the company by letter to the petitioner extended permission to the petitioner to carry television programs originating in the studios of Ithaca College at Ithaca, New York over the facilities of the petitioner covered by the aforesaid contract between the parties. Such programs were not within the use of company's poles as defined in the contract. Such permission of the company was extended on a temporary and terminable basis by the company.

The aforesaid contract between petitioner and the company was to continue in effect until February 8, 1960 and thereafter until terminated by either party on six months' written notice. On December 22, 1958 the contract was amended by the parties to increase the pole rental to $2.50 semi-annually and to $.42 per month. The amendment was consented to by the petitioner through its president, with the reservation that it was 'without prejudice to my rights under such orders as may be issued by the Public Service Commission of the State of New York with respect to the rates and provisions therein.'

In the meantime the company reconsidered the ramifications of the permission for the Ithaca College broadcasts over petitioner's facilities on the company's poles and determined to withdraw such permission effective subsequent to the end of the college year of June, 1960. Such decision of the company was communicated to the petitioner and the college early in 1959.

Thereafter, the petitioner filed with the Commission a complaint dated February 6, 1959 against the company primarily on the basis of the increase of rentals and the withdrawal of the permission for the Ithaca College broadcasts. The complaint sought to have the commission assume jurisdiction to adopt tariffs and otherwise regulate the relationship between the petitioner and the company. The complaint was referred by the commission to the company which filed an answer. No hearing was held by the commission. Under date of May 12, 1959 the complaint was dismissed. The dismissal was on the ground that the commission was without jurisdiction in the matter.

The petitioner filed a petition for a reopening of the case in which it requested a hearing on the issue of the commission's jurisdiction and the consideration of a reply by the petitioner to the company's answer. After consideration of this application, the commission, by order dated June 9, 1959 reaffirmed its May 12, 1959 decision and denied the application for a rehearing. This proceeding followed.

The petitioner contends that its contract and the relationship between the petitioner and the company arising therefrom are subject to regulation by the commission under the Public Service Law. The gist of the contention is that since the company is subject to the jurisdiction of the commission as a telephone company the attachment of petitioner's facilities to the poles of the company brings the petitioner's relationship with the company within the jurisdiction of the commission. The petitioner seeks a direction by this court that the commission assume jurisdiction of the matter and regulate...