Danville Redipage, Inc. v. Illinois Commerce Commission

• Decision Date: 28 August 1980
• Docket Number: No. 15669,15669
• Parties: , 43 Ill.Dec. 328 DANVILLE REDIPAGE, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION and Tel-Illinois, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 328

410 N.E.2d 328

87 Ill.App.3d 787, 43 Ill.Dec. 328

DANVILLE REDIPAGE, INC., Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION and Tel-Illinois, Inc.,

Defendants-Appellees.

No. 15669.

Appellate Court of Illinois, Fourth District.

Aug. 28, 1980.

Rehearing Denied Sept. 24, 1980.

Gary Lloyd Smith and Douglas G. Brown, P. C., Springfield, for plaintiff-appellant.

William J. Scott, Atty. Gen., State of Illinois, Hercules F. Bolos, Sp. Asst. Atty. Gen., Chicago, for defendants-appellees.

Dennis K. Muncy, Dennis L. Myers, Paul G. Moran, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, Champaign, for Tel-Illinois, Inc.

CRAVEN, Justice:

Tel-Illinois, Inc. (Tel-Illinois) sought a certificate of public convenience and necessity to conduct an interconnected paging operation in Vermilion County. The application was denied. Rehearing was sought before the Commerce Commission (Commission) and that Commission granted rehearing. Upon rehearing, the certificate was granted, one commissioner dissenting. The cause was then appealed to the circuit court seeking a review of the order of the Commission. That court affirmed the Commission order. Danville Redipage, Inc. (Redipage), an intervenor before the Commission appeals. We reverse.

The essential facts are not in dispute. Since 1968, Redipage has been providing noninterconnected manual page service for Danville, Illinois. Redipage did not then, nor does it now, hold a certificate from the Commission pursuant to the Public Utilities Act (Ill.Rev.Stat.1977, ch. 111 2/3, par. 55). In December 1976, Tel-Illinois sought authority from the Commission to operate an automatic radio paging service interconnected with a landline telephone company in Vermilion County. The differences in the services of Redipage and the proposed service of Tel-Illinois is that a manual service (Redipage) requires the caller to make a call to a central office. Upon receipt of the call, the operator sends a signal that activates a beeper in the pager. The paged person then calls for any message or else calls a predetermined number. The Tel-Illinois operation is automatic in that no operator intervention is necessary. Tel-Illinois also proposes a tone and voice operation in the area, which in addition to a beeper tone permits transmission of a short message by the caller to the person paged via the pager.

The Commission denied the application initially and assigned as its reason the fact that Tel-Illinois had not established a need for its proposed service in the area. In its reversal of position upon rehearing, the Commission made finding as to need and recited:

"Intervenor Redipage, which itself does not possess a Certificate of Public Convenience and Necessity and does not bear the obligations of continuous and adequate service which public utility status entails, seeks protection against competition by Applicant; this the Commission, consistent with its obligations to the public, cannot grant."

The Commission clearly was proceeding upon the theory that in the absence of a certificate from the Commission, Redipage was not a public utility and therefore was under no obligation to furnish adequate, efficient, just, and reasonable services as is required of a public utility.

Commission certification is not a condition precedent to classification as a public utility. As was noted in Illinois Power & Light Corp. v. Consolidated Coal Co. (1928), 251 Ill.App. 49, 75: "If a person or corporation assumes to act as a public utility and exercises the power thereof, although unlawfully, it will be considered a public utility." Further, in Eagle Bus Lines v. Illinois Commerce Com. (1954), 3 Ill.2d 66, 119 N.E.2d 915, the court observed that a business need not be incorporated or even presently regulated by the Commerce Commission to be a public utility in fact.

This record rather clearly demonstrates that Danville Redipage, Inc., was in the business of supplying a paging service in the Danville area and was doing so without a certificate from the Commerce Commission. The brief of the Commission recites its position to the effect that Danville Redipage was not required to obtain a certificate of convenience and necessity from the Commission. The brief reads:

"At the time the hearings were conducted in this matter, the paging services Danville Redipage provided consisted of manual paging services not interconnected with a landline telephone company. Traditionally, these kinds of services have not been and are not today regulated by the Commission, as is clear from the Attorney General's opinion of November 19, 1976 (File # S-1177). The services for which Tel-Illinois sought certification, however, are automatic paging services that are interconnected to a landline telephone company. These services have traditionally, and are today, subject to Commission jurisdiction and regulation."

The parties are in disagreement as to whether or not the recent opinion of the Illinois Supreme Court in Radio Relay Corp. v. Illinois Commerce Com. (1977), 69 Ill.2d 95, 12 Ill.Dec. 724, 370 N.E.2d 528, requires a noninterconnecting paging service to obtain a certificate from and be subject to the jurisdiction of the Commission. For purposes of this case, we need not determine that specific issue for we conclude that Redipage was in fact supplying a service and that as of the time of which we are...