Dayton Communications Corp. v. Public Utilities Commission of Ohio, 80-512

• Decision Date: 30 December 1980
• Docket Number: No. 80-512,80-512
• Citation: 414 N.E.2d 1051,64 Ohio St.2d 302,18 O.O.3d 478
• Parties: , 18 O.O.3d 478 DAYTON COMMUNICATIONS CORP. et al., Appellants, v. PUBLIC UTILITIES COMMISSION OF OHIO et al., Appellees.
• Court: Ohio Supreme Court

Page 302

64 Ohio St.2d 302

414 N.E.2d 1051, 18 O.O.3d 478

DAYTON COMMUNICATIONS CORP. et al., Appellants, v. PUBLIC UTILITIES COMMISSION OF OHIO et al., Appellees.

No. 80-512.

Supreme Court of Ohio.

Dec. 30, 1980.

Fredric L. Sinder, Dayton, for appellants.

Marvin I. Resnik and Donn D. Rosenblum, Columbus, for appellee.

Ronald L. Orloff, Cleveland, and Nathaniel Hawthorne, Washington, D. C., for intervening appellee Ohio Bell Telephone Company.

PER CURIAM.

I.

Appellants argue that the interior wire and cable are fixtures and permanent accessions to the freehold. They deny that Ohio Bell, through its tariff, ¹ has a legitimate claim of ownership of the wire and cable installed by it.

Appellants thus assert a claim of ownership grounded in the common law of property allegedly superior to the claim of Ohio Bell. However, the commission has no authority to adjudicate competing claims of property ownership. Such a function is constitutionally reserved to the judiciary. Section 1, Article IV of the Ohio Constitution. The commission does not possess judicial power and may not adjudicate controversies between parties as to property rights. New Bremen v. Pub. Util. Comm. (1921), 103 Ohio St. 23, 132 N.E. 162; State ex rel. Dayton Power & Light Co., v. Riley (1978), 53 Ohio St.2d 168, 373 N.E.2d 385. The commission properly recognized its lack of jurisdiction to adjudicate or recognize Big Hill and Imperial House's claims of ownership of the telephone wire and cable installed within their buildings.

II.

Appellants argue that the interior wire and cables installed in their motels are analogous to aerial telephone cable, such as runs from pole to pole throughout the countryside. Aerial cable costs, plus a reasonable return, are recovered by Ohio Bell through rates charged pursuant to its Exchange Rate Tariff. ² Appellants contend that Ohio Bell must allow use of the interior wire and cable in their privately owned buildings as a necessary component of its duty to provide access to the general local and long-distance network. Correspondingly, they argue that subscribers who own such wire and cable are entitled to a reduction of charges assessed through the Exchange Rate Tariff.

Ohio Bell contends that, historically, only costs attributable to equipment extending as far as a customer's main station (here, to the PBX terminals) have been recovered through the Exchange Rate Tariff. It argues that the costs attributable to the in-place wire and cable are recovered through the General Exchange Tariff, as are the costs of other equipment necessary to provide extension service where chosen by a subscriber.

The commission found that the appellants failed to prove that Ohio Bell recovered its costs and an appropriate return for in-place wire and cable through charges established by the Exchange Rate Tariff. It thus rejected appellants' contention that Ohio Bell may not demand additional compensation for the use of the interior wire where subscribers replace Bell-provided extension service with privately-owned systems.

We are unable to find that the commission acted unlawfully or unreasonably in so finding. Rather, we believe that a contrary finding, i. e., that interior wire must be provided by Ohio Bell free of additional charge despite attachment of privately owned equipment at either end of such wiring, would be strained at best.

III.

Appellants argued before the commission that Ohio Bell's policy of refusing to quote a price for sale of in-place wire and cable until after the execution of a contract for purchase and installation of a privately owned system is unjust and unreasonable. Furthermore, they alleged that Ohio Bell's asking prices for sale of such wiring have been double and triple fair market value and, thus, unreasonably high.

Appellants claim that the commission erred in determining that it had no jurisdiction under R.C. 4905.26 to issue orders dealing with the sale of in-place wiring.

R.C. 4905.26, pursuant to which appellants filed their complaint before the commission, provides in part:

"Upon complaint in writing against any public utility by any person, firm, or corporation, * * * that any rate, fare, charge, toll, rental, schedule, classification, or service * * * rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, * * * if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing * * *."

R.C. 4905.37 provides, in part:

"Whenever the public utilities commission is of the opinion, after hearing had upon complaint, served as provided in section 4905.26 of the Revised Code, that the rules, regulations, measurements, or practices of any public utility with respect to its public service are unjust or unreasonable * * * the commission shall determine the regulations, practices and service to be installed, observed, used, and rendered, and shall fix and prescribe them by order to be served upon the public utility. * * *"

Ohio Bell claims, and the commission held, that commission jurisdiction under R.C. 4905.26 is contingent upon a complaint against a telephone company relating to telephone services. The commission found that sale of interior cable and wire is not subject to regulatory control through the complaint procedure, because, in the event...