Gamewell Co. v. Public Service Commission of State of N.Y.

• Decision Date: 17 June 1959
• Parties: , 29 P.U.R.3d 539 Application of the GAMEWELL COMPANY, Petitioner, for Orders Pursuant to the Provision of Article 78 of the New York Civil Practice Act, v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Respondent, and NEW YORK TELEPHONE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 107

188 N.Y.S.2d 107

8 A.D.2d 232, 29 P.U.R.3d 539

Application of the GAMEWELL COMPANY, Petitioner, for Orders Pursuant to the Provision of Article 78 of the New York Civil Practice Act, v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, Respondent and NEW YORK TELEPHONE COMPANY, Respondent.

Supreme Court, Appellate Division, Third Department.

June 17, 1959.

Whalen, McNamee, Creble & Nichols, Albany (Jerome Preston, Jr., Boston, Mass., Frank A. McNamee, Albany, and Lawrence A. Sullivan, Boston, Mass., of counsel), for petitioner.

Kent H. Brown, Albany (George H. Kenny and Charles R. Gibson, Albany, of counsel), for respondent Public Service Commission.

G. Wallace Bates, Eric B. Nelson, New York City, and Henry J. Friendly, New York City (Edward L. Friedman, Jr., New York City, of counsel), for respondent New York Telephone Company.

Before FOSTER, P. J., and BERGAN, GIBSON, HERLIHY and REYNOLDS, JJ.

GIBSON, Justice.

This article 78 proceeding presents the question whether the Public Service Commission was correct in determining that respondent telephone company's business of furnishing systems for reporting of emergency alarms is properly subject to regulation.

On November 1, 1956, the telephone company filed with the Public Service Commission a tariff entitled 'Private Branch Exchange Service--F. Telephone Switchboard System for Voice Reporting of Fire, Police and Other Emergency Alarms'. The system is offered for use only to municipalities and other governmental agencies. Petitioner, a business corporation manufacturing emergency alarm reporting equipment for sale or lease to its customers, protested the acceptance of the filing by a letter, treated by the commission as a complaint which it then proceeded to hear. Thus there exists the situation of a utility seeking to be regulated in a debatable area and of a company, not itself subject to regulation, protesting the imposition of that restraint upon its competitor. Despite occasional and somewhat ingenuous disclaimer, the explanation is doubtless to be found in the provisions of a consent decree in an antitrust case which, in general, enjoins American Telephone & Telegraph Company, and its subsidiaries (of which the respondent company is one) from engaging 'in any business other than the furnishing of common carrier communications services'; that term including 'any communications service or facility, other than message telegram service, the charges for which are or become subject to regulation under existing or future laws of any state'. (Final Judgment, United States of America v. Western Elec. Co. et al., U.S.D.C., D.N.J., C.A.No. 17-49, Jan. 24, 1956.) Neither party's motive seems important, in this case at least, and we do not consider that the Federal judgment is properly before us for any purpose.

Upon the hearing before the commission, an installation in the city of Syracuse was described in some detail as typical of the systems comprehended by the tariff. The Syracuse installation includes some 320 telephones--the standard telephone company handsets--placed in unlocked boxes on streets and in public places throughout the city, for use by policemen, firemen and other public employees, both for routine and emergency reporting, and by members of the general public for the latter purpose. These call boxes are connected by telephone lines (passing through the streets as part of the company's cable plant facilities) to a private branch exchange switchboard furnished by the telephone company but located on premises of the city and operated by city employees. The switchboard is connected by serveral central office trunk lines to the company's general exchange system through which, of course, any telephone subscriber may be reached; and, in addition, private tie lines provide interconnection with particular telephone stations, including those of the police department, the local power and light company, the State fire marshal and others. Accordingly, a report by voice from an outdoor telephone might be attended to at the switchboard or switched to an appropriate city department or to the telephone of any private subscriber. Thus, a policeman reporting an...