General Tel. Co. of Upstate New York, Inc. v. Public Service Commission

• Decision Date: 13 July 1978
• Citation: 63 A.D.2d 93,406 N.Y.S.2d 909
• Parties: In the Matter of GENERAL TELEPHONE COMPANY OF UPSTATE NEW YORK, INC., Petitioner, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 909

406 N.Y.S.2d 909

63 A.D.2d 93

In the Matter of GENERAL TELEPHONE COMPANY OF UPSTATE NEW

YORK, INC., Petitioner, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent.

Supreme Court, Appellate Division,Third Department.

July 13, 1978.

Edward F. Skoda, Johnstown, for petitioner.

Peter H. Schiff, Albany (Howard J. Read, Albany, of counsel), for respondent.

Herman B. Noll, Syracuse, for Niagara Mohawk Power Corp., amicus curiae.

Donal F. McCarthy, New York City, for Consolidated Edison, amicus curiae.

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and MIKOLL, JJ.

STALEY, Justice.

On March 26, 1973, by a petition for investigation, New York State Cable Association requested the New York State Commission on Cable Television (hereinafter referred to as CCTV) to undertake an investigation of a number of complaints pertaining to pole attachments and related agreements entered into between utility companies and Community Antennae Television Systems (hereinafter referred to as CATV). The then new commission, established in 1972 by the enactment of article 28 of the Executive Law (L.1972, ch. 466), had been created as a result of a stated need for:

* * * (a) state agency to develop a state telecommunications policy; to promote the rapid development of the cable television industry responsive to community and public interest and consonant with policies, regulations and statutes of the federal government * * *. (Executive Law, § 811.)

Comments relative to the petition for investigation were filed on or before May 10, 1973 by several telephone and power utilities including petitioner herein, General Telephone Company of Upstate New York, Inc.

Upon review of the petition for investigation and responses thereto, it was decided that both the Public Service Commission and the CCTV had an interest in the subject matter and each should conduct an investigation into the practices of utilities relating to pole attachment agreements entered into with CATV companies. It was further decided that the investigations so ordered would proceed on a common record to be heard by a single hearing examiner. The Public Service Commission's order of investigation was issued on September 3, 1973, and on September 14, 1973, the CCTV issued its order.

Petitioner and other utilities moved to dismiss the proceeding on the basis of lack of jurisdiction over the subject matter. Hearings were held from December 18, 1973 until October 8, 1975 when the record was closed. Prior to the close of the record, the hearing examiner directed the parties to file separate briefs with respect to the jurisdiction of the CCTV and the Public Service Commission over pole attachments and related agreements. Opening briefs on jurisdiction were filed on March 7, 1975, and reply briefs on April 20, 1975.

On July 21, 1976, the recommended decision of the hearing examiner was issued. It was his conclusion that neither the CCTV, nor the Public Service Commission had jurisdiction over pole attachment and related agreements entered into between utilities and operators of CATV.

On February 28, 1977, the Public Service Commission issued its opinion and order in the proceeding holding that the Public Service Commission had jurisdiction over pole attachment and related agreements. The Commission ordered each electric and telephone corporation doing business in this State to file a proposed pole attachment agreement which is consistent with its opinion and order and which the utility intends to offer on a nondiscriminatory basis to all cable television operators legally entitled to do business within its service territory. It also ordered further hearings to examine into the rates which utilities should be allowed to charge for pole attachment rentals.

Petitioner and others petitioned for a rehearing, and, on August 26, 1977, the Public Service Commission issued an order which continued the prior holding of the Public Service Commission asserting jurisdiction over pole attachment agreements, and modified its prior order in certain respects not relevant to this proceeding.

The main issue in this proceeding is whether the Public Service Commission has the authority to assume jurisdiction to regulate the use of utility pole space by cable television companies.

The Public Service Law provides that the Public Service Commission's jurisdiction extends to electric plants, which by definition includes poles, and to telephone lines, which by definition includes poles, and to corporations owning, leasing or operating the same (Public Service Law § 5, subd. 1, pars. (b), (d); § 2, subds. 12, 18). The service provided by such companies must be adequate and the rates just and reasonable (Public Service Law, §§ 65, 91). The companies may not grant any person, corporation or locality any undue preference, nor subject any person, corporation or locality to any unreasonable disadvantage (Public Service Law, § 65, subd. 3; §...