Illinois Consol. Telephone Co. v. Illinois Commerce Com'n

• Decision Date: 24 January 1983
• Docket Number: No. 55665,55665
• Citation: 95 Ill.2d 142,447 N.E.2d 295,69 Ill.Dec. 78
• Parties: , 69 Ill.Dec. 78, 44 A.L.R.4th 205, 51 P.U.R.4th [PG125 ILLINOIS CONSOLIDATED TELEPHONE COMPANY, Appellee, v. The ILLINOIS COMMERCE COMMISSION, Appellant.
• Court: Illinois Supreme Court

Page 295

447 N.E.2d 295

95 Ill.2d 142, 69 Ill.Dec. 78, 44

A.L.R.4th 205, 51 P.U.R.4th [PG125

ILLINOIS CONSOLIDATED TELEPHONE COMPANY, Appellee, v. The ILLINOIS COMMERCE COMMISSION, Appellant.

No. 55665.

Supreme Court of Illinois.

Jan. 24, 1983.

Rehearing Denied April 8, 1983.

Tyrone C. Fahner, Atty. Gen., Chicago (Hercules F. Bolos, Sp. Asst. Atty. Gen., Chief Counsel--Ill. C.C., James E. Weging and Allen C. Wesolowski, Asst. Attys. Gen., Chicago, of counsel), for appellant.

Douglas G. Brown and Gary L. Smith, both of Douglas G. Brown, P.C., Springfield and Richard F. Record, Jr., of Craig & Craig, Mattoon, for appellee.

Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, Champaign (Dennis K. Muncy, Dennis L. Myers, Peggy C. Thompson, and David E. Worsley, Champaign, of counsel), for amicus curiae Rogers Radio Communication Services, Inc., Houser Communications, Inc., Tel-Illinois, Inc., and Aircall Communications, Inc.

Paul E. Freehling and Charles M. Chadd, both of Pope, Ballard, Shepard & Fowle, Ltd., Chicago, for amicus curiae American Paging, Inc. (of Illinois).

WARD, Justice:

We must consider on this appeal the authority of the Illinois Commerce Commission to regulate radio paging. The Commission granted Aircall Communications, Inc. (Aircall), a certificate of public convenience and necessity to operate a one-way radio paging business within an 18-mile radius of the village of Loxa in the Charleston-Mattoon area. Aircall proposed to provide tone-only and tone-and-voice paging services. At the time Aircall sought the certificate, Illinois Consolidated Telephone Company was already operating a paging service in the area involved pursuant to a certificate which had been granted earlier by the Commission. Illinois Consolidated intervened in the proceedings before the Commission and unsuccessfully opposed Aircall's application for a certificate. When the Commission granted Aircall a certificate, Illinois Consolidated appealed the decision to the circuit court of Coles County. The circuit court set aside the Commission's order and remanded the matter, on the ground that the Commission had failed to make specific findings on Illinois Consolidated's status under the "first in the field" doctrine, which protects a pioneer utility from competition in an area that it is adequately serving. The Commission appealed from that judgment, and Illinois Consolidated cross-appealed. On appeal, the Commission contended that it had no jurisdiction over radio paging. In its order granting the certificate to Aircall the Commission had found that it had jurisdiction; however, the Commission stated in the appellate court that it had reconsidered its position, and that it had concluded that it had erred in that respect. The appellate court held that the Commission does have jurisdiction over radio paging and affirmed the circuit court. (99 Ill.App.3d 462, 54 Ill.Dec. 670, 425 N.E.2d 535.) We granted a petition for leave to appeal to this court filed by the Commission under Rule 315 (73 Ill.2d R. 315).

Two questions are presented to us. First, whether the General Assembly has granted the Commission jurisdiction over the radio-paging industry. Second, if the Commission does have jurisdiction, should it have applied the "first in the field" doctrine.

The parties agree that the Commission has authority under State law to regulate radio paging only if this activity falls within the following provision of the Public Utilities Act (Ill.Rev.Stat.1979, ch. 111 2/3, par. 10.3(b)) (the Act):

" 'Public utility' means and includes every corporation, company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in:

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b. the transmission of telegraph or telephone messages between points within this State; * * *."

Thus, the first issue is whether persons that provide one-way radio paging own or operate equipment used "for or in connection with * * * the transmission of telegraph or telephone messages." We judge that they do not.

In the type of radio paging here, a subscriber is furnished with a receiver that is tuned to a particular radio frequency. A person desiring to communicate with the subscriber may phone the paging company, where either an employee or automatic equipment will send a radio signal to the subscriber. His receiver will emit a beep (in tone-only paging), or a beep followed by 12 second voice message (tone-and-voice paging). The subscriber then can place a telephone call to the person wishing to reach him. Also, there is a dual address variation in the tone-only service. That involves the use of two different tones, with each tone signaling the subscriber to call a particular source for information. In one-way radio paging, the paging device cannot be used to carry on a two-way conversation.

A paging service is granted the right to use a radio frequency by the Federal Communications Commission. Awards of radio frequencies are under exclusively Federal control. 47 U.S.C. sec. 301 (1976). Head v. New Mexico Board of Examiners in Optometry (1963), 374 U.S. 424, 430 n. 6, 83 S.Ct. 1759, 1763 n. 6, 10 L.Ed.2d 983, 988 n. 6; Schroeder v. Municipal Court (1977), 73 Cal.App.3d 841, 845-46, 141 Cal.Rptr. 85, 87, appeal dismissed (1978), 435 U.S. 990, 98 S.Ct. 1641, 56 L.Ed.2d 81.

In Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill.2d 205, 302 N.E.2d 334, this court considered whether the Commission had jurisdiction over cable television transmissions. The Commission had decided that the jurisdiction given it over telegraph and telephone services was sufficiently broad to include authority to regulate the transmission of television messages by cable. The Commission found:

"1. Cable television is a system of delivery of television signals over a grid of coaxial cables possessing a broad frequency bandwidth, which system can also deliver a variety of other video, audio, and data-grade signals. The system as a whole is properly termed 'broadband cable communications.'

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(b) There is at present a significant service overlap between the offerings of cable television and telephone companies * * *." 55 Ill.2d 205, 208, 302 N.E.2d 334.

This court did not agree that the Commission had the authority to regulate cable television. It judged that the Public Utility Act did not give the Commission jurisdiction over the entire telecommunications field. (55 Ill.2d 205, 221, 302 N.E.2d 334.) It said that the operative word in the relevant portion of the Act ("the transmission of telegraph or telephone messages") (Ill.Rev.Stat.1971, ch. 111 2/3, par. 10.3(b)) was not "messages" but "telephone" (55 Ill.2d 205, 213, 302 N.E.2d 334), and the words "telephone service" should be given "their plain and commonly ascribed meanings" (55 Ill.2d 205, 220, 302 N.E.2d 334). The court judged that cable television transmission was not within the meaning of the transmission of telephone or telegraph messages.

We consider that the paging here, which consists only of one-way radio signaling, does not fall within the Public Utilities Act and is not within the jurisdiction of the Commission. Giving the terms "telephone" and "telephone service" "their plain and commonly ascribed meanings" as directed in Illinois-Indiana Cable Television, one-way paging service simply is not "telephoning" and is not a "telephone service." The paging company does not itself transmit telephone messages. This court recently in People v. Gervasi (1982), 89 Ill.2d 522, 61 Ill.Dec. 515, 434 N.E.2d 1112, discussed the nature of the telephone, though in a context unrelated to the one involved here. The court stressed that the capacity for two-way communication by voice was an essential of the concept of the telephone. "The function of a telephone is to transmit and receive sound," it was observed. (89 Ill.2d 522, 527, 61 Ill.Dec. 515, 434 N.E.2d 1112.) This certainly described the telephone in its "plain and commonly ascribed meaning." A paging service's function does not fit this description of a telephone's purpose.

We would observe, too, that in reaching the decision in Illinois-Indiana Cable Television, the court relied importantly upon Television Transmission, Inc. v. Public Utilities Com. (1956), 47 Cal.2d 82, 301 P.2d 862, and Minnesota Microwave, Inc. v. Public Service Com. (1971), 291 Minn. 241, 190 N.W.2d 661. In both of those decisions, as this court recognized, the courts emphasized the one-way aspect of television when they distinguished television transmissions from telephone service. 55 Ill.2d 205, 210-11, 213, 302 N.E.2d 334.

We do not judge that because the radio signal is a result of a telephone call by a person seeking the subscriber, the radio-paging business operates equipment used "for or in connection with * * * the transmission of * * * telephone messages." (Ill.Rev.Stat.1979, ch. 111 2/3, par. 10.3.) The paging service is but a recipient of a telephone call, and the service simply notifies its subscriber of the call. The Commission, having reconsidered and concluded that Aircall is not a public utility, argues that the paging company is in reality only an answering service with sophisticated equipment. (The only unique aspect of the service offered by paging businesses, the Commission argued in the appellate court, involves the use of radio signals, and the use of radio frequencies is licensed federally.) It may be that paging companies facilitate communication by telephone by signaling persons who are away from telephones, but the statute does not make every business that facilitates telephone communication a public utility. The Commission...