Mississippi Public Service Commission v. AAA Anserphone, Inc.

• Decision Date: 09 May 1979
• Docket Number: No. 51118,51118
• Parties: MISSISSIPPI PUBLIC SERVICE COMMISSION and Ansa-Phone of Pearl, Inc. v. AAA ANSERPHONE, INC., Jackson.
• Court: Mississippi Supreme Court

Page 259

372 So.2d 259

MISSISSIPPI PUBLIC SERVICE COMMISSION and Ansa-Phone of Pearl, Inc. v. AAA ANSERPHONE, INC., Jackson.

No. 51118.

Supreme Court of Mississippi.

May 9, 1979.

Thomas, Price, Alston, Jones & Davis, John H. Price, Jr., A. F. Summer, Atty. Gen., by Bennett E. Smith, Asst. Atty. Gen., Jackson, for appellant.

Perry, Crockett, Morrison & Starling, Fred W. Johnson, Jr., Jackson, for appellee.

Before SMITH, SUGG and COFER, JJ.

COFER, Justice, for the Court:

Ansa-Phone of Pearl, Incorporated (Ansa-Phone) applied to the Mississippi Public Service Commission (Commission) for a certificate of public convenience and necessity to "establish, maintain and operate a domestic public land mobile and portable radio service which will be engaged in the transmission of messages by radio as a public communication service for compensation or hire between a base transmission and receiving station to mobile and portable units and from such mobile units to said base station." Ansa-Phone proposed in its application to "render a new radio telephone common carrier, 150 megacycle, fully automatic radio service from a base station located at the approximate geographic center of Pearl," in an area encompassed by a 35-mile radius from the proposed base station. From a decision favorable to the applicant Ansa-Phone, AAA Anserphone, Incorporated, Jackson (AAA) which resisted the application at the commission hearing, appealed to the Chancery Court of the First Judicial District of Hinds County. (South Central Bell Telephone Company had filed protest to protect its authority already certificated, but did not participated in the hearing. In its order, the Commission retained to South Central Bell Telephone Company rights held under certificates of public convenience and necessity referred to in Chapter 372, Sec. 1 D(3), Laws of Mississippi, of 1956, including the furnishing of mobile and portable radio-telephone service and authorized it "to conduct all the aforesaid operations and make extensions thereto within all the territory embraced within its certificated area in Mississippi, including the area encompassed in the present petition." The said section 1 D(3), Chapter 372, Laws of 1956, reads as follows:

(3) The transmission, conveyance or reception of any message over wire, or by radio, or otherwise, of writing, signs, signals, pictures and sounds of all kinds by or for the public, where such service is offered to the public for compensation; and the furnishing, or the furnishing and maintenance, of equipment or facilities to the public, for compensation, for use as a private communications system or part thereof; provided, that no persons or corporations not otherwise a public utility within the meaning of this act shall be deemed such solely because of engaging in this state in the furnishing, for private use as last aforementioned; and provided further that nothing in this act shall be construed to apply to television stations, radio stations or community television antenna services.)

The chancery court reversed and set aside the Commission's order and Ansa-Phone and the Commission have appealed therefrom to this Court.

Appellants Ansa-Phone and the Commission assigned as errors (1) the chancellor's finding that the operations for which the commission had granted authority will result in a duplication and waste and that it violates the "existing facility rule," (2) the chancellor's holding that AAA was rendering adequate service in the area sought to be served by Ansa-Phone; (3) the chancellor's failure to hold that the Commission's order was supported by substantial evidence and was in accordance with the manifest weight of the evidence; (4) the chancellor's holding that the Commission's findings of fact do not comply with the statute, Mississippi Code Annotated, section 77-3-59, (1972); (5) if correct in the next preceding holding, the chancellor erred in not remanding the case for more detailed findings in support of its order; and (6) the chancellor's reversing and setting aside of the Commission's order.

It probably should be noted, at the outset, that Ansa-Phone's proposed operations are no different in type from those already certificated to AAA, insofar as the area already being served by AAA is concerned. Whether there is a difference in the quality of these services as rendered by AAA and as proposed to be rendered by Ansa-Phone is in conflict.

The most troublesome of these assignments of error is the first set out above that Ansa-Phone's operations will result in duplication and in waste, and will violate the "existing facility rule."

The "existing facility rule," frequently referred to as the "Tri-State Transit rule," was first enunciated in Mississippi by the decision of this Court in Tri-State Transit Co. of La., Incorporated v. Dixie Greyhound Lines, 197 Miss. 37, 19 So.2d 441 (1944), wherein it was said:

The rule is, and we find no authority to the contrary, that a certificate should not be granted where there is existing adequate service over the route applied for, and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional service as may be required. (197 Miss. at 48, 19 So.2d at 444).

The opinion in Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So.2d 739 (1961), lists a number of decisions upholding the "existing facility rule," as to motor carriers, and then calls attention to the case of Mississippi Power & Light Co. v. Town of Coldwater, 234 Miss. 615, 106 So.2d 375 (1958), to illustrate the Supreme Court's view that the same rule applies to electric utilities. It then, proceeded to apply the rule and refused to grant to Mississippi Power & Light Company a certificate that would infringe upon the rights of Capital Electric Power Association to serve the power needs of an area which Capital was authorized to serve. It held:

An existing utility within the certificated area has the right and duty to provide the service, and must be given that opportunity. If it fails, the commission can award another franchise to another utility. (240 Miss. at 151, 125 So.2d at 743).

In Movers Conference of Mississippi v. Long, 243 Miss. 214, 137 So.2d 925 (1962), the Commission granted to appellee (as authority in addition to what it had) right to transport household furniture from any point within Mississippi to any point in Jackson County. This Court said:

The question is whether the record contained substantial testimony in support of the order of the Mississippi Public Service Commission granting appellee additional rights under his certificate. We believe that there is substantial evidence to justify the ruling of the Commission. Several public officials of Jackson County testified to the effect that Jackson County was one of the fastest growing counties in the State of Mississippi and that there had been a rapid growth there over the past ten or twelve years; there were a number of new industries that had moved to the County and established plants; there were from six to eight listed; within the last four years the qualified electors had increased from 8,000 to 13,000; that the 1940 census was 20,000 and the 1950 census showed a population of 31,000; and there was testimony to the effect that the Mississippi University census of 1958 showed the population of the County to be around 59,000. The testimony was to the effect that the fluctuation of workers in the area created quite a demand for moving. The appellee had been requested on several occasions to transport furniture from outside of Jackson County into the county and the appellee declined, due to the fact that he did not have the authority. (243 Miss. at 217-218, 137 So.2d at 926-927).

Taking note of the "existing facility rule," the fact that it has been consistently followed as to operators over regular routes, and that, in the Long case next above, it was not observed, the Supreme Court, in Morgan Drive-A-Way v. Lee, 243 Miss. 891, 139 So.2d 863 (1962), had before it applications of Lee for certificate to operate as a restricted common carrier by motor vehicle, transporting mobile homes between points in Mississippi over irregular routes and over all highways and roads therein.

Declining to apply the "Tri-State Transit Rule", this Court first found the granting of the certificate was supported by substantial evidence:

The appellants claim there was no substantial evidence supporting the order of the Commission. The Commission heard evidence as to the estimated number of house trailers at various points in Mississippi, and as to the percentage thereof that were required to be moved monthly by vehicles other than the automobile of the owner. It also heard proof as to the increasing use of house trailers, the increased size thereof, and the fact that trailers were being made longer and wider so that many came to that size where the law prohibited the moving of same by ordinary motor vehicles. It heard testimony as to transient workers, particularly men working on oil rigs, and of the fact that when they are required to move they had to do so speedily; that there were three other carriers holding certificates of this nature, one with headquarters at Biloxi, one at Jackson and one at Laurel; and the number and availability of the vehicles owned by these carriers was shown. They also heard testimony that on many occasions people desiring to be moved would be advised by those in the business that they could not move them for two or three days or more; that at some of the stations, the carriers had only one or two vehicles to answer calls and when these were away it was necessary to either wait for their return or call in vehicles from surrounding states. We think there was substantial evidence to support the finding of the Commission. (243 Miss. at 896, 139 So.2d at 864).

It was then said:

In the present case there were only three authorized carriers of...