Petition of Telesystems, Corp.

• Decision Date: 01 November 1983
• Docket Number: No. 82-384,82-384
• Parties: Petition of TELESYSTEMS, CORP. d/b/a Green Mountain TV, Small Cities Cable Television, Inc. and G.O. Enterprises, Inc.
• Court: Vermont Supreme Court

Page 1169

469 A.2d 1169

143 Vt. 504

Petition of TELESYSTEMS, CORP. d/b/a Green Mountain TV,

Small Cities Cable Television, Inc. and G.O.

Enterprises, Inc.

No. 82-384.

Supreme Court of Vermont.

Nov. 1, 1983.

Samuel C. FitzPatrick, Montpelier, for petitioner-appellant, G.O. Enterprises, Inc.

Samuelson, Portnow, Miller & Eggleston, Ltd. and Michael H. Lipson, Burlington, of counsel, for petitioner-appellee, Small Cities Cable Television, Inc.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

PECK, Justice.

Appellant, G.O. Enterprises, Inc., was one of four cable television companies competing for Public Service Board certification to serve Shelburne and Vergennes, Vermont. It appeals an order of the Board which rejected a hearing examiner's recommendation that it be so certified.

On appeal, appellant contends (1) that the Board erred in making findings and conclusions of its own that were inconsistent with those made by the hearing examiner, and (2) that the Board's findings were unsupported by the evidence and resulted from policies reached by improper rule making. For reasons set forth below, we find that the Board's actions were within its statutory authority, its findings were supported by the evidence, and its statement of policy was a ratemaking decision limited in application to this case only. Accordingly, we affirm.

This action began as a petition to the Public Service Board (Board) by Green Mountain Cable Television, Inc. (Green Mountain) for a permanent certificate of public good to provide cable TV service to parts of Shelburne, Vermont. 30 V.S.A. § 503. It was then serving that area under a previously granted interim certificate. A hearing on the matter was held, at which another cable company, EMCO CATV, Inc. (EMCO), appeared and indicated its intention to file a competing petition for the same area. The hearing was continued, during which time a third cable company, G.O. Enterprises, Inc. (G.O.), filed a petition for a certificate to serve the City of Vergennes. EMCO then filed its petition. Besides Shelburne, EMCO also wished to serve Charlotte, Ferrisburg, and Vergennes. Thereafter, a fourth cable company, Small Cities Cable Television, Inc. (Small Cities), filed a petition to serve Shelburne and Vergennes. Upon notice to the parties, the Board consolidated the four applications for a joint hearing.

Prior to the hearing, EMCO withdrew its application, leaving only Green Mountain, Small Cities, and G.O. as parties. At this point, the competing applications were Small Cities and Green Mountain for Shelburne, and Small Cities and G.O. for Vergennes.

As required by 30 V.S.A. § 231, hearings were convened in Shelburne, where all three parties participated, and in Vergennes, from which Green Mountain was absent. After consideration of the applications and evidence submitted at the hearings, the Board's hearing examiner made extensive findings of fact. He then applied these findings to a set of eight criteria for the certification of cable television companies that had been announced by the Board in a previous decision. ^*

After consideration of those standards, the examiner recommended that Green Mountain be granted a permanent certificate for that part of Shelburne it was presently serving, and that G.O. be allowed to serve Vergennes and file an application to serve the remainder of Shelburne. Small Cities filed exceptions to those findings and requested an oral hearing before the full Board.

Following the hearing, and on review of the record, the Board made additional findings and conclusions. It then rejected the examiner's recommendations and all of his findings that were inconsistent with its own. The Board ordered that Small Cities be awarded a certificate to serve Vergennes and all of Shelburne. In addition, Green Mountain was directed to sell all of its cable television equipment currently in place at Shelburne to Small Cities to effectuate the order.

The ousted competitor, G.O., appeals, alleging various points of error in the Board's findings and conclusions. Green Mountain did not join in the appeal.

I.

Appellant's claim that the Board erred in making findings of its own in place of contradictory findings by the examiner is without merit.

The Board may appoint any of its members, officers or other employees to hear a case individually. 30 V.S.A. § 8. The appointed hearing examiner must then report his findings to the Board. Id. It is for a majority of the Board, however, to render final judgment on those findings. Id. The disposition recommended by a single examiner is not binding on the Board.

[I]t is a proper and expected function under its legislative mandate for the Board to examine the record, take additional evidence and, where required, rework the findings in the light of its own special competence.... The Board, having examined the record and the evidence, can proceed to make its own findings based on all the evidence in the case, without a special hearing for the purpose, and without being restrained by contrary conclusions or differing views of controverted facts by its examiner.

Vermont Electric Power Co. v. Bandel, 135 Vt. 141, 147, 375 A.2d 975, 980 (1977). In the instant case, the Board reviewed the record developed below, took additional evidence at a subsequent hearing and rendered its decision accordingly. Having acted within its statutory authority in this respect, it committed no error.

II.

We are not persuaded by appellant's second contention that the Board's findings and conclusions were unsupported by the evidence and tainted by improper rule making.

The hearing examiner compared the evidence presented by the parties with respect to each of the Board's certification criteria. See supra, note 1. Based on that comparison, the examiner concluded that G.O. and Green Mountain had the superior proposals and should be awarded the appropriate certificates.

Small Cities asked for, and was granted, a hearing before the full Board at which it disputed the examiner's conclusions and offered additional evidence in support of its petition. It is clear that the Board felt the examiner had neglected to apply the criteria in their complete form, which led to misplaced emphasis on certain facts. The Board made its own comparison of the applications in the manner it had originally intended. In so doing, it made the following findings: (1) neither applicant was superior in financial stability or soundness; (2) Small Cities offered more channels than did G.O.; (3) both applicants could complete construction of their systems by a date certain; (4) both applicants had sufficient business experience to manage their proposed systems; (5) Small Cities proposed the same rate in Shelburne as Green Mountain, and a lower rate than G.O. for Vergennes, and the same rate charged by Green Mountain for Shelburne; (6) there is no significant difference in customer service capabilities between the two applicants; (7) Small Cities...