Public Utilities Com'n Declaratory Ruling (F-3436), Matter of, F-3436

• Citation: 364 N.W.2d 124
• Decision Date: 06 March 1985
• Docket Number: F-3436,Nos. 14652,14653 and 14664,s. 14652
• Parties: In the Matter of the PUBLIC UTILITIES COMMISSION DECLARATORY RULING ().
• Court: Supreme Court of South Dakota

Page 124

364 N.W.2d 124

In the Matter of the PUBLIC UTILITIES COMMISSION DECLARATORY

RULING (F-3436).

Nos. 14652, 14653 and 14664.

Supreme Court of South Dakota.

Argued Jan. 9, 1985.

Decided March 6, 1985.

Mary L. Vanderpan, Asst. Atty. Gen., Pierre, for appellant Public Utilities Com'n of the State of S.D.; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Gene R. Bushnell of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for appellants Electro-Craft, Inc., Dakota Radio Paging, Pierre Radio Paging Mitchell Radio Paging, Lake Area Paging, and MT Systems, Inc.

Robert B. Frieberg of Frieberg, Peterson & Travis, Beresford, for appellees cities of Beresford and Brookings, S.D.

Brian B. Meyer of Meyer & Rogers, Onida, for appellee Golden West Telecommunications Co-op., Inc.

WUEST, Acting Justice.

This is an appeal from a decision of the Sixth Circuit Court affirming in part and reversing in part a declaratory ruling issued by the South Dakota Public Utilities Commission (Commission). We affirm in part and reverse in part.

A petition for declaratory ruling by Commission was filed by appellant Electro-Craft, Inc. (Electro-Craft), a radio common carrier which has been authorized since 1966 to provide radio services to the public in the Rapid City area and other areas in western South Dakota. Electro-Craft sought a declaratory ruling by Commission, pursuant to SDCL 1-26-15, as to whether or not appellee Golden West Telecommunications Cooperative, Inc. (Golden West) could legally provide radio-paging services to the public within Electro-Craft's exclusive service territory without obtaining a certificate of public convenience and necessity from Commission. Golden West, a telephone cooperative, began offering paging services to the public in 1982 in Hot Springs and part of Fall River County, South Dakota, without a certificate of public convenience and necessity. This area is within the telephone service authorized by Commission for Golden West, as a telephone company. It is also within the area served with radio-paging services by Electro-Craft, as an authorized radio common carrier by Commission. Golden West proposed to offer radio-paging services within the Rapid City area, which is an area outside of the telephone service area of Golden West. This area is within the telephone service area of the Northwestern Bell Telephone Company (N.W. Bell). The Rapid City area has been served with radio-paging services by Electro-Craft pursuant to radio common carrier authority from Commission.

Golden West has interconnected with its own public switch telephone network in connection with its radio-paging services in the Hot Springs/Fall River County area. In the services contemplated for the Rapid City area, Golden West would be interconnecting with the public switch telephone network of N.W. Bell.

By its declaratory ruling dated December 8, 1983, Commission ruled that Golden West was subject to its regulatory jurisdiction inasmuch as Golden West was going to provide radio-paging services in an area entirely within the exclusive service area of a radio common carrier previously authorized and certified by Commission.

Golden West appealed this ruling to the Sixth Judicial Circuit Court. Because they have municipal telephone systems, the cities of Beresford and Brookings, South Dakota, were allowed by the trial court to intervene. The trial court upheld the exercise of regulatory jurisdiction by Commission over public radio paging. The trial court, however, held that Golden West, as a telephone cooperative, and the cities of Beresford and Brookings, as municipal telephone companies, were exempt from such regulatory jurisdiction because of the provisions of SDCL 49-31-5.1.

This appeal presents questions of law; consequently, the decisions of the administrative agency and the circuit court are fully reviewable. Johnson v. Skelly Oil Company, 359 N.W.2d 130 (S.D.1984); Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981).

Commission has been regulating and issuing permits for radio common carrier paging services to the public via interconnection with the land-line public switch telephone system since 1966 when it issued a certificate of public convenience and necessity to appellee Dakota Radio Paging of Sioux Falls, South Dakota. Commission's reasoning for regulatory action was set forth in its report dated May 31, 1966, at page 2, as follows:

This Commission does not consider that our regulatory authority extends to radio communication service, when confined strictly to the air waves. However, when a company proposes to offer a radio service to be interconnected with a land-line telephone system, such company becomes a common carrier of telephone messages (Section 52.1301 SDC 1939) and subject to regulation as such.

Section 52.1301 of the 1939 South Dakota Code is now SDCL 49-31-1 and SDCL 49-31-2, which provide:

49-31-1. The terms "telegraph company" and "telephone company," as used in this chapter, mean all corporations, associations, and individuals, their trustees, lessees, and receivers, that now or hereafter may own, operate, manage, or control any telegraph or telephone line, system, or exchange, or any part of any telegraph or telephone line, system, or exchange, in this state.

* * *

49-31-2. All telegraph and telephone companies as defined by Sec. 49-31-1 are hereby declared to be common carriers, and all laws, so far as applicable, now in force or hereafter enacted regulating common carriers, shall apply with equal force and effect to all such telegraph and telephone companies.

SDCL 49-2-2 provides:

Everyone who offers to the public to carry messages is a common carrier.

Based upon the foregoing statutes, the...