Radiofone, Inc. v. Louisiana Public Service Com'n
| Decision Date | 22 January 1991 |
| Docket Number | 90-CA-1724,Nos. 90-CA-1723,s. 90-CA-1723 |
| Parties | RADIOFONE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION. LOUISIANA ASSOCIATION OF RADIO COMMON CARRIERS v. LOUISIANA PUBLIC SERVICE COMMISSION. 573 So.2d 460 |
| Court | Louisiana Supreme Court |
W. Glenn Burns, Margaret Silverstein, Monroe & Lemann, New Orleans, for Groom Enterprises, Inc. plaintiff-appellant.
Ashton R. Hardy, Regina Wedig, New Orleans, James L. Ellis, Baton Rouge, Robert Rieger, Carlos G. Spaht, Baton Rouge, for appellee.
We must determine whether Groome Enterprises, Inc. (Groome) made a sufficient showing under the radio common carrier statute, LSA-R.S. 45:1503(C), to warrant the grant of a certificate of public convenience and necessity by the Louisiana Public Service Commission (Commission). The applicant, John William Groome, sought a certificate to enable his company to operate a paging service as a radio common carrier in several parishes in which Radiofone is the existing common carrier. The Commission granted the certificate despite the Hearing Examiner's recommendations to deny after each of the two hearings on the matter. 1
Appeals were taken by Radiofone and the Louisiana Association of Radio Common Carriers in the Nineteenth Judical District Court. The district court reversed the Commission's order, concluding that the evidence presented by Groome was not sufficient to meet the statutory requirements of the radio common carrier statute.
Groome appealed directly to this Court pursuant to Article IV, Sec. 21(E) of the Louisiana Constitution of 1974. The Commission chose not to appeal the district court's reversal of their order. After a review of the record, we conclude that the district court acted properly in reversing the Commission's order.
Where there is an existing radio common carrier, entry of a competing carrier is governed by La.R.S. 45:1503(C):
The commission shall not grant a certificate for a proposed radio common carrier operation or extension thereof which will be in competition with or duplication of any other radio common carrier unless it shall first determine that the existing service is inadequate to meet the reasonable needs of the public and that the person operating the same is unable to or refuses or neglects after hearing on reasonable notice to provide reasonable adequate service.
La.Rev.Stat.Ann. Sec. 45:1503(C) (West 1982).
Radiofone is the existing radio common carrier in Groome's proposed service areas of Orleans, Jefferson, St. Bernard, St. Charles, Plaquemine, Terrebonne and St. Tammany Parishes. Therefore, the Commission is authorized to grant a competing certificate to Groome only if Groome carries the burden of proving that 1) Radiofone's service is inadequate, and 2) that Radiofone is unable, refuses, or neglects, after hearing, to provide reasonable adequate service.
The standard of review of Commission orders is well settled. Although Commission orders are generally accorded great weight, they must be overturned if arbitrary, capricious, and not reasonably based upon the evidence presented. See, e.g., Southern Message Service v. Louisiana Pub. Serv. Comm'n, 554 So.2d 47, 56 (La.1989) (Southern Message IV ); Southern Message Service v. Louisiana Pub. Serv. Comm'n, 426 So.2d 606, 607 (La.1983) (Southern Message II ); Communications Indus., Inc. v. Louisiana Pub. Serv. Comm'n, 260 La. 1, 254 So.2d 613 (La.1971).
The district court's finding, with which we are in agreement, was that the applicant's showing before the Commission failed in both respects. The evidence did not prove inadequate service, much less that Radiofone has been unable, refuses, or neglects to provide reasonable adequate service. The evidence is to the contrary. 2 The Commission's only finding relative to inadequacy of service had to do with Groome's offering...
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