RAM Broadcasting of Colorado, Inc. v. Public Utilities Com'n, 84SA225

• Citation: 702 P.2d 746
• Decision Date: 08 July 1985
• Docket Number: No. 84SA225,84SA225
• Parties: RAM BROADCASTING OF COLORADO, INC., a Colorado corporation, Petitioner-Appellant, v. PUBLIC UTILITIES COMMISSION of the State of Colorado and Commissioners Edythe S. Miller, Daniel E. Muse and Andra Schmidt, Contact-Colorado Springs, Inc. and its successor, Contact Communications, Inc., Respondents-Appellees.
• Court: Colorado Supreme Court

Page 746

702 P.2d 746

RAM BROADCASTING OF COLORADO, INC., a Colorado corporation, Petitioner-Appellant, v. PUBLIC UTILITIES COMMISSION of the State of Colorado and Commissioners Edythe S. Miller, Daniel E. Muse and Andra

Schmidt, Contact-Colorado Springs, Inc. and its successor,

Contact Communications, Inc., Respondents-Appellees.

No. 84SA225.

Supreme Court of Colorado,

En Banc.

July 8, 1985.

William Andrew Wilson, William Andrew Wilson, P.C., Denver, Martin J. Schwartz, Rubin Baum Levin Constant & Friedman, New York City, for petitioner-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mark Bender, Asst. Atty. Gen., Regulatory Law Section, Denver, for the Public Utilities Com'n of Colorado and Commissioners thereof.

Jeffrey C. Pond, Cohen, Brame & Smith, Denver, for Contact Communications, Inc.

DUBOFSKY, Justice.

RAM Broadcasting of Colorado, Inc. (RAM) appeals a Denver district court order affirming the denial by the Public Utilities Commission (PUC) of RAM's application for a certificate of public convenience and necessity ¹ to operate a one-way interconnected paging service ² in the Colorado Springs and Pueblo metropolitan areas, and in a wide area extending along the I-25 corridor from Denver to Pueblo. We affirm.

RAM filed its application with the PUC in May 1980, asserting that there was an unmet need for its paging services in Pueblo and Colorado Springs, and along the I-25 corridor. Contact-Colorado Springs, Inc. (Contact), ³ a radio common carrier that operates one-way paging services in Colorado Springs, filed the only protest to RAM's application. Contact maintained that it and other existing carriers could meet any need for interconnected paging services in the area outlined in RAM's application. After several postponements, the hearing on RAM's application began September 28, 1981, and continued intermittently until March 9, 1982. In addition to RAM corporate witnesses who testified that the company had the financial and engineering ability to provide the services proposed in its application, RAM presented sixty-six public witnesses who testified about the inadequacy of existing paging service and their need for the services proposed by RAM.

In the past, all one-way paging systems in Colorado have been "tone-only," which gives a paging customer the limited information available from a one- or two-tone signal, or "tone-voice," which allows the paging customer to receive a short verbal message in addition to the tone signal. RAM proposed to offer its customers the new technology of a "digital" paging system, allowing the paging customer to receive on a pager with a lighted window a ten-digit display, typically a telephone number and a three-digit coded message. RAM's public witnesses expressed their desire for digital paging and their dissatisfaction with certain inherent drawbacks in tone-only and tone-voice paging, and complained of the inadequacy of paging services presently available in Colorado Springs and Pueblo and along the I-25 corridor from Denver to Pueblo. Contact presented testimony that Contact and Radio Contact Corporation were supplying or would soon supply digital display paging in Pueblo, Colorado Springs, and the area in between.

The hearing examiner recommended that the PUC deny all portions of RAM's application. RAM filed exceptions to the recommended decision, and the PUC denied the exceptions, adopting the hearing examiner's recommended decision in full. RAM requested review of the PUC decision in Denver district court under section 40-6-115, 17 C.R.S. (1984), which provides statutory authority for review of PUC decisions under a writ of certiorari. The district court affirmed the PUC's decision in all respects.

RAM now appeals the district court decision, maintaining that Contact did not have standing to protest any portion of RAM's application other than the request for authority to operate in Colorado Springs and that the PUC acted arbitrarily and capriciously in denying RAM's application. Because the resolution of the standing question affects the rest of the case, we address that issue first.

I.

RAM objected to Contact's participation throughout the proceedings except to the extent that Contact protested RAM's request for authority to operate in Colorado Springs. RAM asserts that Contact had no standing to protest the other portions of RAM's application because Contact operated only in Colorado Springs and therefore had no interest that could be affected by RAM's application to operate in Pueblo or in a wide area along the Front Range. In support of its contention, RAM quotes the Colorado rule on standing first enunciated in Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). Standing to pursue a lawsuit in Colorado depends upon whether the plaintiff has suffered an actual injury and whether the injury suffered is to a legally protected or cognizable interest. Id.; Denver Center for the Performing Arts v. Briggs, 696 P.2d 299, 304 (Colo.1985); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982 (Colo.1981); Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980). However, standing to participate in a PUC proceeding, delineated by statute and rule, differs from standing to bring a lawsuit.

Section 40-6-109, 17 C.R.S. (1984), provides that in hearings before the PUC,

such persons, firms, or corporations as the commission may allow to intervene, and such persons, firms, or corporations as will be interested in or affected by any rule or order that may be made by the commission in such proceeding, and who shall become parties to the proceeding, shall be entitled to be heard, examine and cross-examine witnesses, and introduce evidence.

This provision creates two classes that may participate in PUC proceedings: those who may intervene as of right and those whom the PUC permits to intervene. DeLue v. Public Utilities Commission, 169 Colo. 159, 454 P.2d 939, cert. denied, 396 U.S. 956, 90 S.Ct. 428, 24 L.Ed.2d 421 (1969). Under the statute, the PUC has promulgated rule 7A.2., 4 C.C.R. 723-1 (1980), limiting persons whom it will permit to intervene to those having "a substantial personal interest in the subject matter of the proceedings [whose] intervention will not unduly broaden the issues."

RAM filed a single application with the PUC for a certificate of public convenience and necessity that would extend to the three areas designated in its application. RAM's engineering consultant testified that he would have to rework completely the engineering for the proposed paging system if only a portion of RAM's application were granted, implying that the application was for a single, extensive paging system. Contact's interest would be affected by a PUC grant of RAM's application, because a grant would allow additional competition for the paging business in Colorado Springs. Therefore, Contact was an intervenor as of right in the entire hearing held on RAM's application. Even if Contact were not an intervenor as of right, however, the PUC granted Contact permission to participate in the proceeding, and Contact was entitled to participate as a permissive intervenor throughout the hearing under the statute and the rule promulgated by the PUC. We conclude that Contact had standing to protest all portions of RAM's application and to participate in the entire hearing.

II.

RAM maintains that the PUC erred in finding that RAM had not met its burden of establishing the inadequacy of present paging services and the inability of existing paging services to accommodate public needs. ⁴ RAM implies that the sheer number of public witnesses it produced created a prima facie case, despite the hearing examiner's careful analysis of the degree to which the witnesses' testimony demonstrated the inadequacy of present services.

The PUC must consider the testimony of all witnesses appearing before it, Ephraim Freightways, Inc. v. Public Utilities Commission, 141 Colo. 330, 347 P.2d 960 (1959), but the number of witnesses testifying for a given proposition does not force the PUC to reach a particular result on that issue. Kuboske v. Public Utilities Commission, 187 Colo. 38, 40, 528 P.2d 248, 249 (1974). The PUC decides what weight to give to the evidence and determines the credibility of the witnesses. Mellow Yellow Taxi Co. v. Public Utilities Commission, 644 P.2d 18, 20 (Colo.1982); Morey v. Public Utilities Commission, 629 P.2d 1061, 1068 (Colo.1981). An applicant for a certificate of public convenience and necessity must demonstrate that existing services are substantially inadequate to meet public needs because "the test of inadequacy is not perfection" and some legitimate complaints will arise regarding any common carrier that provides service to many customers. Ephraim Freightways, Inc. v. Public Utilities Commission, 151 Colo. 596, 603, 380 P.2d 228, 232 (1963); Contact-Colorado Springs, Inc. v. Mobile Radio Telephone Service, Inc., 191 Colo. 180, 183, 551 P.2d 203, 205 (1976).

Section 40-6-115, 17 C.R.S. (1984), limits court review of PUC decisions to a determination of whether the PUC has regularly pursued its authority, whether its decision is just and reasonable, and whether the evidence supports its conclusions. City of Montrose v. Public Utilities Commission, 629 P.2d 619 (Colo.1981); Contact-Colorado Springs, 191 Colo. at 183, 551 P.2d at 204-05; Mountain States Telephone & Telegraph Co. v. Public Utilities Commission, 182 Colo. 269, 513 P.2d 721 (1973). The reviewing court may not substitute its judgment for that of the PUC, but must determine only whether there is competent evidence in the record to support the PUC decision. Mellow Yellow Taxi, 644 P.2d at 20; Atchison, Topeka & Santa Fe Railway Co. v. Public Utilities Commission, 194 Colo. 263, 572 P.2d 138 (1977). The evidence must be viewed in the light most favorable to the PUC's findings. Morey, 629...