RAM Broadcasting of Indiana, Inc. v. Digital Paging Systems of Indiana, Inc.

• Decision Date: 15 May 1984
• Docket Number: No. 2-1182,2-1182
• Citation: 463 N.E.2d 1104
• Parties: RAM BROADCASTING OF INDIANA, INC., and Radiotelephone Company of Indiana, Inc., Respondents-Appellants, v. DIGITAL PAGING SYSTEMS OF INDIANA, INC., Petitioner-Appellee, and Indiana Bell Telephone Company, Incorporated, Hendricks Telephone Corporation, Hancock Rural Telephone Corporation, and T.A.S.I., Inc., Respondents-Appellees. A 373.
• Court: Indiana Appellate Court

Page 1104

463 N.E.2d 1104

RAM BROADCASTING OF INDIANA, INC., and Radiotelephone Company of Indiana, Inc., Respondents-Appellants, v. DIGITAL PAGING SYSTEMS OF INDIANA, INC., Petitioner-Appellee, and Indiana Bell Telephone Company, Incorporated, Hendricks

Telephone Corporation, Hancock Rural Telephone

Corporation, and T.A.S.I., Inc.,

Respondents-Appellees.

No. 2-1182 A 373.

Court of Appeals of Indiana,

First District.

May 15, 1984.

Jerry Williams, Nancy E. Wever, Williams & Shoup, Indianapolis, for respondents-appellants.

James L. Petersen, James A. Shanahan, Robert B. Clemens, Ice, Miller, Donadio & Ryan, Indianapolis, for petitioner-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

RAM Broadcasting of Indiana, Inc. (RAM) and Radiotelephone Company of Indiana, Inc. (RTI), appeal from the decision of the Public Service Commission of Indiana (Commission) granting Digital Paging Systems of Indiana, Inc. (Digital) a Certificate of Territorial Authority to operate a radio paging system in Marion County, Indiana.

We affirm.

FACTS

In April of 1979, Digital filed its petition with the Commission seeking a Certificate of Territorial Authority to operate a radio paging system in Marion County. At that time, both RAM and RTI held certificates enabling them to offer mobile telephone and paging services to the public in Marion. ¹ Each opposed Digital's petition.

Following more than three years of proceedings, the Commission entered its order granting Digital a certificate on October 13, 1982. Thereafter, RAM and RTI perfected their appeal.

Additional facts are stated in our discussion of the issues.

ISSUES

The issues raised by the appellants, restated in the interest of clarity, are:

1. Did the Commission err in failing to make findings regarding alleged "plagiarism" in the pre-filed testimony of one of Digital's witnesses?

2. Was the Commission's order contrary to law with respect to several evidentiary rulings?

3. Was the Commission's finding of basic fact that failure to grant Digital a certificate would result in an unfair competitive advantage to its competitors supported by substantial evidence?

4. Was the Commission's finding of basic fact regarding the validity of Digital's telephone inquiries supported by substantial evidence?

5. Did the Commission's findings of basic fact support the ultimate conclusion that public convenience and necessity required the granting of a certificate to Digital?

6. Did the Commission's findings of basic fact support the ultimate conclusion that Digital possessed the technical and managerial ability to provide radio paging services?

7. Did the Commission err in failing to articulate the meaning it ascribed to the term "public convenience and necessity?"

8. Did the Commission err in failing to establish objective standards for determining whether to grant Digital a certificate?

9. Did the Commission err in adopting and applying a theory of regulated competition as opposed to regulated monopolization in the granting of a certificate to Digital?

10. Was the distinction drawn by the Commission between RCCs ² and landline telephone companies regarding the finite capabilities of RCCs contrary to law?

DISCUSSION AND DECISION

Issue One

The appellants first challenge the pre-filed testimony of Digital's engineering witness Alan Gruber concerning Digital's technical and managerial ability to provide the radio paging services it proposed. According to the appellants, Gruber's testimony was a plagiarized version of the testimony of an engineering witness for T.A.S.I. in its separate proceeding before the Commission seeking a certificate to serve Marion County. Thus, the appellants submit, because the nature of Gruber's testimony concerned the ability of Digital to serve the public, the Commission erred in failing to make findings of basic fact regarding the alleged plagiarism.

Digital readily concedes Gruber's testimony was nearly identical to that of T.A.S.I.'s witness. However, Digital submits its use of an identical question and answer format was prompted by the fact it was successful in the qualification of the T.A.S.I. witness as an expert and in the Commission's conclusion that T.A.S.I. possessed the requisite abilities. Moreover, Digital argues, even if the format of Gruber's testimony was similar, the substance was not. In fact, Digital asserts, it was quite different insofar as Gruber's testimony pertained to the technical data applicable to Digital and not T.A.S.I.

Whether the format of Gruber's testimony was similar or even identical in part to that of a witness in a prior unrelated proceeding misses the point. What the Commission determined was that Digital possessed the requisite abilities. Thus, the fact that the questions propounded to Gruber tracked those put to a witness in an unrelated proceeding fails to bear on the question of whether, in the instant proceedings, Digital convinced the Commission of its technical abilities. Viewed from this perspective, the appellants' argument is merely an invitation to reweigh the evidence that was before the Commission and resolve Gruber's credibility. We must refuse the invitation. Southern Railway Co. v. Board of Commissioners of Vanderburgh County, (1981) Ind.App., 426 N.E.2d 445, 447-48, trans. denied (1982).

Issue Two

The appellants next contend the Commission erred in the admission of the results of telephone surveys conducted by Digital and in the exclusion of evidence regarding Digital's affiliates. Addressing first the admission of the telephone survey results, the appellants argue this evidence was hearsay and constituted the only evidence regarding public need, thereby making the Commission's reliance thereon contrary to C.T.S. Corp. v. Schoulton, (1978) 270 Ind. 34, 383 N.E.2d 293.

In C.T.S. Corp., our supreme court established that while an administrative decision may rely upon hearsay, it may not rest exclusively upon that evidence. Instead, there "must be a 'residuum' of legal evidence to support [it.]" Id. at 38, 383 N.E.2d at 295. See also Cornell v. Review Board of the Indiana Employment Security Division, (1979) 179 Ind.App. 17, 383 N.E.2d 1102.

While the appellants argue the Commission premised its finding of public need for Digital's services solely upon the results of the telephone surveys, such was not the case. Examination of the record reveals the Commission also relied upon extensive demographic evidence pertaining to population statistics as well as the number and type of employers in Marion County. In addition, the Commission even noted the testimony of RAM's general manager concerning market potential:

"20. RAM's General Manager, Mary Small, testifying as a witness for RAM, stated that a conservative estimate of the potential market for paging units is 2% of the population living and working in the market area. Based on her estimate, which was admittedly conservative, she testified that the potential market for paging service in Marion County is in excess of 20,000 units. The evidence indicated that RAM, T.A.S.I., Radiotelephone and Indiana Bell have less than 11,500 paging units in service at this time, which demonstrates that a sizeable unmet need for paging service exists in the Marion County market."

Record at 425. All of this evidence was in addition to the telephone surveys of which the appellants now complain. Thus, even if those results were incompetent hearsay, there was an abundance of competent evidence supportive of the Commission's finding and we will not set it aside. Cornell; L.S. Ayres & Co. v. Indianapolis Power and Light Co., (1976) 169 Ind.App. 652, 700, 351 N.E.2d 814, 844, trans. denied (1977).

Additionally, the appellants attack the Commission's refusal to admit evidence regarding alleged misconduct of certain Digital affiliates. They argue this evidence was relevant to Digital's ability to provide the proposed paging services and thus, should have been admitted. In support of their argument the appellants direct our attention to Nordhoff v. Review Board of the Indiana Employment Security Division, (1959) 129 Ind.App. 378, 156 N.E.2d 787, where we held the review board, like a trial court, is not permitted to ignore competent and uncontradicted evidence. Id. at 383, 156 N.E.2d at 789.

In the instant proceedings, however, the evidence concerning Digital's technical and managerial abilities was far from being uncontradicted. Moreover, we find ourselves in agreement with the Commission that the alleged misconduct of Digital's corporate affiliates bears no relevancy upon the ability of Digital to provide radio paging services in Marion County. Accordingly, we do not believe the Commission abused its discretion in refusing to admit this evidence.

Issue Three

The appellants also attack the Commission's finding of basic fact that a failure to grant Digital a certificate would result in an unfair competitive advantage to those RCCs already operating in Marion County. In the appellants' view, this finding is not supported by substantial evidence, and even assuming it is, the finding is irrelevant.

The specific finding challenged by the appellants reads as follows:

"19. The Petitioner and each of the Respondents hold certificates of territorial authority to render paging service within the seven counties contiguous to Marion County, Indiana. In granting such certificates, the Commission considered it a factor that all of the carriers held or had applied for a certificate to render service in Marion County. That Petitioner and Respondents hold certificates for the seven contiguous counties is similarly a factor in this proceeding. To allow Respondents to render service in Marion County while denying authority to the Petitioner would deprive the residents and workers of Marion County of the same number of carriers from which to choose as is available to the residents and workers in the counties surrounding Marion County. It would also tend to give Respondents an...