Southern Message Service, Inc. v. Louisiana Public Service Com'n, 89-CA-2121

CourtSupreme Court of Louisiana
Citation554 So.2d 47
Decision Date11 December 1989
Docket NumberNo. 89-CA-2121,89-CA-2121
PartiesSOUTHERN MESSAGE SERVICE, INC., Appellee, v. LOUISIANA PUBLIC SERVICE COMMISSION and Cameron Telephone Company, Appellants.

Page 47

554 So.2d 47
SOUTHERN MESSAGE SERVICE, INC., Appellee,
v.
LOUISIANA PUBLIC SERVICE COMMISSION and Cameron Telephone
Company, Appellants.
No. 89-CA-2121.
Supreme Court of Louisiana.
Dec. 11, 1989.

Page 48

James Field, Gary, Field, Landry & Dornier, Baton Rouge, Oliver Stockwell, Thomas Henning, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, Robert Rieger, Jr., for appellants.

Carlos Spaht, Baton Rouge, for appellee.

DENNIS, Justice.

In this case we must determine the proper construction of the exemption granted land line telephone companies in the radio common carrier statute, La.R.S. 45:1501-1504. The Public Service Commission issued an order authorizing Cameron Telephone, a land line telephone company, to construct and operate a radio tower in Lake Charles for the purpose of conducting pager operations in the Lake Charles metropolitan area. Southern Message Service, the certificated radio common carrier currently operating in Lake Charles, opposed Cameron Telephone in the Public Service Commission and appealed from its order. The district court found that Cameron Telephone had failed to make the showing necessary under La.R.S. 45:1503(C) to authorize

Page 49

the Commission to grant a certificate in an area where a radio common carrier was already certificated and operating. The court remanded the case to the Commission for the hearing of additional evidence. From this decision, the Commission and Cameron Telephone appealed.

Facts

Cameron Telephone is a land line telephone company operating primarily in Cameron Parish, but with territory extending into Calcasieu Parish. In connection with its land line telephone business, and pursuant to this court's decision in Cameron Tel. Co. v. Louisiana Pub. Serv. Comm'n, 440 So.2d 694 (La.1983), cert. denied, 466 U.S. 959, 104 S.Ct. 2171, 80 L.Ed.2d 554 (1984), Cameron operates a radio paging service within and adjacent to its service area. The transmitting tower for this service is located adjacent to its exchange in Carlyss, and its range allows Cameron to service part, but not all, of the Lake Charles metropolitan area.

Seeking to expand its paging operations to cover the entire Lake Charles area, Cameron Telephone sought and received radio common carrier frequencies from the Federal Communications Commission for the Lake Charles area. It then filed an application with the Public Service Commission for permission to construct a tower within Lake Charles. 1 Cameron Telephone claimed entitlement to permission under two separate theories. First, it argued that the exclusion of land line telephone companies from the definition of "radio common carriers" in La.R.S. 45:1501 meant that land line telephone companies did not have to comply with the certification requirements of La.R.S. 45:1503. Alternatively, Cameron Telephone alleged that it could meet the certification requirements of Sec. 1503 by showing that (1) the existing service, which was operated by a certificated radio common carrier, Southern Message Service, was inadequate to meet the reasonable needs of the public, and that (2) Southern Message Service refused to, neglected to or was unable to provide reasonable adequate service.

Southern Message intervened in the proceeding and opposed Cameron's application. At the hearing, Cameron Telephone moved that the Commission grant the application without hearing on the grounds that Cameron Telephone was entitled to operate the paging service of right. The hearing examiner denied this motion on the grounds that it was beyond his authority as a hearing examiner, and the parties proceeded with the hearing. Following the hearing, the matter was taken up by the Commission.

The Commission, in Order No. U-16526, granted Cameron Telephone's application. After reciting the procedural facts of the application, the Commission stated two alternative grounds for this action:

[I]nasmuch as South Central Bell has not been awarded the frequencies to conduct paging service, which it could provide without a requirement of certification as a radio common carrier, the Commission is of the opinion that the exemption from certification provided in R.S. 45:1501 extends to Cameron Telephone Company which may commence operations without certification as a radio common carrier. However, the evidence submitted by Cameron as to the need for reliable paging service in Lake Charles is completely adequate for the issuance of a certificate of public convenience and necessity as a radio common carrier. The witnesses presented demonstrated that Southern Message Service operates its service through an agent rather than as the certificated carrier and the service is deemed to be inferior by several witnesses who testified that pagers were not made available when requested by customers and that the radio common carrier does not offer long range service. The evidence also indicated that the transmitter is frequently out of service for a number of days which in such instances required the customers to acquire

Page 50

a mobile radio in a vehicle as the Southern Message Service pager could not be trusted during emergencies.

The Commission denied a motion for reconsideration, and Southern Message appealed to the 19th Judicial District Court. Radiofone, another radio common carrier, and the Louisiana Association of Radio Common Carriers intervened in the appeal.

Before the appeal was decided, these intervenors filed an Application for a Declaratory Order before the Commission, seeking a ruling on whether Order No. U-16526 would have precedential effect and constituted a change in the Commission's previous policy regarding land line telephone companies operating radio common carrier service. The appeal was stayed pending the Commission's decision in the declaratory order application. In Order No. U-17858, the Commission declared that its previous order had no precedential effect. The declaratory order stated in part:

It is the decision of the Commission that the Cameron Orders ... were based upon the peculiar facts present in that record. The Commission is satisfied that Cameron Telephone Company had shown the public necessity and convenience would be promoted by it providing paging service in the requested area, as had been historically required by past Commission orders and policy. As such the Commission's decision in Cameron Telephone Company, ex parte bearing LPSC Docket No. U-16526 was not intended as a precedent regarding the construction of towers outside the wireline territory of a wireline telephone company. In summary, to the extent that LPSC Orders No. U-16526 and No. U-16526-A [the denial of reconsideration] necessitate clarification, let it be known that the Commission did not intend to hold that the construction or operation of radio common carrier facilities outside a telephone company's wireline territory are exempt from certification by the Commission. This order shall in no way be construed to infringe upon the authority granted Cameron Telephone Company in the Cameron Orders.

After this decision, the intervenors withdrew and the appeal proceeded. The district court reversed the grant of the certificate. In written reasons for judgment, the trial court stated that the certification requirements of La.R.S. 45:1503(C) had not been met. The statute requires proof that the existing service is inadequate and that the person operating the service is unable to or refuses or neglects to provide adequate service, but the court found "no clear-cut evidence" of the first element and "no credible evidence" of the second. The court remanded the case to the Commission "for the taking of further evidence as whether SMSI is able and willing to provide reasonable adequate service, or is 'unable to or refuses or neglects, after the prior hearing, to provide reasonable adequate service.' "

Must a Land Line Telephone Company Seek Certification under

the Statute?

Southern Message maintains that the district court was correct both in finding the certification under R.S. 45:1503(C) applicable and in finding that that standard had not been met. Cameron argues that because it is a land line telephone company it is exempt from any certification requirement under the radio common carrier statute. The Commission apparently also takes the position that certification is not necessary under that statute, and claims that it retains the power to regulate Cameron under its general authority over the activities of telephone companies. 2 We must delineate the proper scope of the exemption contained in La.R.S. 45:1501 to determine whether the Commission properly

Page 51

granted the certificate. Considering the history and purpose of the statute, we hold that the exemption applies only to land line telephone companies operating within their geographical territory. Consequently, telephone companies wishing to offer radio common carrier service outside their land line service areas in an area where another radio common carrier already provides such service must make the regular showing required by La.R.S. 45:1503(C).

La.R.S. 45:1501 provides in pertinent part:

C. The term "radio common carriers" when used in this Chapter includes every corporation, company, association, partnership and persons and lessees, trustees, or receivers, appointed by any court whatsoever owning, operating or managing a radio common carrier or public "for hire" radio service engaged in the business of providing a service of radio communications between mobile and base stations, between mobile and land stations, including land line telephones, between mobile stations or between land stations, but not engaged in the business of providing a public land line message telephone service or a public message telegraph service.

D. Notwithstanding any provisions of R.S. 45:781 through 45:790 inclusive, or any provision of this Chapter, the term "radio common carrier" as used in this Chapter shall not be...

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