Southern Message Service, Inc. v. Louisiana Public Service Com'n

• Decision Date: 29 February 1988
• Docket Number: No. 87-CA-2314,87-CA-2314
• Citation: 520 So.2d 734
• Parties: SOUTHERN MESSAGE SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION. 520 So.2d 734
• Court: Louisiana Supreme Court

Page 734

520 So.2d 734

SOUTHERN MESSAGE SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 87-CA-2314.

520 So.2d 734

Supreme Court of Louisiana.

Feb. 29, 1988.

Desmond E. McGinn, Shreveport, for intervenor-appellant.

Carlos Spaht, Kantrow, Spaht, Weaver & Blitzer, Marshall Brinkley, Baton Rouge, for defendant-appellee.

COLE, Justice.

This appeal is from a judgment of the Nineteenth Judicial District Court reversing an order of the Louisiana Public Service Commission (Commission) granting a certificate of public convenience and necessity. The only issue presented is whether the applicant sustained his required burden of proof under La.R.S. 45:1503(C). The district court held the applicant did not satisfy the statutory burden. We affirm.

PROCEDURAL HISTORY

In February of 1986, Danny J. Lawler d/b/a Danny J. Lawler and Associates (Lawler) filed an application with the Commission for a certificate as a radio common carrier to operate a paging service for the Shreveport area. Southern Message Service, Inc. (SMSI), a radio common carrier which has held a certificate since 1968 to service the same area, opposed the application.

On September 23, 1986, a public hearing was held on the matter before Hearing Officer Edward L. Gallegos, Chief Engineer of the Commission. In his report to the Commission he stated:

It is the opinion of the Examiner that sufficient paging service is available in the Shreveport area and that the future plans of the existing carriers will cover any future needs of the public.

Nevertheless, the Commission ordered the application approved stating:

It is the opinion of the Commission that additional service is necessary in the Shreveport area that will cover the entire parish of Caddo and that it is [in] the public interest to authorize additional paying service in the area.

After the Commission denied its application for rehearing SMSI appealed the Commission's order to the district court and Lawler intervened. The district court found the evidence insufficient to support the Commission's order and reversed, nullifying the certificate. The Commission chose not to appeal this decision. However, Lawler appealed directly to this court in accordance with Article IV, Sec. 21(E) of the Louisiana Constitution.

LAW

The law governing the issuance of these certificates and judicial review thereof is well settled. No carrier may begin construction or operation of a mobile radio system without first obtaining a certificate from the Commission that the present or future public convenience and necessity requires such construction or operation. La.R.S. 45:1503(A). If the proposed operation of a carrier will compete with or duplicate the service of another carrier, the Commission is prohibited from granting the requested certificate unless it first determines both "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." (Emphasis added). La.R.S. 45:1503(C). Southern Message Service, Inc. v. Louisiana Public Service Commission, 370 So.2d 874 (La.1979); Communications Ind., Inc. v. Louisiana Public Service Commission, 260 La. 1, 254 So.2d 613 (1971).

An applicant for a new certificate has the burden of showing clearly the public convenience and necessity is materially promoted by the issuance of the certificate. Miller Transporters, Inc. v. Louisiana Public Service Commission, 518 So.2d 1018, 1020 (La.1988). M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d 574, 575 (La.1983); Florane v. Louisiana Public Service Commission, 433 So.2d 120, 123 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265, 1266-67 (La.1981); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666, 667-68 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644, 647 (1965). Upon judicial review of the Commission's determination of whether the applicant has made such a showing, a court will not upset the agency's finding unless it is based on an error of law or is one which the Commission could not have found reasonably from the evidence. Miller Transporters, Inc. v. Louisiana Public Service Commission, supra; M & G Fleet Service, Inc. v. Louisiana Public Service Commission, supra; Florane v. Louisiana Public Service Commission, supra; Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

In its reasons for judgment the district court found the applicant failed to present adequate evidence to carry his burden with respect to either requirement of section 1503(C). As regards the first requirement the district court found the evidence to be insufficient. As to the second, it stated no evidence whatsoever had been presented.

We agree with the determinations of the district court. As will be shown by the summary of the evidence below, the Commission could not have reasonably found the present carriers inadequate to meet the present or future needs of the public within the requirements of section 1503(C).

THE APPLICANT'S CASE

In support of his claim the service of the existing carriers was deficient, Lawler called several witnesses. The first was his father, Joe Lawler. He testified he had used SMSI's two-way radio telephone service in his construction business. He complained that not enough channels were available in the morning hours. After this difficulty he discontinued the service. He admitted these difficulties occurred over three years before his son's application and that he did not complain to SMSI about the problems. He also never rented pagers from SMSI.

Lawler's next witness was Michael T. Willis. Although currently self-employed, he testified he had used the services of SMSI when he was a volunteer fireman and as a driver for Caddo Ambulance Company. He complained the pagers provided by SMSI for the fire department were hard to understand in metal buildings in some parts of Caddo parish. He also had trouble with false alarms. He admitted he had not been with the fire department in over four years. Also, he did not know whether the pagers were donated by SMSI or if the fire department used SMSI's transmitters.

As an ambulance driver he complained of problems with getting a clear channel on the two-way radio telephone provided by SMSI. He admitted it had been over a year since he had worked for Caddo Ambulance. Although he stated he did not have a financial interest in Caddo Ambulance, he admitted the company was owned by Lawler.

Mr. John Hughes, marketing director for Air Time Communications, a private paging service owned by Lawler not subject to Commission regulation, testified he had conducted a range test of SMSI's paging service. Although not an engineer or technician, he felt he had a general knowledge of the paging industry because of his previous employment with Motorola Communications in the 1960's. In order to test SMSI's paging range he went to SMSI and requested long distance paging. Since SMSI did not have a long distance pager on hand and one would not be available until the end of the week, he rented a local pager. He also requested an antenna, but since this would have to be ordered he used an antenna from his own stock. In order to test the paging system he used a mobile telephone obtained from another firm. According to his tests the pagers he provided through Air Time Communications outperformed the SMSI pager. Particularly, he found there was difficulty receiving the page in Vivian, north of Shreveport, and in Atlanta, Texas. He admitted that as a private carrier Air Time was able to use higher powered equipment than regulated carriers.

Mr. Hughes also stated he intended to test the capabilities of one of the other certificate holders in the Shreveport area, Radio & Communication Consultants, Inc., but he "blanked out" and could not remember if he ever performed the tests or what the results might have been.

Mr. Lawler then testified in his own behalf. He stated SMSI's tone-voice paging was weak in the Pine Island oilfield and in some towns north of Shreveport, such as Vivian and Plain Dealing. He based this opinion on complaints made to him by certain customers of SMSI but declined to name or produce those customers.

Lawler also stated he would provide certain alpha-numeric paging formats referred to as Pocsag and HSC. The Pocsag format was not currently provided by area carriers. With Pocsag a customer could enter a 352 character message using codes on a...