State ex rel. Competitive Telecommunications v. Missouri Public Service Com'n
| Decision Date | 02 August 1994 |
| Docket Number | Nos. WD,s. WD |
| Citation | 886 S.W.2d 34 |
| Parties | STATE ex rel. COMPETITIVE TELECOMMUNICATIONS, Plaintiff, MCI Telecommunications Corp., Midwest Independent Coin Payphone Association, Missouri Office of the Public Counsel, Kansas City Cable Partners, Appellants, v. MISSOURI PUBLIC SERVICE COMMISSION, Southwestern Bell Telephone Company, Respondents, Small Telephone Company Group, Intervenor. STATE ex rel. COMPETITIVE TELECOMMUNICATIONS, Plaintiff, Midwest Independent Coin Payphone Association, Appellant, v. MISSOURI PUBLIC SERVICE COMMISSION, Respondent. STATE ex rel. COMPETITIVE TELECOMMUNICATIONS, Plaintiff, Missouri Office of the Public Counsel, Appellant, v. MISSOURI PUBLIC SERVICE COMMISSION, Respondent. STATE ex rel. COMPETITIVE TELECOMMUNICATIONS, Plaintiff, Kansas City Cable Partners, Appellant, v. MISSOURI PUBLIC SERVICE COMMISSION, Respondent. 48802, WD 48824, WD 48825 and WD 48826. |
| Court | Missouri Court of Appeals |
Carl James Lumley, Clayton, for MCI Telecommunications Corp.
William M. Barvick, Jefferson City, for Midwest Independent Coin Payphone Ass'n.
Martha S. Hogerty, Jefferson City, for Missouri Office of Public Counsel.
Mark P. Johnson, Kansas City, for Kansas City Cable Partners.
Robert J. Hack, Cherlyn D. McGowan, Jefferson City, for Missouri Public Service Com'n.
Ann Effinger Meuleman, St. Louis, for Southwestern Bell.
William Ross England, III, Jefferson City, for intervenor Small Telephone Co. Group.
Before TURNAGE, P.J., and FENNER and HANNA, JJ.
This is a consolidated appeal from a decision of the circuit court which affirmed a decision of respondent, Missouri Public Service Under Missouri Law, telecommunications services and companies are classified as either noncompetitive, transitionally competitive or competitive. § 392.480.1, RSMo Supp.1993. 2 The classification of a company or a service offered by a company determines the extent of regulation by the Commission. Noncompetitive services and companies are the most regulated, and competitive the least.
Commission (Commission). The decision in question classified certain services of respondent, Southwestern Bell Telephone Company (Southwestern Bell) as transitionally competitive. Appellants, MCI Telecommunications Corporation (MCI) and Kansas City Cable Partners (KCCP) are providers of telecommunications services in Missouri. Appellant, Midwest Independent Coin Payphone Association (MICPA), is an association which promotes the interests of private payphone providers. Appellant, Missouri Office of Public Counsel (OPC), is authorized to act herein under sections 386.700 and 386.710, RSMo 1986. 1
In the case at bar, Southwestern Bell, a noncompetitive company, filed a petition with the Commission seeking transitionally competitive status for certain services it offered. Southwestern Bell filed its request under section 392.370.1. In its petition, Southwestern Bell sought to have five of its services classified as transitionally competitive. The services were message toll services (MTS), operator service, private line service, WATS and 800 Service. 3
MTS is service between exchanges or long distance service. Southwestern Bell is only authorized to provide MTS within a Local Access Transport Area otherwise referred to as a LATA. Missouri is divided geographically into four LATAs. Appendix A, attached hereto, is a drawing showing the LATA divisions in Missouri.
An interexchange call between exchanges located in the same LATA is referred to as an intraLATA call. An interexchange call between exchanges in different LATAs is referred to as an interLATA call. Southwestern Bell is prohibited from providing interLATA service. Interexchange companies (IXCs) such as AT & T, MCI and U.S. Sprint Communications Company (Sprint), provide statewide MTS service which encompasses both interLATA and intraLATA service.
Operator services are those where a customer seeks the assistance of an operator such as in completing calls, making person to person or collect calls and billing calls to a calling card or to a third party. Private Line Services include digital private line and special access services which transmit digital electronic signals along circuits dedicated to the exclusive use of a subscriber. Private line offerings are utilized by end users, while special access services are limited to IXCs by Southwestern Bell's tariff. 4 The Commission ordered that Southwestern Bell's MTS, operator service, private line service, WATS and 800 Service, be reclassified as transitionally competitive.
The significance of transitionally competitive status is set forth in section 392.510. Under this section, telecommunications companies may file proposed tariffs for any competitive or transitionally competitive telecommunications service, which includes and specifically describes a range, establishing a maximum and minimum rate within which range a change in rates or charges for service could be made without prior notice or prior commission approval. § 392.510.1.
The range initially filed is merely a proposal which must then be approved by the Commission. The Commission can only approve the proposed tariff upon demonstration by the company and finding by the Commission Once classified as transitionally competitive, Southwestern Bell's MTS and operator services will continue to be so classified initially for up to three years with the Commission having the ability to extend the classification for two additional three year periods. § 392.370.1-.2. Furthermore, in the event the Commission determines that the classification as transitionally competitive is no longer in the public interest or consistent with the intent and purpose of Chapter 392, RSMo 1986, it may reclassify a service as noncompetitive. However, thereafter equal regulation shall be applied by the Commission to all telecommunications companies offering the same, equivalent or substitutable service. § 392.370.3.
that any and all rates or charges within the range are consistent with the public interest and the provisions and purposes of Chapter 392, RSMo 1986. § 392.510.2.
On appeal from a decision by the circuit court in a case decided by the Public Service Commission, the appellate court reviews the decision of the Commission, not the judgment of the circuit court. State ex rel. Missouri Office of Public Counsel v. Public Service Comm'n, 782 S.W.2d 822, 824 (Mo.App.1990).
Appellate review of adjudicated proceedings before the Public Service Commission is limited to a determination of the lawfulness and reasonableness of the Commission's actions; lawfulness is determined from the statutory authority of the Commission to act while reasonableness depends on whether the decision is supported by competent and substantial evidence. Mo. Const. Art. V, Sec. 18; State ex rel. Beaufort Transfer Co. v. Clark, 504 S.W.2d 216, 217 (Mo.App.1973). Moreover, on appellate review a Commission order enjoys a presumption of validity as to matters of reasonableness and the court may not substitute its judgment for that of the Commission if the Commission order is supported by substantial and competent evidence on the record as a whole. State ex rel. Ashcroft v. Public Serv. Comm'n, 674 S.W.2d 660, 662 (Mo.App.1984) (). In fact, findings of the Commission are prima facie correct and one challenging a Commission order carries the burden of making a convincing showing that those findings are not reasonable and lawful. State ex rel. Inman Freight System, Inc. v. Public Serv. Comm'n, 600 S.W.2d 650, 654 (Mo.App.1980); see also § 386.430, RSMo 1986.
Since the Commission is a fact-finding agency, the court is not authorized to weigh the evidence heard by the Commission. State ex rel. Inman Freight System, Inc., 600 S.W.2d at 654. Instead, the evidence should be considered in the light most favorable to the Commission together with all reasonable supporting inferences. As a result, if the evidence permits either of two opposed findings, the court must defer to the findings of the Commission. State ex rel. Conner v. Public Service Comm'n, 703 S.W.2d 577, 582 (Mo.App.1986).
In MCI's sole point on appeal and OPC's first point, they argue that the circuit court erred in affirming the Commission's order interpreting section 392.370.1 to the extent that the Commission found that other telecommunications companies are offering services that are "substitutable" to Southwestern Bell's MTS and operator services. MCI and OPC argue that the Commission improperly interpreted section 392.370.1, in regard to the phrase "same, substitutable, or equivalent," and that under the "correct" interpretation, the facts do not support the Commission's findings in regard to Southwestern Bell's MTS and operator services.
Southwestern Bell filed its petition and the Commission decided this case under the provisions of section 392.370.1, which provides, in pertinent part, as follows:
After the effective date of an order of the commission which finds, pursuant to section 392.361, that a telecommunications service is sufficiently competitive to justify a lesser degree of regulation, the same MCI argues that the phrase "same, substitutable, or equivalent," has a single meaning which is "essentially the same." 5 OPC argues that the phrase requires a comparison of services that are equal in quality, in every quality dimension, to the service of the entity seeking classification.
substitutable, or equivalent service offered by a transitionally competitive or noncompetitive telecommunications company shall be classified as transitionally competitive pursuant to the procedure set out in subsection 2 of section 392.490, if the telecommunications...
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