State ex rel. Intern. Telecharge, Inc. v. Missouri Public Service Com'n
| Citation | 806 S.W.2d 680 |
| Decision Date | 13 February 1991 |
| Docket Number | No. WD,WD |
| Parties | Util. L. Rep. P 26,041 STATE ex rel., INTERNATIONAL TELECHARGE, INC., and State ex rel., American Operator Services, Respondents, State ex rel., Midwest Independent Coin Pay Phone, Appellant, v. The MISSOURI PUBLIC SERVICE COMMISSION, Respondent, Office of the Public Counsel and Southwestern Bell Telephone Co., Intervenors-Respondents. STATE ex rel., INTERNATIONAL TELECHARGE, INC., State ex rel., American Operator Services, and State ex rel., Midwest Independent Coin Pay Phone, Respondents, v. The MISSOURI PUBLIC SERVICE COMMISSION, Respondent, Office of the Public Counsel, Intervenor-Appellant, Southwestern Bell Telephone Co., Intervenor-Respondent. STATE ex rel., INTERNATIONAL TELECHARGE, INC., Respondent, State ex rel., American Operator Services, and State ex rel., Midwest Independent Coin Pay Phone, Plaintiffs, v. The MISSOURI PUBLIC SERVICE COMMISSION, Appellant, Office of the Public Counsel, and Southwestern Bell Telephone Co., Intervenors. 42848. |
| Court | Court of Appeal of Missouri (US) |
William M. Barvick, Jefferson City, Philip Newmark, Clayton, for appellant Midwest Independent Coin Pay Phone.
Mark D. Wheatley, Asst. Public Counsel, Jefferson City, for intervenor-respondent Office of the Public Counsel.
Penny G. Baker, Asst. Gen. Counsel, Jefferson City, for respondent Missouri Public Service Com'n.
Richard S. Brownlee, II, Jefferson City, for respondent Intern. Telecharge, Inc.
Mark P. Johnson, Kansas City, for respondent American Operator Services.
John Randolph Bakewell, Jefferson City, for respondent The Missouri Public Service Com'n.
Roger K. Toppins, St. Louis, for intervenor-respondent Southwestern Bell Telephone Co.
Before BERREY, P.J., and FENNER and ULRICH, JJ.
Midwest Independent Coin Pay Phone Association (MICPA), an organization representing pay telephone manufacturers, dealers, service providers and owners, appeals the Public Service Commission's decision addressing the provision of operator services within the State of Missouri. The Commission, in its decision approving tariffs of three certificated telecommunications companies, denying one tariff and denying another application for a certificate, imposed restrictions upon the telecommunications companies limiting their ability to collect certain charges associated with operator assisted phone calls placed from privately owned pay telephones. On appeal, MICPA contends that the restrictions imposed by the Commission unreasonably and unlawfully hinder its members' rights to collect these charges. The Commission's decision is affirmed.
Operator services are provided to pay telephone users, referred to as end users, desiring to make person-to-person calls, collect calls or calls billed to a third party or calling card. Alternative operator services (AOS) is a recent development in telecommunication service whereby an AOS company contracts with a business subscriber to provide exclusive operator services to individuals using pay telephones located on the subscriber's premises or pay telephones controlled by the subscriber. The business subscriber, referred to as a traffic aggregator, is usually a hotel, motel, university, hospital or other business which has pay telephones available for public use. Thus, an end user placing an operator assisted call from a pay telephone utilizes the traffic aggregator's pay telephone and is provided operator service by the AOS company.
The pay phone owner selects which AOS company will provide operator assistance to end users of his pay phone and the pay phone is programmed to automatically direct calls requiring operator assistance to the chosen AOS company. The AOS company receives a tariffed rate from the end user for furnishing operator services. The AOS company provides the pay phone owner a commission from this tariffed rate in return for the owner's decision to route calls requiring operator assistance to the AOS company. The pay phone owner or location aggregator imposes an additional charge on each call requiring operator assistance known as a location surcharge. The AOS company commonly collects the location surcharge from end users on behalf of the location aggregator. Additionally, local exchange companies (LECs), such as Southwestern Bell, commonly include charges from the AOS companies, including tariffed rates and location surcharges, on the LEC's monthly bill to end users. Thus, a telephone customer may receive a monthly bill which includes charges from his LEC, tariffed rates reflecting operator assistance from AOS companies and location surcharges imposed by traffic aggregators.
In the current case, Dial U.S., Dial U.S.A., Teleconnect, and International Telecharge, Inc. (ITI), all certificated telecommunications companies in Missouri, sought the Commission's approval of tariffs they had filed setting forth the terms and conditions by which these AOS companies sought to provide operator services to intrastate telephone customers in Missouri. Additionally, American Operator Services, Inc., d/b/a National Telephone Services (NTS), not certificated in Missouri, filed an application with the Commission for a certificate as an authorized provider of operator services. The Commission consolidated these five separate proceedings for a single hearing. MICPA intervened in this consolidated proceeding in support of the tariffs filed by the AOS companies and in support of NTS' application for a certificate.
Following a hearing, the Commission issued its report and order wherein it approved, with certain restrictions, the tariffs filed by Dial U.S., Dial U.S.A., and Teleconnect, but disapproved ITI's tariff and denied NTS' application for a certificate of authority. In particular, in approving the tariffs of Dial U.S., Dial U.S.A. and Teleconnect the Commission determined that the AOS companies' charges for operator services must be the same regardless of the location from which the call is initiated, thus limiting the AOS companies' ability to impose inflated charges on end users of pay telephones in order to recoup the commissions which the AOS companies must pay to traffic aggregators. Additionally, the Commission prohibited the practice of location surcharges appearing on LEC's monthly bills. Dial U.S., Dial U.S.A., and Teleconnect did not appeal the Commission's decision. MICPA appealed that portion of the Commission's decision imposing the restrictions described above on the three AOS companies. ITI and NTS also appealed the Commission's decision.
On appeal, the circuit court reversed that part of the Commission's decision denying ITI and NTS the right to do business in Missouri. However, the circuit court affirmed that portion of the Commission's decision imposing the restrictions upon the AOS companies which MICPA contested. MICPA appeals to this court contesting those provisions of the Commission's decision restricting the AOS companies billing practices.
On appeal, MICPA contends that the Commission erred in imposing restrictions upon the AOS companies, limiting their ability to collect certain charges associated with the provision of operator services to end users of pay telephones, because (I) the Commission failed to make any findings of fact that would support such a decision and the conclusive statements purporting to be findings of fact are unsupported by any competent and substantial evidence in the record; (II) the Commission unlawfully attempted to regulate the rates charged by pay phone providers in a manner that is contrary to and prohibited by §§ 392.520 and 392.240, RSMo Supp.1990; and (III) the Commission's decision amounted to unlawful rulemaking by an administrative agency in violation of requirements contained in chapter 536, RSMo 1986. The Commission's decision is affirmed.
For its first point on appeal, MICPA contends that the Commission erred in restricting the AOS companies' ability to collect certain charges associated with providing operator services to end users of pay telephones because the Commission failed to make any findings of fact that would support imposing such restrictions. In particular, MICPA contends that the Commission's actions were unlawful because the Commission's order only contained a series of conclusive statements which fail to meet the provisions of § 536.090, RSMo 1986, requiring that the Commission's orders contain findings of fact. Alternatively, MICPA contends that, should this court determine that the Commission's findings of fact are adequate, these findings are not supported by competent and substantial evidence. Appellant's contention that the Commission's order contains inadequate findings of fact is first considered.
Missouri courts have never adopted a rigid standard for determining the adequacy of findings of fact. Glasnapp v. State Banking Bd., 545 S.W.2d 382, 387 (Mo.App.1976). Rather, the courts apply the standard found in Glasnapp to the particular facts of the case:
The most reasonable and practical standard is to require that findings of fact be sufficiently definite and certain or specific under the circumstances of the particular case to enable the court to review the decision intelligently and ascertain if the facts afford a reasonable basis for the order without resorting to the evidence.
Id. (quoting 2 Am.Jur.2d Administrative Law § 455, p. 268). Additionally, findings of fact are adequate when they do not "leave the reviewing court to speculate as to what part of the evidence the [Commission] believed and found to be true and what part it rejected." State ex rel. American Tel. & Tel. Co. v. Public Serv. Comm'n, 701 S.W.2d 745, 754 (Mo.App.1985).
The Commission's order contains a fifteen-page section entitled findings of fact wherein the Commission discusses proposals made by various parties, evidence presented...
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