Television Transmission, Inc. v. Public Utilities Commission

• Decision Date: 05 October 1956
• Citation: 301 P.2d 862,47 Cal.2d 82
• Court: California Supreme Court
• Parties: , 15 P.U.R.3d 496 TELEVISION TRANSMISSION, Inc., National Community Television Assoc., Inc., Petitioners, v. PUBLIC UTILITIES COMMISSION of the State of California, Respondent. S. F. 19501.

Page 862

301 P.2d 862

47 Cal.2d 82, 15 P.U.R.3d 496

TELEVISION TRANSMISSION, Inc., National Community Television Assoc., Inc., Petitioners, v. PUBLIC UTILITIES COMMISSION of the State of California, Respondent.

S. F. 19501.

Supreme Court of California, In Bank.

Oct. 5, 1956.

Welch, Mott & Morgan, Washington, D. C., Hoey, Hall & Conti, Martinez, and E. Stratford Smith, Washington, D. C., for petitioners.

Everett C. McKeage, Roderick B. Cassidy, Harold J. McCarthy, Wilson E. Cline and Edward F. Walsh, San Francisco, for respondent.

TRAYNOR, Justice.

Petitioner Television Transmission, Inc. operates a 'community television antenna' furnishing coaxial television antenna service to approximately 950 television sets in the Walnut Creek, Lafayette, and Martinez areas of Contra Costa County. Approximately 700 of the 950 television sets are in Martinez. To provide this service petitioner places a high-gain antenna at a point of higher elevation than the area to be served. The antenna receives television signals from available sources, amplifies them, and sends them through a coaxial cable to the subscribers' television sets by tapoff devices. Under an agreement with the Pacific Gas and Electric Company and the Pacific Telephone and Telegraph Company, petitioner uses poles owned jointly or separately by these companies for which it pays certain fixed charges per pole per year. Of the four television antenna systems in Martinez alone, petitioner is the only one that uses utility poles to provide service. Subscribers to petitioner's television antenna service pay an initial 'connect' fee and a continuing monthly charge.

Residents of the area served by petitioner filed a complaint wih the Public Utilities Commission alleging deficiencies in petitioner's service and requesting the commission to make an investigation and require petitioner to remedy the deficiencies or cease operating.

After a hearing the commission found that petitioner operates as a telephone corporation and is therefore subject to its jurisdiction. The commission then issued an interim order requiring petitioner to make a detailed survey of its facilities and to submit a written report within 90 days setting forth criteria for establishing reasonable standards of service. It also ordered that further hearings be had to receive evidence relating to the adequacy of petitioner's service. A petition for rehearing was denied, and in this proceeding petitioner seeks to have the foregoing orders annulled on the grounds that it is not a public utility and that the commission therefore acted without jurisdiction.

The commission is a regulatory body of constitutional origin and derives its powers from the Constitution and the Legislature. People v. Western Airlines, 42 Cal.2d 621, 634, 268 P.2d 723. Unless petitioner is a public utility, as defined in the Constitution or the Public Utilities Code, the commission was without power to issue the orders in question. Article XII section 23 of the Constitution provides:

'Every private corporation, and every individual or association of individuals, owning, operating, managing, or controlling any * * * plant or equipment within this State, for * * * the transmission of telephone or telegraph messages, or for the production, generation, transmission, delivery or furnishing of heat, light, water or power * * * either directly or indirectly, to or for the public, and every common carrier, is hereby declared to be a public utility subject to such control and regulation by the * * * Commission as may be provided by the Legislature, and every class of private corporations, individuals, or associations of individuals hereafter declared by the Legislature to be public utilities shall likewise be subject to such control and regulation.' (Italics added.)

In section 216(a) of the Public Utilities Code the Legislature has declared that

"Public utility' includes every common carrier, toll bridge corporation, pipeline corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, wharfinger, warehouseman, and heat corporation, where the service is performed for or the commodity delivered to the public or any portion thereof.'

Although 'includes' is ordinarily not a word of limitation, People v. Western Airlines, 42 Cal.2d 621, 639, 268 P.2d 723, a legislative declaration that 'public utility' includes those performing certain enumerated services is not a declaration that those performing other services, not encompassed by the services enumerated, are public utilities. In People v. Western Airlines, supra, on which the commission relies, we were concerned with the scope of a business activity declared by the Legislature to be a public utility, not with the question of expanding that section to embrace additional classes of business not mentioned in the section. Thus, unless a community television antenna falls within one of the enumerated classes of public utilities, the commission has no jurisdiction over it.

The only classes enumerated that could conceivably include petitioner are electrical corporation, telephone corporation, or telegraph corporation. The commission held that it could make no finding that petitioner is an electrical corporation, ¹ since there is nothing in the record to show that its community television antenna system is used '* * * in connection with or to facilitate the production, generation, transmission, delivery, or furnishing of electricity for light, heat, or power, * * *.' Nor did it find that petitioner is a telegraph corporation. ² See Sunset Telephone & Telegraph Co. v. Pasadena, 161 Cal. 265, 276-277, 118 P. 796; City of Richmond v. Southern Bell Telephone & Telegraph Co., 174 U.S. 761, 773-777, 19 S.Ct. 778, 43 L.Ed. 1162. It did find, however, that petitioner operates as a telephone corporation ³ and is therefore subject to its jurisdiction.

To be a telephone corporation petitioner must operate a telephone line. Pub.Util.Code, § 234. Although it may control, operate, or manage 'conduits, ducts, poles, wires, cables, instruments, and appliances * * * real estate, fixtures, and personal property' Pub.Util.Code, § 233, and do so 'in connection with or to facilitate communication' Ibid., it does not operate a telephone line and is therefore not a telephone corporation unless such control, operation, or management are in connection with or to facilitate communication 'by telephone.' Ibid. The crucial word 'telephone' is not defined in the code. Neither is the word 'telegraph' as used in section 235. Yet the Legislature apparently regarded telephone and telegraph corporations as different from each other by providing separately for each, and this court has so regarded them. Sunset Telephone & Telegraph Co. v. Pasadena, supra, 161 Cal. 265, 276-277, 118 P. 796; see also Richmond v. Southern Bell Telephone & Telegraph Co., supra, 174 U.S. 761, 773-777, 19 S.Ct. 778. Nor is there any evidence in the record as to activities, methods of operation, services, or anything else they may have in common on which a conclusion can be based that one also means the other or that either also means radio or television corporation. In common unstanding telephone, telegraph, radio, and television corporations are each different from the other, and until the Legislature otherwise provides we must so regard them.

In Pacific Telephone & Telegraph Company v. Los Angeles, 44 Cal.2d 272, 281-283, 282 P.2d 36, on which the commission relies, the city attacked a declaration in a judgment that Pacific was entitled to use its lines to transmit telephone messages, telegraph message, teletypewriter messages, telephotographs, program services (including radio...