United Cable Television Services Corp. v. Department of Public Utility Control

• Decision Date: 22 August 1995
• Docket Number: No. 15125,15125
• Court: Connecticut Supreme Court
• Parties: UNITED CABLE TELEVISION SERVICES CORPORATION v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

Page 1011

663 A.2d 1011

235 Conn. 334

UNITED CABLE TELEVISION SERVICES CORPORATION v. DEPARTMENT OF PUBLIC UTILITY CONTROL et al.

No. 15125.

Supreme Court of Connecticut.

Argued May 24, 1995.

Decided Aug. 22, 1995.

Robert P. Knickerbocker, Jr., Hartford, with whom, on the brief, was Paul N. Belval, Stamford, for appellant (plaintiff).

Tatiana D. Sypko, Asst. Atty. Gen., with whom were Robert S. Golden, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., for appellee (named defendant).

David Silverstone, with whom was William B. Heinrich, Hartford, for appellee (defendant The FiberVision Corp. of Greater Hartford).

Phyllis J. Trowbridge, Hartford, for appellee (defendant office of consumer counsel).

Before PETERS, C.J., and CALLAHAN, BORDEN, KATZ and PALMER, JJ.

CALLAHAN, Justice.

The plaintiff, United Cable Television Services Corporation, doing business as TCI Cablevision of Central Connecticut, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant, the department of public utility control (department), to grant the defendant, The FiberVision Corporation of Greater Hartford (FiberVision), a competing cable company, a certificate of public convenience and necessity. The plaintiff claims that the trial court improperly determined that: (1) the plaintiff, as the existing cable provider for the towns of Bloomfield, East Hartford, Hartford, Simsbury, West Hartford and Windsor (area no. 10), was not aggrieved by the granting of a certificate of public convenience and necessity by the department to a potential competitor in alleged violation of General Statutes § 16-331(b), (d) and (h), ¹ (2) although the plaintiff was aggrieved pursuant to § 16-331-(i), ² it is not entitled to review of all its claims on appeal; and (3) its claim pursuant to § 16-331(i) should be dismissed because of its failure to provide an adequate record. We are not persuaded by the plaintiff's arguments, and affirm the judgment of the trial court.

The record reveals the following undisputed facts. On July 8, 1993, FiberVision applied to the department for a certificate of public convenience and necessity pursuant to General Statutes § 16-331 and § 16-1-86 of the Regulations of Connecticut State Agencies. ³ The award of the certificate would allow FiberVision to overbuild ⁴ the plaintiff's franchise area and provide cable television service to those towns previously served only by the plaintiff. ⁵ The plaintiff requested and was granted party status in the application proceedings, to which the office of consumer counsel ⁶ and the state's attorney general were also parties.

Pursuant to a notice of hearing dated August 30, 1993, the department conducted public hearings on FiberVision's application on September 20, and October 7, 8 and 18, 1993. On January 20, 1994, the department distributed a draft decision. After providing all parties and intervenors a right to participate in oral argument concerning the draft decision, the department issued a final decision on February 16, 1994, granting FiberVision's application for a certificate of public convenience and necessity. ⁷

Pursuant to General Statutes §§ 16-35 and 4-183, ⁸ the plaintiff appealed to the trial court from the final decision of the department. FiberVision claimed, by way of a special defense, that the plaintiff was not aggrieved by the decision of the department and therefore lacked standing to pursue the appeal. The trial court dismissed the plaintiff's appeal, concluding that subject matter jurisdiction existed only as to the plaintiff's claims pursuant to § 16-331(i), because the plaintiff had been unable to establish aggrievement as to any of its other claims. The court then dismissed the plaintiff's claims pursuant to § 16-331(i) because the plaintiff had failed to present an adequate record for review. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

I

The plaintiff first claims that it was aggrieved by the department's granting of a certificate of public convenience and necessity to its potential competitor. "It is fundamental that appellate jurisdiction in administrative appeals is created only by statute and can be acquired and exercised only in the manner prescribed by statute." Munhall v. Inland Wetlands Commission, 221 Conn. 46, 50, 602 A.2d 566 (1992); see Charles Holdings, Ltd. v. Planning & Zoning Board of Appeals, 208 Conn. 476, 479, 544 A.2d 633 (1988). An appeal from an administrative decision of the department is governed by § 16-35 and the Uniform Administrative Procedure Act; General Statutes §§ 4-166 through 4-189. Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 635-36, 662 A.2d 1251 (1995); see Connecticut Light & Power Co. v. Dept. of Public Utility Control, 219 Conn. 51, 57, 591 A.2d 1231 (1991). ⁹

"Pleading and proof of aggrievement are prerequisites to a trial court's jurisdiction over the subject matter of an administrative appeal. Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). It is [therefore] fundamental that, in order to have standing to bring an administrative appeal, a person must be aggrieved. Connecticut Business & Industry [Industries] Assn., Inc. v. Commission on Hospitals & Health Care, 214 Conn. 726, 729, 573 A.2d 736 (1990); Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Standing [however] is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962); Stern v. Stern, 165 Conn. 190, 192, 332 A.2d 78 (1973).... Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 648-49, 556 A.2d 1020 (1989)." (Internal quotation marks omitted.) Light Rigging Co. v. Dept. of Public Utility Control, 219 Conn. 168, 172, 592 A.2d 386 (1991).

The test for aggrievement long recognized by this court is set forth in our decision in State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 524 A.2d 636 (1987). There we stated that "[t]he fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.... Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 47, 478 A.2d 601 (1984); Bakelaar v. West Haven, 193 Conn. 59, 65, 475 A.2d 283 (1984). Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected. O'Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953). Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980)." (Internal quotation marks omitted.) Id. at 299-300, 524 A.2d 636. "The determination of aggrievement presents a question of fact for the trial court and a plaintiff has the burden of proving that fact." Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978).

The trial court concluded that the plaintiff satisfied the first prong of the aggrievement test. The plaintiff demonstrated its specific personal and legal interest in the subject matter of the department's decision by alleging and proving to the trial court's satisfaction that it was a franchise holder in the area to which the contested franchise applies. Furthermore, the plaintiff's franchise is saleable and transferable and has substantial economic value. See General Statutes § 16-331(a). A party, however, must have more than merely a specific personal and legal interest in the subject matter in order to satisfy the aggrievement test. A party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law. See State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. at 300-301, 524 A.2d 636.

In the present case, the plaintiff's claimed injury arises from the allegedly harmful effect on its business that it claims will result from the introduction of a direct competitor into the cable television market in area no. 10. As a general rule, allegations "that a governmental action will result in competition harmful to the complainant's business would not be sufficient to qualify the complainant as an aggrieved person." (Emphasis added.) Id. at 301, 524 A.2d 636; see Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 426, 232 A.2d 330 (1967); Whitney Theatre Co. v. Zoning Board of Appeals, 150 Conn. 285, 288, 189 A.2d 396 (1963); London v. Planning & Zoning Commission, 149 Conn. 282, 284, 179 A.2d 614 (1962). We have carved out a limited exception to this rule, however, that will permit a finding of aggrievement if the proposed competition is unfair or illegal. State Medical Society v. Board of Examiners in Podiatry, supra, 203 Conn. at 302-303, 524 A.2d 636.

The plaintiff claims that it has been injured in that the competition proposed by FiberVision is illegal because the department granted a certificate of public convenience and necessity to FiberVision in violation of § 16-331. In Light Rigging Co. v. Dept. of Public...