At&T Communications of Ohio, Inc. v. Public Utilities Commission

555 N.E.2d 288, 51 Ohio St. 3d 150, 1990 Ohio LEXIS 241
CourtOhio Supreme Court
DecidedMay 30, 1990
DocketNo. 89-903
StatusPublished
Cited by34 cases

This text of 555 N.E.2d 288 (At&T Communications of Ohio, Inc. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
At&T Communications of Ohio, Inc. v. Public Utilities Commission, 555 N.E.2d 288, 51 Ohio St. 3d 150, 1990 Ohio LEXIS 241 (Ohio 1990).

Opinion

Per Curiam.

AT&T and MCI first argue that GTE did not place the CCLC in issue because GTE did not apply to increase it and, furthermore, that the CCLC is not related to the rates which are the subject of the application. According to appellants, the commission could not have raised in issue the CCLC. We hold that the CCLC is related to the rates which are the subject of the instant application and that the commission could raise it.

In Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403, 71 O.O. 2d 393, 330 N.E. 2d 1, paragraph six of the syllabus, we stated:

“When considering an application for a rate increase filed by a public utility, the Public Utilities Commission may not extend its inquiry into matters not put in issue by the applicant and not related to the rates which are the subject of the application.”

In that case, CEI appealed from the commission’s order that, inter alia, eliminated certain fuel costs from CEI’s fuel adjustment clause. The commission had concluded that the scope of a general rate increase case included nearly all of CEI’s rules and regulations which in any manner could be applied in charging new rates. CEI, on the other hand, argued that it had not placed this change in tariffs in issue in the application and that it should not have the burden to support it.

[152]*152We agreed with the commission that R.C. 4909.19 permitted the commission to review an applicant’s rules and regulations which could in any manner be applied to charging new rates. However, we disagreed that the commission could inquire into matters not put in issue by the applicant and not related to the rates that were the subject of the application. We remanded the case without delineating which issues fell “* * * within the realm of the Company’s application or have an effect upon .the rates.” Id. at 420, 71 O.O. 2d at 403, 330 N.E. 2d at 13.

In Cleveland v. Pub. Util. Comm. (1980), 63 Ohio St. 2d 62, 66-67, 17 O.O. 3d 37, 40, 406 N.E. 2d 1370, 1375, we reviewed the Cleveland Elec. Illum. Co. holding. In Cleveland v. Pub. Util. Comm., we approved the commission’s inclusion of a flat customer charge in the utility’s residential rate schedule. The charge, first proposed by the commission staff, was intended to recover basic costs, irrespective of customer usage. The city of Cleveland argued that the commission should not have devised such a charge since it was unrelated to the rates in question.

We regarded this contention as untenable. We said, at 67, 17 O.O. 3d at 40, 406 N.E. 2d at 1375, “* * * [t]he costs recovered by this charge are part of the costs of providing electric service. While this component was previously built into the rate per volume, here appellee merely decided to allow CEI to recover it by way of a flat charge.”

Under these cases and R.C. 4909.15, which empowers the commission to determine just and reasonable rates and charges, the commission had authority to alter GTE’s rate structure and to increase the CCLC. The revenue derived from the CCLC helps satisfy GTE’s total revenue requirements, and these revenues pay GTE for supplying telephone service. Thus, the CCLC is related to the rates which are the subject of the instant application, and the commission could increase it.

Next, AT&T and MCI argue that GTE’s public notice, required to be published under R.C. 4909.19, failed to mention the CCLC. They argue that we should reverse the commission’s order. R.C. 4909.19 provides:

"Upon the filing of any application for increase provided for by section 4909.18 of the Revised Code the public utility shall forthwith publish the substance and prayer of such application, in a form approved by the public utilities commission, once a week for three consecutive weeks in a newspaper published and in general circulation throughout the territory in which such public utility operates and affected by the matters referred to in said application * * *.”

In Committee Against MRT v. Pub. Util. Comm. (1977), 52 Ohio St. 2d 231, 6 O.O. 3d 475, 371 N.E. 2d 547, Cincinnati Bell filed an application requesting that it be allowed to adopt a new rate plan, measured rate service. It detailed the service in an exhibit accompanying the application but failed to mention the service in the published notices, except for a general reference to the exhibits. The commission allowed Cincinnati Bell to experiment with this service in a designated area.

Thereafter, the Committee Against MRT, representing residential and business subscribers in the designated area, petitioned to intervene, requesting a rate hearing and a stay of execution. The committee alleged that Cincinnati Bell had not given proper notice of this service and, consequently, had denied the committee an opportunity to be heard. The commission denied the petition but [153]*153ordered an additional hearing to be held to discuss in which area Cincinnati Bell should conduct the experiment.

On appeal, we reasoned that subscribers could not have known of the innovative plan by reading the published notice, would not have had any reason to examine the exhibits, and would not have had any interest in the hearings. We held that, because of the insufficient notice, the committee was denied an opportunity to both present evidence opposing the selection of the experimental area and to challenge the new service itself. We concluded that Cincinnati Bell, thus, should have specifically mentioned its proposed service in the published notice.

However, we did not disallow the service, and we did not require further published notice. Instead, we ordered the commission to conduct a hearing on whether the service should be introduced into any area and on whether the designated area should be chosen for the experiment.

In Assn. of Realtors v. Pub. Util. Comm. (1979), 60 Ohio St. 2d 172, 14 O.O. 3d 409, 398 N.E. 2d 784, we approved the reasoning of Committee Against MRT. We remedied the lack of notice in Assn. of Realtors by ordering the commission to reissue appropriate notices and to conduct further hearings on the original application. However, we cautioned that the hearings were not to be de novo but were to be a continuation of the prior hearings. Furthermore, we stated that the commission’s order could be based upon the totality of the evidence adduced at both hearings.

In the instant case, GTE did not propose, in its application, to increase the CCLC; the CCLC increase, consequently, was not within the “substance and prayer” of the application. Thus, R.C. 4909.19 did not require GTE to mention this increase in the notice.

Nevertheless, the notice of application did state that intervening parties may make recommendations different from the. proposals in the application and that the commission may even adopt different recommendations. This language did notify the public that the commission could adjust rates not mentioned in the application.

Moreover, AT&T and MCI had knowledge that the commission could increase the CCLC. They had filed, at an early stage, to intervene. They both cited the commission’s March 12,1987 order in In Matter of Commission Investigation Relative to Establishment of Intrastate Access Charges, No.

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Cite This Page — Counsel Stack

Bluebook (online)
555 N.E.2d 288, 51 Ohio St. 3d 150, 1990 Ohio LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/att-communications-of-ohio-inc-v-public-utilities-commission-ohio-1990.