Dayton Communications Corp. v. Public Utilities Commission

414 N.E.2d 1051, 64 Ohio St. 2d 302, 18 Ohio Op. 3d 478, 1980 Ohio LEXIS 881
CourtOhio Supreme Court
DecidedDecember 30, 1980
DocketNo. 80-512
StatusPublished
Cited by18 cases

This text of 414 N.E.2d 1051 (Dayton Communications Corp. 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
Dayton Communications Corp. v. Public Utilities Commission, 414 N.E.2d 1051, 64 Ohio St. 2d 302, 18 Ohio Op. 3d 478, 1980 Ohio LEXIS 881 (Ohio 1980).

Opinion

Per Curiam.

I.

Appellants argue that the interior wire and cable are fixtures and permanent accessions to the freehold. They deny that Ohio Bell, through its tariff,1 has a legitimate claim of ownership of the wire and cable installed by it.

Appellants thus assert a claim of ownership grounded in the common law of property allegedly superior to the claim of Ohio Bell. However, the commission has no authority to adjudicate competing claims of property ownership. Such a function is constitutionally reserved to the judiciary. Section 1, Article IV of the Ohio Constitution. The commission does not [304]*304possess judicial power and may not adjudicate controversies between parties as to property rights. New Bremen v. Pub. Util. Comm. (1921), 103 Ohio St. 23; State, ex rel. Dayton Power & Light Co., v. Riley (1978), 53 Ohio St. 2d 168. The commission properly recognized its lack of jurisdiction to adjudicate or recognize Big Hill and Imperial House’s claims of ownership of the telephone wire and cable installed within their buildings.

II.

Appellants argue that the interior wire and cables installed in their motels are analogous to aerial telephone cable, such as runs from pole to pole throughout the countryside. Aerial cable costs, plus a reasonable return, are recovered by Ohio Bell through rates charged pursuant to its Exchange Rate Tariff.2 Appellants contend that Ohio Bell must allow use of the interior wire and cable in their privately owned buildings as a necessary component of its duty to provide access to the general local and long-distance network. Correspondingly, they argue that subscribers who own such wire and cable are entitled to a reduction of charges assessed through the Exchange Rate Tariff.

Ohio Bell contends that, historically, only costs attributable to equipment extending as far as a customer’s main station (here, to the PBX terminals) have been recovered through the Exchange Rate Tariff. It argues that the costs attributable to the in-place wire and cable are recovered through the General Exchange Tariff, as are the costs of other equipment necessary to provide extension service where chosen by a subscriber.

The commission found that the appellants failed to prove that Ohio Bell recovered its costs and an appropriate return for in-place wire and cable through charges established by the Exchange Rate Tariff. It thus rejected appellants’ contention that Ohio Bell may not demand additional compensation for [305]*305the use of the interior wire where subscribers replace Bell-provided extension service with privately-owned systems.

We are unable to find that the commission acted unlawfully or unreasonably in so finding. Rather, we believe that a contrary finding, i.e., that interior wire must be provided by Ohio Bell free of additional charge despite attachment of privately owned equipment at either end of such wiring, would be strained at best.

III.

Appellants argued before the commission that Ohio Bell’s policy of refusing to quote a price for sale of in-place wire and cable until after the execution of a contract for purchase and installation of a privately owned system is unjust and unreasonable. Furthermore, they alleged that Ohio Bell’s asking prices for sale of such wiring have been double and triple fair market value and, thus, unreasonably high.

Appellants claim that the commission erred in determining that it had no jurisdiction under R. C. 4905.26 to issue orders dealing with the sale of in-place wiring.

R. C. 4905.26, pursuant to which appellants filed their complaint before the commission, provides, in part:

“Upon complaint in writing against any public utility by any person, firm, or corporation,***that any rate, fare, charge, toll, rental, schedule, classification, or service*** rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, * * *if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing***.” (Emphasis added.)

R. C. 4905.37 provides, in part: [306]*306commission shall determine the regulations, practices and service to be installed, observed, used, and rendered, and shall fix and prescribe them by order to be served upon the public utility.***” (Emphasis added.)

[305]*305“Whenever the public utilities commission is of the opinion, after hearing had upon complaint, served as provided in section 4905.26 of the Revised Code, that the rules, regulations, measurements, or practices of any public utility with respect to its public service are unjust or unreasonable* * *the

[306]*306Ohio Bell claims, and the commission held, that commission jurisdiction under R. C. 4905.26 is contingent upon a complaint against a telephone company relating to telephone services. The commission found that sale of interior cable and wire is not subject to regulatory control through the complaint procedure, because, in the event that a subscriber replaces a Bell-provided PBX system with a privately-owned system, such in-place wire no longer is related to a Bell-provided telephone “service.”

In recent years certain areas of the telecommunications industry have been, to varying degrees, “deregulated.” Since 1968, for example, consumers have had available to them the option of purchasing their own telephone equipment for connection to the local and long-distance network, in lieu of using utility-owned equipment.3

As a result telephone companies such as Ohio Bell have found themselves to be operating in two markets, one monopolistic and one competitive, and the line between telephone company activities which are properly subject to public regulation and those which are not has become blurred. Where a company acts in its publicly-sanctioned monopolistic capacity, public regulation is appropriate in order to protect against utility overreaching.4 Where, however, a public utility’s activities take place in an open market, the elements of competition are, at least theoretically, sufficient to protect the public interest.

We are not unaware of the fact that Ohio Bell’s superior bargaining position in “negotiating” a sales price for sale of in-place wiring5 to its customers is directly attributable to its historic monopolistic position. (When these motels were con[307]*307structed, only Ohio Bell, pursuant to tariff, was authorized to install the wire which its customers now seek to own.)

However, this court has consistently recognized that the Public Utilities Commission is a creature of the General Assembly and may exercise no jurisdiction beyond that conferred by statute. Penn Central Transportation Co. v. Pub. Util. Comm. (1973), 35 Ohio St. 2d 97.

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Bluebook (online)
414 N.E.2d 1051, 64 Ohio St. 2d 302, 18 Ohio Op. 3d 478, 1980 Ohio LEXIS 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dayton-communications-corp-v-public-utilities-commission-ohio-1980.