Matter of Mountain Bell

787 P.2d 423, 109 N.M. 504
CourtNew Mexico Supreme Court
DecidedFebruary 14, 1990
Docket17844
StatusPublished
Cited by6 cases

This text of 787 P.2d 423 (Matter of Mountain Bell) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Mountain Bell, 787 P.2d 423, 109 N.M. 504 (N.M. 1990).

Opinion

787 P.2d 423 (1990)
109 N.M. 504

In the Matter of a Petition by MOUNTAIN BELL for a Determination that Public Telephone Services are Subject to Competition.
The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a Colorado Corporation, Appellant,
v.
NEW MEXICO STATE CORPORATION COMMISSION, Appellee, and
MCI, Baca Valley Telephone Company, et al., Intervenors-Appellees.

No. 17844.

Supreme Court of New Mexico.

February 14, 1990.

*424 Patrick T. Ortiz, Albuquerque, Montgomery & Andrews, Tom Olson, Rod D. Baker, Santa Fe, for appellant.

Hal Stratton, Atty. Gen., Joseph van R. Clarke, Asst. Atty. Gen., Santa Fe, for appellee Corp. Com'n.

Levin & Vance, Richard H. Levin, Albuquerque, William Levis, Mark N. Jason, Denver, Colo., for intervenor MCI.

James J. Wechsler, Albuquerque, for intervenor Baca Valley Telephone Co., et al.

OPINION

SOSA, Chief Justice.

This proceeding arises under the New Mexico Telecommunications Act (the Act), NMSA 1978, Sections 63-9A-1 to -20 (Cum. Supp. 1988, now Repl.Pamp. 1989). The Mountain States Telephone and Telegraph Company, d/b/a U S West Communications (U S West), formerly Mountain Bell, appeals from an order of the New Mexico State Corporation Commission (the Commission) denying U S West's petition for detariffing public and semi-public telephone services, both coin and coinless[1]. The order was based on the Commission's determination that the services are not subject to effective competition as defined in the Act. After a public hearing, the Commission issued its final order and findings of fact and conclusions of law. We hold the order was reasonable and just and will be enforced.

Initially, we note the appeal is from the decision of an administrative agency and not a removal case as permitted by Article XI, Section 7 of the New Mexico Constitution. The Act permits review on the record made before the Commission and does not allow the introduction of new evidence addressed to any of the issues presented at the hearing. NMSA 1978, § 63-9A-16. Further, Section 63-9A-18 provides the supreme court with the authority only to affirm or annul and vacate the order, not to modify it.

Our review is limited to determining whether the agency acted within the scope of its authority, whether the order was supported by substantial evidence, whether the decision was made fraudulently, arbitrarily or capriciously, and whether there was an abuse of discretion or show of bias by the agency. Groendyke Transp., Inc. v. New Mexico State Corp. Comm'n, 101 N.M. 470, 476-77, 684 P.2d 1135, 1141-42 (1984). In making this determination, we employ the whole record standard of review. See id. at 477, 684 P.2d at 1142; Tallman v. ABF (Arkansas Best Freight), 108 N.M. 124, 767 P.2d 363 (Ct.App.), cert. denied, 109 N.M. 33, 781 P.2d 305 (1988). This standard has been discussed in National *425 Council on Compensation Insurance v. New Mexico State Corp. Commission, 107 N.M. 278, 756 P.2d 558 (1988).

In Duke City Lumber Co. v. New Mexico Environmental Improvement Board, 101 N.M. 291, 681 P.2d 717 (1984), this Court held that for purposes of reviewing administrative decisions the substantial evidence rule is expressly modified to include whole record review. Id. at 294, 681 P.2d at 720. Under whole record review, the court views the evidence in the light most favorable to the agency decision, Wolfley v. Real Estate Comm'n, 100 N.M. 187, 668 P.2d 303 (1983), but may not view favorable evidence with total disregard to contravening evidence. New Mexico Human Servs. Dep't v. Garcia, 94 N.M. 175, 608 P.2d 151 (1980).
To conclude that an administrative decision is supported by substantial evidence in the whole record, the court must be satisfied that the evidence demonstrates the reasonableness of the decision. No part of the evidence may be exclusively relied upon if it would be unreasonable to do so. The reviewing court needs to find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.

107 N.M. at 282, 756 P.2d at 562.

The following is a summary of the Commission's findings of fact pertinent to the issues on appeal. On August 12, 1987, U S West filed a petition requesting a determination that its public telephone services were subject to effective competition as defined in the Act, and for detariffing of the service. U S West requested that its entire New Mexico service area be considered the relevant market area, which consists of various wire centers and exchanges. Two witnesses for U S West pre-filed direct testimony and were cross-examined at the hearing held in March 1988.

One witness testified about competition and the other about the requested relief. The Commission found that "[U S West] witnesses testified that the heart of the issue of competition for Public Telephone Service is in the location of coin telephones." (Emphasis in original.) The witnesses further testified to the identity of coin-telephone equipment vendors serving various areas within the state and the availability of competing customer owned, coin-operated telephones (COCOTs) in certain wire centers. U S West introduced evidence concerning a decline in the number of public and semi-public coin telephones provided by it during 1984-87, and the corresponding growth in the number of competitive COCOTs. As of September 1987 there were 656 COCOTs served by U S West's public access lines (PAL)[2]. During cross-examination by the Commission, it was established that as of December 1987, U S West controlled 86% of the coin telephone market in the state with the remaining 14% controlled by the competitors.

The findings refer to Staff Exhibit # 2, contained in the record and prepared by U S West personnel for the Commission. The exhibit was found to demonstrate an absence of COCOTs in approximately twenty-one of the sixty-eight wire centers or exchanges, i.e., U S West is the exclusive supplier of public telephone services in these areas. Additionally, this exhibit showed that the high percentage of competitive public telephone service at three military installations in the state is attributable to federal contracts with A T & T. The Commission found that if these market segments were excluded from the total coin telephone market, U S West's relative share of the remaining coin telephone market would be greater than 86%, which, accordingly, results in a smaller share of the market represented by COCOTs.

Section 63-9A-17 places the burden on the appellant to show the unreasonableness or unlawfulness of the order. U S West contends the Commission's ruling lacks *426

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Bluebook (online)
787 P.2d 423, 109 N.M. 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mountain-bell-nm-1990.