MobileComm of Tennessee, Inc. v. Tennessee Public Service Commission

876 S.W.2d 101, 1993 Tenn. App. LEXIS 787
CourtCourt of Appeals of Tennessee
DecidedDecember 22, 1993
StatusPublished
Cited by17 cases

This text of 876 S.W.2d 101 (MobileComm of Tennessee, Inc. v. Tennessee Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MobileComm of Tennessee, Inc. v. Tennessee Public Service Commission, 876 S.W.2d 101, 1993 Tenn. App. LEXIS 787 (Tenn. Ct. App. 1993).

Opinion

OPINION

LEWIS, Judge.

Petitioner, MobileComm of Tennessee, Inc. (MobileComm), appeals from the decision of the Tennessee Public Service Commission (Commission), denying it a certificate of public convenience and necessity and granting the certificate to Deaderick Paging Company, Inc. (Deaderick), to operate as a radio common carrier in the Knoxville, Tennessee market.

THE CASE.

MobileComm filed its petition to serve the Knoxville, Tennessee market and the Kings-port, Johnson City, and Bristol (Tri-Cities), Tennessee market on 24 October 1991. Deaderick filed its petition on 11 June 1992. The two petitions were consolidated for hearing on 23 June 1992.

The issue before the administrative law judge (ALJ), was whether the public interest would be best served by granting the certificate of public convenience and necessity to MobileComm or whether it would be best served by granting it to Deaderick.

The Tennessee General Assembly has declared: “In determining whether a certificate shall be issued, the commission shall take into consideration, among other things, the public need for the proposed service or acquisition, the suitability of the applicant, the financial responsibility of the applicant, the ability of the applicant to perform efficiently the service for which authority is requested.” Tenn.Code Ann. § 65-30-105(e) (1993).

Following the hearing before the ALJ, an initial order was entered on 23 October 1992 which granted MobileComm a certificate of public convenience and necessity to operate as a radio common carrier in the Knoxville and Tri-Cities markets. Deaderick filed exceptions to the ALJ’s initial order and MobileComm filed its reply. The Commission considered the matter on 1 December 1992 and affirmed the ALJ’s grant of the [103]*103Tri-Cities market to MobileComm, but reversed his order as to Knoxville and awarded the Knoxville, Tennessee authority to Dead-erick.

MobileComm argues that the Commission’s decision to reverse the ALJ and award the certificate of public convenience and necessity to Deaderick for the Knoxville market was unsupported by the evidence presented at the hearing and that the decision was arbitrary and capricious in light of the evidence presented in the petitions and at the hearing.

MobileComm is a Tennessee Corporation with its principal place of business in Nashville, Davidson County, Tennessee. Mobile-Comm and its predecessor have provided continuous service in the Nashville area since 1979. MobileComm acquired its predecessor in 1983. Two of MobileComm’s sister corporations, MobileComm of Memphis, Inc. and Telpage of Tennessee, Inc., have provided services as radio common carriers in the Memphis and Chattanooga areas.

Deaderick is a corporation owned 65% by Richard 0. Deaderick, Jr. and 35% by Richard 0. Deaderick, Sr. These two individuals also own Mid-South Paging Network, Inc., a private carrier paging company operating in the Nashville area, that has grown in a few months of operation to 750 customers who use 1700 paging units. Mid-South is to be consolidated with Deaderick Paging Co., when and if the grant of authority to Deader-ick for the Nashville market is completed.

Tennessee MobilePhone was a family business operated by the Deadericks that provided paging service in the Knoxville area for many years. Following the sale of the business to Dial Page in 1985, Mr. Deaderick, Jr. worked for Dial Page as District Manager of the Knoxville and Tri-Cities markets.

The Deadericks contend they placed their emphasis on customer service. They further contend they invested in the best systems available, hired good people, educated their customers, and listened to their customers so they could be in tune with the customers’ needs and wants.

Deaderick proposed in its application to the Public Service Commission, a state-of-the-art system with eleven initial transmitter sites, and the possibility of twelve, to serve the market area in competition with Dial Page, the existing paging company. Dial Page has in place fifteen transmitters to serve the area.

MobileComm proposed to serve the area with six transmitters. There is evidence in the record before the Commission that six transmitters, as preferred by MobileComm, would not provide sufficient territorial coverage to allow it to compete with Dial Page. Customers in the Knoxville area have been treated to wide territorial coverage through the years by Dial Page and by its predecessor, Tennessee MobilePhone, and wide area coverage is an important factor to the customers in the Knoxville area.

The system proposed by Deaderick would offer customers basic tone alert paging, voice paging, numeric display and alphanumeric display, and a wide range of other enhanced service features.

In support of their petition, Deaderick filed with the Commission, the financial statements of Deadericks, Sr. and Jr. and a letter of intent from Third National Bank, expressing willingness to lend money to the Deadericks for the installation of the service.

The Commission’s expert witness on the issue of financial responsibility concluded that both Deaderick and MobileComm were financially able to serve the Knoxville and Tri-Cities markets.

MobileComm has presented the following two issues which we will address together: 1) “Whether the Tennessee Public Service Commission’s decision to grant a certificate of public convenience and necessity to Dead-erick Paging Company, Inc. for the Knoxville, Tennessee market was unsupported by evidence which is both substantial and material in light of the entire record,” and 2) “Whether the Tennessee Public Service Commission’s decision to grant a certificate of public convenience and necessity to Dead-erick Paging Company, Inc. for the Knoxville, Tennessee market was arbitrary or capricious or characterized by an abuse of discretion or clearly an unwarranted exercise of discretion in light of the entire record.”

[104]*104This court, upon review of the agency’s decision, may reverse or modify the decision of the agency if:

the rights of the petitioner have been prejudiced because the [agency’s] findings, inferences, conclusions or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(5) Unsupported by evidence which is both substantial and material in the light of the entire record.

Tenn.Code Ann. § 4-5-322(h) (1991).

This court may not substitute its judgment for that of the agency in reviewing the evidence. However, the substantial and material evidence standard “requires a searching and careful inquiry and subjects the agency’s decision to close scrutiny.” National Council on Compensation Ins. v. Gaddis, 786 S.W.2d 240, 242 (Tenn.App.1989).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shahnaz Poursaied v. Tennessee Board of Nursing
Court of Appeals of Tennessee, 2021
Anthony Chatman v. City of Chattanooga
Court of Appeals of Tennessee, 2006
Richard Feldman v. Board of Medical Examiners
Court of Appeals of Tennessee, 2003
James E. Johnson v. Bd. of Medical Examiners
Court of Appeals of Tennessee, 2002
Robert Chagrasulis v. Board of Medical Examiners
Court of Appeals of Tennessee, 2002
Martin v. Sizemore
78 S.W.3d 249 (Court of Appeals of Tennessee, 2001)
Tony Willis v. Dept of Correction
Court of Appeals of Tennessee, 2001
South v. Tennessee Board of Paroles
946 S.W.2d 310 (Court of Appeals of Tennessee, 1996)
Thomas Tarpley v. Charles Traughber, Chairman, Tennessee Board of Paroles
944 S.W.2d 394 (Court of Appeals of Tennessee, 1996)
Jackson Mobilphone Co. v. Tennessee Public Service Comm.
876 S.W.2d 106 (Court of Appeals of Tennessee, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
876 S.W.2d 101, 1993 Tenn. App. LEXIS 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mobilecomm-of-tennessee-inc-v-tennessee-public-service-commission-tennctapp-1993.