Radio Communications, Inc. v. Public Service Commission

441 A.2d 346, 50 Md. App. 422, 1982 Md. App. LEXIS 261
CourtCourt of Special Appeals of Maryland
DecidedJanuary 7, 1982
DocketNo. 326
StatusPublished
Cited by3 cases

This text of 441 A.2d 346 (Radio Communications, Inc. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Radio Communications, Inc. v. Public Service Commission, 441 A.2d 346, 50 Md. App. 422, 1982 Md. App. LEXIS 261 (Md. Ct. App. 1982).

Opinion

Liss, J.,

delivered the opinion of the Court.

In 1971 the General Assembly of Maryland adopted an act designated as Chapter 543 of the Laws of Maryland which amended the Public Service Commission (hereinafter PSC) law to bring within the PSC’s jurisdiction all radio common carriers. Maryland Code (1957, 1980 Repl. Vol.) Art. 78, § 55A subsection (b) of the Act contains a "grandfather” clause which provides for the certification of all radio common carriers operating and licensed by the Federal Communications Commission (FCC) on July 1, 1971. Radio common carriers which provided mobile radio communication by either verbal radio contact or signal had previously been licensed only by the FCC. Upon qualification as a public service carrier, and upon application within ninety days of the effective date of the statute, all then operating carriers were authorized under the "grandfather” clause of the Act to continue their operation in the territory "professed to be served” on July 1, 1971. Distinguished from the position of the "grandfather” operators, any "proposed” radio common carrier which sought to operate in any of the "grandfather” territories or to extend its service into the established area of an existing certificated carrier was prohibited absent a [424]*424showing and determination that the existing service was "inadequate to meet the reasonable needs of the public.” See Maryland Code, Art. 78, § 55A (d).

At the time of the enactment of § 55A there were six radio common carriers operating in Maryland, namely: Carl G. Smith d/b/a Smith Communications Service (SCS), predecessor in interest to one of the appellees herein, Hawkins Communications, Inc. (HCI); the appellant herein, Radio Communications, Inc. (RCI); American Radio-Telephone Services, Inc.; Contact, Inc.; Betty Bowen, d/b/a Salisbury Answering Service; and Modern Communications. All of the above named carriers duly filed applications for "grandfather” status pursuant to subsection (b) of the Act.

In its application filed on September 30,1971, SCS stated that it was "engaged in the operation of a radio common carrier system in the City of Baltimore and the counties of Baltimore, Anne Arundel, Howard, Harford and Carroll.” In an amended application filed beyond the statutory deadline of ninety days, SCS included a map indicating service to Baltimore City, the five original counties above mentioned, and four additional counties. RCI filed for a certificate in Baltimore City and twenty counties.

The PSC elected to conduct individual hearings on each of the six "grandfather” applications. In the course of the hearing on SCS’s application, the PSC received testimony from several witnesses, including one John E. Dettra, Jr., a radio engineer. He stated that the "reliable service area” of a radio common carrier was the area in which service is expected to have not less than a 90% reliability as plotted by a contour line known as 37 dbu (decibel units). RCI, in opposition to the testimony of Dettra, took the position that the 37 dbu contour was too restrictive and not supported by the language of the statute. The Commission ultimately adopted the "reliable service area” test advanced by Mr. Dettra in awarding all six "grandfather” certificates of necessity and convenience. SCS was awarded a certificate to serve Baltimore City and portions of Baltimore County, Anne Arundel County and Howard County.

[425]*425RCI took exception to the PSC’s ruling and noted an appeal. The dispute between RCI and its four principal competitors was eventually resolved by the Court of Appeals in Radio Communications, Inc. v. Public Service Commission of Maryland, 271 Md. 82, 314 A.2d 118 (1974). In weighing the respective contentions of RCI and SCS as to the test to be applied in determining "grandfather” rights under the statute, the Court of Appeals concluded:

We read subsection (b) to say that those who assert "grandfather” status cannot obtain certification by merely "professing to serve” a given area or county. Subsection (b) provides for certification of a radio common carrier "engaged in the operation of any radio common carrier system . . . .” By obtaining certification, a carrier is expected ". . .to continue the operation ... in the territory professed to be served. . . .” (emphasis added). Thus, when the application of a subsection (b) radio common carrier professing to have served an area is challenged, that carrier must then prove that, in fact, it did serve that area, i.e., that on July 1, 1971, it was "engaged in the operation” of a radio common carrier system in each subdivision for which certification is sought. [Emphasis in original.] 271 Md. at 95-96.

As the territory claimed by RCI was arguably greater than had been allowed by the PSC, the intermediate standard adopted by the Court of Appeals, the case was remanded to the Commission for further proceedings in order for the PSC to determine the area actually being served by RCI at the time of the adoption of the grandfather clause. The events following remand were detailed in this Court’s opinion in American Radio-Telephone Service, Inc. v. Public Service Commission of Maryland, 33 Md. App. 423, 365 A.2d 314 (1976). Suffice it to say that this Court ultimately affirmed that RCI’s actual service area consisted of an area bounded by RCI’s interference contours, which included Baltimore City and all or portions of twenty of Maryland’s counties.

[426]*426Prior to the decisions in American Radio, supra, but subsequent to the original decision in RCI v. PSC, supra, SCS transferred substantially all of its assets, including its certificate of convenience and necessity, to HCI. Upon joint petition by SCS and HCI, the PSC, on July 9,1975, approved and authorized the transfer.

On March 11, 1976, HCI, as successor in interest to SCS, filed a petition with the PSC requesting the Commission (pursuant to the authority granted it by Section 85 (d) of Article 78), to correct the error of law incorporated in its order in the original case, i.e., the adoption of the erroneous standard for determining "grandfather rights” as determined by the Court of Appeals in Radio Communications, Inc., supra. HCI also requested the PSC to grant it a certificate of convenience and necessity for the continued operation of its radio common carrier system in the territory which Smith Communications professed to serve in its amended application filed on September 20, 1971.

Over the objection of RCI, the hearing examiner of the PSC ruled preliminarily that the prior testimony in the case established an actual service area as of 1971, bounded by Sherwood Forest on the south, Gaither on the west, Hampstead on the northwest and Bel Air on the northeast. The examiner also concluded that HCI succeeded to all of SCS’s "grandfather rights” and was entitled to exercise "whatever rights SCS have asserted under its certificate of convenience and necessity.”

Proof of the alleged actual service in 1971 was offered by way of prefiled written testimony of the witnesses who testified at the original hearing. In addition, HCI produced several witnesses, primarily employees and the accountant of Mr. Hoffberger, SCS’s principal customer in 1971.

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Bluebook (online)
441 A.2d 346, 50 Md. App. 422, 1982 Md. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/radio-communications-inc-v-public-service-commission-mdctspecapp-1982.