Southern Bell Telephone & Telegraph Co. v. Public Service Commission

244 S.E.2d 278, 270 S.C. 590, 25 P.U.R.4th 1, 1978 S.C. LEXIS 437
CourtSupreme Court of South Carolina
DecidedApril 12, 1978
Docket20662
StatusPublished
Cited by29 cases

This text of 244 S.E.2d 278 (Southern Bell Telephone & Telegraph Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Bell Telephone & Telegraph Co. v. Public Service Commission, 244 S.E.2d 278, 270 S.C. 590, 25 P.U.R.4th 1, 1978 S.C. LEXIS 437 (S.C. 1978).

Opinions

Littlejohn, Justice.

Southern Bell Telephone and Telegraph Company (Southern Bell) 1, on July 1, 1976, made application to the South Carolina Public Service Commission (the Commission) for an increase in its monthly rates and charges for intrastate telecommunication services in South Carolina.2 The proposed rate adjustments were to become effective on August 1, 1976, and would have produced additional annual gross revenues for Southern Bell’s South Carolina operations 3 of $34,160,653.00, based upon the twelve month test period ending March 1, 1976. On July 7, 1976, the Commission ordered the proposed rates suspended for a period of six months from August 1, 1976 to February 1, 1977. Southern Bell, on July 16, 1976, filed an undertaking as permitted by § 58-9-550, Code of Laws of South Carolina (1976), and advised the Commission of its intent to place into effect $19,925,271.00 of the total proposed increase, subject to refund with interest at the statutory rate of 9%, should it ultimately be decided that any portion of the proposed increase placed into effect under bond was improper. This was done and these increased rates remain in effect pending the outcome of this appeal. Daniel R. McLeod, as [593]*593Attorney General of the State of South Carolina (the Attorney General), and Midlands Welfare Rights Organization intervened in opposition to the proposed rate increases.

After heárings on Southern Bell’s petition, the Commission issued its order denying all requested rate adjustments. The Commission specifically held that the proposed rates, which would produce a return on common equity (common stock) of 16.45%, and an overall rate of return on Southern Bell’s rate base of 11.29%, were unlawful and unreasonable. The Commission found that Southern Bell was earning 8.75% on common equity at the existing rates, which produced an overall rate of return on rate base of 7.73%. The Commission concluded that this return on the rate base was fair and reasonable, and that the return on common equity fell within a “zone of reasonableness” between 8% and 11%.

Thereafter, Southern Bell, pursuant to the provisions of § 58-9-1410 of the 1976 Code, commenced this action in the Court of Common Pleas for Richland County to vacate or set aside the Commission’s order on the ground that it was unlawful, unreasonable and unconstitutional.

Section 58-9-1440, Code of Laws of South Carolina, (1976), provides as follows:

“Orders of the Commission may be reviewed by the court of common pleas upon questions of both law and fact.”

Section 58-9-1450, Code of Laws of South Carolina, (1976), provides as follows:

“All orders of the Commission shall be deemed prima facie just and reasonable and in all actions and proceedings arising under this chapter or growing out of the exercise of the powers herein granted to the Commission the burden of proof shall be on the party attacking any order of the Commission to show that the order is unlawful or unreasonable.”

[594]*594The case came to be heard before the Honorable John Grimball, who, by his order dated March 31, 1977, reversed the Commission’s order in part and remanded the case for reconsideration on three comparatively minor issues. Although the circuit court held that Southern Bell had failed to establish specific error as to the fair rate of return, the court found that the Commission’s order contained error in three particulars: (1) the method of determination of the cost of short-term debt to Southern Bell; (2) the exclusion from the rate base of an expense to Southern Bell for annual wage increases; and (3) the exclusion of property held for future use from Southern Bell’s rate base.

Southern Bell appeals from the order of the circuit court insofar as it failed to find error in the determination of a fair rate of return. The Commission and the Attorney General appeal from the circuit court’s findings concerning the determination of Southern Bell’s proper rate base.

At the outset, we recite the scope of the court’s review of orders of the Public Service Commission: “In our consideration of the issues here presented the governing principle, well settled by many decisions of this Court, is that orders of the Public Service Commission issued under the powers and authority vested in it have the force and effect of law; that the Commission’s findings of fact are presumptively correct and its orders presumptively reasonable and valid; that this Court cannot substitute its judgment for that of the Commission upon a question as to which there is room for a difference of intelligent opinion; and that, therefore, an order of the Commission such as is here involved will not be set aside except upon a convincing showing that it is without evidence to support or that it embodies arbitrary or capricious action as a matter of law.” Chemical Leaman Tank Lines, Inc. v. South Carolina Public Service Commission, 258 S. C. 518, 189 S. E. (2d) 296 (1972).

We turn now to the specific questions raised by this appeal.

[595]*595FAIR RATE OF RETURN

Southern Bell charges error in the failure of the circuit court to conclude that the rates of return left intact by the Commission were unlawful, unreasonable and arbitrary. Southern Bell argues that the rates of return allowed by the Commission are so unreasonably low as to amount to confiscation, resulting in a taking of its property without due process of law. It is further argued that the rates of return were unsupported by substantial evidence, and that such low returns will not enable Southern Bell to preserve its financial integrity and attract new capital on reasonable terms. For these reasons, Southern Bell contends that the Commission’s findings regarding what constitutes a fair rate of return to Southern Bell were arbitrary and capricious.

It is generally stated that “the governing principle for determining rates to be charged by a public utility is the right of the public on one hand to be served at a reasonable charge, and the right of the utility on the other to a fair return on the value of its property used in the service.” 64 Am. Jur. (2d), Public Utilities, § 189.

The two leading cases from the United States Supreme Court setting forth the basic principles of utility rate regulation are Bluefield Water Works & Improvement Co. v. Public Service Commission of West Virginia, 262 U. S. 679, 43 S. Ct. 675, 67 L. Ed. 1176 (1923), and Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591, 64 S. Ct. 281, 88 L. Ed. 333 (1944). In Bluefield, the Court stated:

“What annual rate will constitute just compensation depends upon many circumstances, and must be determined by the exercise of a fair and enlightened judgment, having regard to all relevant facts. A public utility is entitled to such rates as will permit it to earn a return on the value of the property which it employs for the convenience of the public equal to that generally being made at the same time and in [596]*596the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties; but it has no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures.

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Cite This Page — Counsel Stack

Bluebook (online)
244 S.E.2d 278, 270 S.C. 590, 25 P.U.R.4th 1, 1978 S.C. LEXIS 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-bell-telephone-telegraph-co-v-public-service-commission-sc-1978.