State ex rel. Tel-Central of Jefferson City, Inc. v. Public Service Commission of Missouri

806 S.W.2d 432, 1991 Mo. App. LEXIS 199, 1991 WL 10111
CourtMissouri Court of Appeals
DecidedFebruary 5, 1991
DocketNo. WD 43397
StatusPublished
Cited by4 cases

This text of 806 S.W.2d 432 (State ex rel. Tel-Central of Jefferson City, Inc. v. Public Service Commission of Missouri) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Tel-Central of Jefferson City, Inc. v. Public Service Commission of Missouri, 806 S.W.2d 432, 1991 Mo. App. LEXIS 199, 1991 WL 10111 (Mo. Ct. App. 1991).

Opinion

TURNAGE, Judge.

Tel-Central of Jefferson City, Inc. filed a complaint with the Public Service Commission of Missouri against United Telephone of Missouri after United had suspended telephone service to Tel-Central. The Commission found the issues in favor of United and dismissed the complaint. On appeal the circuit court affirmed. Tel-Central contends that the Commission’s action was unlawful and unreasonable because there was no tariff authorizing suspension of service, because the notice of suspension was inadequate, and because there was no evidence to support a finding that Tel-Central had failed to carry its burden of proof that it was not indebted to United. Affirmed.

Tel-Central was authorized by the Commission to provide intrastate and interstate long distance telephone service. It purchases telephone service from United and resells telephone service to various customers. The dispute in this case arises over the Wide Area Telephone Service provided by United to Tel-Central for intrastate calls.

United charged Tel-Central for WATS services on a fixed monthly charge for each line supplied together with a variable charge determined by line usage. United billed Tel-Central monthly for both charges.

In March, 1986, Tel-Central received a series of special bills for past interstate and intrastate WATS service and later received additional special bills for interstate services. The total of the bills was $120,-771.86 with the intrastate portion being $35,899.35. The special bills were charges for services in August, 1984, and July through October, 1985. United said these bills were sent late because it had just received data revealing the unpaid amounts.

Following the receipt of the special bills Tel-Central disputed the fact that it owed United. For the next year United and Tel-Central communicated about the problem. At one point Tel-Central sent United a check for less than United claimed with a restrictive endorsement which stated that acceptance of the check constituted settlement in full for all money due United. United refused the check.

The matter came to a head on March 27, 1987, when United wrote Tel-Central demanding payment and informed Tel-Central that unless full payment of the bill was received within five days of the receipt of the letter WATS service would be suspended. After receipt of the letter Tel-Central wrote United restating its refusal to pay and again sent a check for less than United demanded with a restrictive endorsement. United again refused the check.

On April 7, 1987, United programmed its computer so that calls placed by Tel-Central customers received nothing but a dial tone, except they could dial 911. United [434]*434restored service to Tel-Central in June, 1987, after Tel-Central paid a part of the bill and provided a letter of credit. The filing of this complaint followed.

Tel-Central contends that United did not have a tariff which authorized it to suspend service to Tel-Central. Evidence before the Commission showed that in April, 1980, United filed a tariff with the Commission which concurred in and adopted the WATS tariff filed by Southwestern Bell as such tariff then existed or as it may be revised, added to or supplemented. The Bell tariff provided that upon nonpayment of any sum due, Bell could give notice in writing to the customer five days prior to the date of proposed discontinuance of service and could thereafter discontinue service. This tariff was filed in 1984.

The Commission found that United had concurred in the Bell tariff and under such tariff United was authorized to suspend service to Tel-Central for nonpayment of its bill upon the giving of five days notice. The Commission found that United had given Tel-Central five days written notice and was therefore authorized to discontinue service to Tel-Central.

Tel-Central argues that United did not have a tariff because the Commission is not authorized to allow one utility to concur in the tariff of another. Section 392.220.1, RSMo 1986, provides that every telephone corporation shall file with the Commission a schedule showing rates, rentals, and charges for service. That section further provides that the Commission shall have the power to prescribe the form of such schedule. The Commission has adopted 4 CSR 240-30.010(33), which prescribes the form to be used by a telephone corporation to concur in the schedule of another company.

The authority in § 392.220.1, to prescribe the form for a schedule or tariff, authorizes the Commission to allow one company to concur in the schedule or tariff of another. Rather than requiring a company to file the numerous pages in a tariff, it greatly simplifies the Commission’s task for one schedule to be filed and allow those companies who desire to concur therein to file concurrences. Certainly nothing in the statutes prohibits concurrence and the statutory authority to prescribe the form of a schedule is sufficient to allow the Commission to permit concurrence and to prescribe the form for filing concurrences.

The principal argument Tel-Central advances against the use of concurrences is based on the holding in State ex rel. Util. Consumers Council, Etc. v. P.S.C., 585 S.W.2d 41 (Mo. banc 1979). In that case the court held that a utility could not file a tariff with the Commission which contained an automatic fuel adjustment clause. The court held that the Commission must use the file and suspend method of rate making which requires the utility to file a tariff with proposed rates and the Commission to suspend such rates pending determination of whether to approve the same. Tel-Central argues that allowing a concurrence to be filed in a schedule or tariff and providing that the concurrence would apply to revised schedules to be filed in the future would be the same as an automatic fuel adjustment clause.

The flaw in this argument is that the Commission must approve the revised tariff so there is no change in a tariff which takes effect without Commission approval as there was in the automatic fuel adjustment clause. State ex rel. City of St. Louis v. Public Service Comm’n, 327 Mo. 318, 36 S.W.2d 947, 950(3) (1931). If the revised tariff is approved the concurrence will adopt the revision but if it is not approved, the concurrence does not accomplish any change.

Tel-Central concedes that United could provide by proper tariff for authority to discontinue service upon nonpayment of a bill. The same result has been reached when United concurred in the Bell tariff. The only difference is that United did not file as many sheets to accomplish the same result as Bell had filed to establish the tariff.

The Commission had authority to allow United to concur in the Bell tariff and therefore there was substantial evidence to support the finding that United had a tariff [435]*435authorizing the discontinuance of service to Tel-Central upon the nonpayment of its bill.

Tel-Central also contends that § 392.200.5, now § 392.200.6, RSMo (Supp. 1990), prohibits a telephone company from discontinuing service for nonpayment of a bill. That section provides:

Every telegraph corporation and telephone corporation operating in this state shall receive, transmit and deliver, without discrimination or delay, the conversations and messages of every other telegraph or telephone corporation with whose line a physical connection may have been made.

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806 S.W.2d 432, 1991 Mo. App. LEXIS 199, 1991 WL 10111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-tel-central-of-jefferson-city-inc-v-public-service-moctapp-1991.