State Ex Rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co.

299 S.E.2d 763, 307 N.C. 541, 1983 N.C. LEXIS 1108
CourtSupreme Court of North Carolina
DecidedFebruary 8, 1983
Docket408A82
StatusPublished
Cited by52 cases

This text of 299 S.E.2d 763 (State Ex Rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Utilities Commission v. Southern Bell Telephone & Telegraph Co., 299 S.E.2d 763, 307 N.C. 541, 1983 N.C. LEXIS 1108 (N.C. 1983).

Opinions

COPELAND, Justice.

This appeal presents two issues for consideration:. (1) May the Commission through its ratemaking and supervisory authority include in Southern Bell’s operating expenses and revenues for ratemaking purposes those expenses, revenues and investments relating to its directory advertising operations (commonly referred to as the Yellow Pages)? We conclude that the Commission may include those expenses, revenues and investments, arising from directory advertising, in ratemaking proceedings. (2) Was the Court of Appeals incorrect in treating as moot Southern Bell’s [544]*544claim that the Commission’s determination granting a 13.5% rate of return on common equity is arbitrary, unreasonable and confiscatory in violation of our State and Federal Constitutions? Although the Court of Appeals was incorrect in determining that the fair rate of return issue was moot, the established rate of return on equity of 13.5% is not in violation of either the State or Federal Constitutions.

The first issue raised by the appellant, Southern Bell, concerns whether the Commission has the authority to include, in the Company’s operating statistics for the purpose of ratemaking, the investments, the costs and the revenues relating to Southern Bell’s directory advertising operation. Southern Bell vigorously argues that the Commission does not possess the necessary authority to include within the rate base the expenses and revenues from its directory advertising operation because that operation is not an essential part of the public utility function of providing telecommunications service. In support of this position Southern Bell points out that the actual transmission of messages across telephone lines does not rely on the yellow pages being available. Although Southern Bell is technically correct in its contention that actual transmission of messages across telephone lines is not dependent on the existence of the yellow pages, such an interpretation of the public utility function is far too narrow. Southern Bell’s utility function is to provide adequate service to its subscribers. To suggest that the mere transmission of messages across telephone lines is adequate telephone service is ludicrous.

We wish to point out that the yellow pages have never been and are not now regulated by the Utilities Commission. However, the fact that a specific activity of a utility is not regulated does not mean that the expenses and revenues from that activity cannot be included in determining the rate structure of the utility. In fact, the revenues and expenses from directory advertisements have historically been included in ratemaking determinations in this state.

The Supreme Court of New Mexico was recently faced with this very issue and concluded that the “revenues, expenses and investments related to directory advertising” should be included in rate determinations. Mountain States Telephone and Telegraph [545]*545Company v. Corporation Commission, 653 P. 2d 501, 506 (N.M. 1982). In addition to New Mexico, thirty states plus the District of Columbia include directory advertising revenues in ratemaking proceedings. 127 Cong. Rec. S11139-40 (Daily Ed. October 6, 1981).

It is true, as Southern Bell points out, that the Utilities Commission possesses only those powers granted it by the legislature. State ex rel Utilities Commission v. General Telephone Co., 281 N.C. 318, 189 S.E. 2d 705 (1972). Through G.S. 62-30 and G.S. 62-32 the legislature has granted the Commission “such general power and authority to supervise and control public utilities of the State as may be necessary. . . .” G.S. 62-30. “The Commission is hereby vested with all power necessary to require and compel any public utility to provide and furnish . . . reasonable service of the kind it undertakes to furnish and fix and regulate the reasonable rates and charges to be made for such service.” G.S. 62-32(b).

Although G.S. 62-30 and G.S. 62-32 appear to provide the Commission with ample authority to include directory advertising in ratemaking proceedings, Southern Bell argues that G.S. 62-3(23)d limits that authority by providing: “If any person conducting a public utility shall also conduct any enterprise not a public utility, such enterprise is not subject to the provisions of this Chapter.” § 62-3(23)d. In response to this contention we simply point out that the directory advertising operation of Southern Bell is not a separate enterprise from the transmission of telephone messages. The yellow pages are a very useful and beneficial component in providing telephone service to the public. In fact as Southern Bell points out on Page 137 in its February 1982, Raleigh, North Carolina Yellow Pages, “4 out of 5 [adults] Look in the Book.” On page 265 of that same book we find that every year the yellow pages are referred to “a total of almost 3.69 billion times.” Indeed, the yellow pages are more than a convenience to newcomers in town who need a doctor, lawyer, plumber, electrician or any number of services. Newcomers could not be expected to begin in the front of the alphabetical listings and search until they find the desired service. In fact Southern Bell uses that very situation to promote the sales of its advertisements, “Let newcomers get acquainted with you — Include all of your lines in these Yellow Pages.” P. 202 of 1982 Raleigh, North Carolina Yellow Pages.

[546]*546Southern Bell contends that since the yellow pages were not available in all of its exchanges until 1955, it must not be essential to adequate telephone service. However, the Commission, in discussing the evidence presented relating to this question, stated “The classified directory in which advertising appears, is an integral part of providing adequate telephone service.” “On the Appeal to the Superior Court the Commission’s findings of fact are conclusive and binding if they are supported by competent, material, and substantial evidence in view of the entire record.” State ex rel Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 454, 130 S.E. 2d 890, 894 (1963). There was ample evidence before the Commission to support the inclusion of the expenses and revenues from directory advertising in the ratemaking process.

Southern Bell further argues that inclusion of revenues and expenses from directory advertising is unfair in light of the competition it faces from newspapers, magazines, pamphlets and other classified directories. The Commission answered this contention by stating, “competitive pressures may eventually be a factor in the marketing of directory advertising by Southern Bell . . . however, based on the evidence presented there is presently no substantial competition posing a threat to Southern Bell’s advertising market in North Carolina.” We agree there is no real competition. In its areas of service Southern Bell commands an unmatchable position by being able to guarantee that every subscriber of telephone service will receive the advertisement since the Company is required to provide an alphabetical listing (white pages) to all of its telephone subscribers. In addition, unlike any competitor, Southern Bell is able to place those advertisements with or within the same book in which the required alphabetical listing is carried.

The result is clear. Southern Bell enjoys a great advantage over all competitors in the field of directory advertising. In addition, this preferred position with all its benefits and revenues is directly related to and a result of the Company’s public utility function.

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Bluebook (online)
299 S.E.2d 763, 307 N.C. 541, 1983 N.C. LEXIS 1108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-southern-bell-telephone-telegraph-nc-1983.