Atwood Resources, Inc. v. Public Utilities CommissionAtwood Resources, Inc. v. Public Utilities Commission
Appellant presents eight propositions of law. Two relate to a matter not properly before us, and
In its first two propositions of law, Atwood essentially argues that Columbia’s complaint fails to satisfy the requirements of
“Upon complaint in writing against any public utility by any person, firm, or corporation, or upon the initiative or complaint ■ of the public utilities commission, that any rate, fare, charge, toll, rental, schedule, classification, or service, or any joint rate, fare, сharge, toll, rental, schedule, classification, or service rendered, charged, demanded, or exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation оf law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained, and, upon complaint of a public utility as to any matter affecting its own product or service, if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing * * * >>
Atwood first argues that
Second, Atwood argues that the commission has no authority to consider complaints between public utilities. Appellant implies that Columbia could only maintain an action against it if
Atwood next challenges Columbia’s standing on the basis that it suffered no actual damages because Simonds and Kurz-Kasch allegedly paid the minimum charge obligations under their agreements with Columbia. Whether these consumers fulfilled their contractual requirements, if any, is irrelevant. Here, the alleged damage pertains to economic loss to a regulated public utility and its consumers from sales displaced as a result of a natural gas producer’s unregulated activities. This type of direct effect on a public utility’s sales in a given area is sufficient to confer appellate standing (see East Ohio Gas Co. v. Pub. Util. Comm. [1988],
Last, appellant argues thаt economic injury resulting from lawful competition cannot, in and of itself, confer standing on a damaged business to question the legality of its competitors’ operations unless the underlying statute or regulatory scheme is intended to protect the interest of a competitor. Sеe Hardin v. Kentucky Utilities Co. (1968),
In Hardin, supra, the damaged private utility had no explicit statutory provision on which to rely for purposes of standing. Therefore, it was necessary for the United States Supreme Court to infer, from the area limitation contained in Section 15d of the Tennessee Valley Authority Act, that respondent came within the class the legislation was designed to protect. Here, it is unnecessary to look beyond the face of
In Dayton Communications Corp., supra, we upheld the commission’s refusal to consider the claims of a private telephone system supplier. We reasoned that under the terms set forth in
But, where a complaint alleges that a public utility is charging premium access rates while providing inferior access services, we have held that it was error for the commission to dismiss the action, regardless that it was brought by a competitor. See Allnet Communications Services, Inc. v. Pub. Util. Comm. (1988),
Here, as in Allnet, supra, the complained-of conduct relates to a matter that is properly subject to regulatory control through the complaint proceeding. Whether a natural gas produсer’s activities constitute those of a public utility, whether it has complied with the applicable laws, and whether it should be subject to regulation, are questions that the commission has authority to determine under
Columbia having alleged a matter affecting its own product or servicе, and having set forth reasonable grounds as required by
In its third proposition of law, Atwood argues that the contracts with Simonds and Kurz-Kasch are private in nature and, therefore, beyond the jurisdiction of the commission. In support of this argument, it cites Kemme v. Cincinnati Gas & Elec. Co. (Dec. 22, 1982), PUCO No. 82-1362-GA-CSS. This case is readily distinguished.
In Kemme, a complaint was brought by two individuals alleging
Here, the activities of Atwood do come within the commission’s jurisdiction. Moreover, because the provisions of the state and fеderal Constitutions, prohibiting laws impairing the obligation of contracts, do not affect the police power, Atwood’s “private endeavors” are subject to regulation. See, e.g., Benjamin v. Columbus (1957),
In its fourth proposition of law appellant contends that the commission must identify a real аnd substantial relation to the public health, safety, morals or general welfare before it can subordinate a private contract to regulation. However, this is not a question that is committed to the commission.
As we stated in Benjamin, supra, at paragraph six of the syllabus: “Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the lеgislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.”
Nothing on the record before us suggests that it is unduly burdensome, or otherwise clearly erroneous, for the legislature to subject to regulation producers that are in thе business of supplying natural gas to consumers and are thus “public utilities,” as defined by law.
Atwood argues through its fifth proposition of law that it is an unconstitutional impairment of the obligation of contracts, and through its sixth proposition of law that it is an unreasonable and an arbitrary exercisе of the police power, for the commission to require that exempt producers notify the commission so that it may dispute whether exempt status is within the public interest. These propositions apparently relate to certain notification procedures approved by the commission in an earlier proceeding, In re Application of East Ohio Gas Co. Requesting Uniform Public Utility Treatment of Sales of Natural Gas to Customers (Oct. 9, 1984), PUCO No. 83-1076-GA-UNC.
No reference to this notification procedure, or to PUCO No. 83-1076-GA-UNC, appears in Atwood’s applicatiоn for a rehearing. Having failed to meet the requirements of
Additionally, we note that merely because Atwood has elevated a question to constitutional proportions, it does not necessarily follow that the matter may be raised initially in this court. Where, as here, extrinsic facts are required to properly resolve the issue, error must be specified at the first available opportunity. See Cleveland Gear Co. v. Limbach (1988),
Through its seventh proposition of law, Atwood argues that the character of its business is not that of a public utility. We disagree.
In 1986,
Further, in 1941, the legislature amended G.C. 614-2, now
The uncontroverted facts establish that Atwood directly supplied Simonds and Kurz-Kasch with substantial volumes of naturаl gas monthly over an extended period of time. As an example, Columbia points to one approximate six-month period in which appellant billed these end-users for in excess of 23,000 Mcf of natural gas. Given the sizeable and recurring nature of these transactions, we conclude, as did the commission, that under any ordinary definition Atwood is in the business of supplying natural gas to consumers.
Even though its activities place it squarely within the statutory definition of a “natural gas company,” appellant contends that is is not affected with a public interest and, therefore, is not a public utility. To be affected with а public interest, appellant reasons that it must serve a substantial enough part of the public to be of public concern. This is simply another way of saying that it is not “in the business”
Appellant alsо argues that there must be a voluntary dedication, or some holding out, to serve the public generally before it can be affected with a public interest. “* * * Yet it is not a controlling factor that the corporation supplying service does not hold itself out to serve the publiс generally.” Industrial Gas Co. v. Pub. Util. Comm. (1939),
“The true interpretation of the court’s language is claimed to be that only property voluntarily devoted to a known public use is subject to regulation as to rates. But obviously Munn and Scott had not voluntarily dedicatеd their business to a public use. They intended only to conduct it as private citizens, and they insisted that they had done nothing which gave the public an interest in their transactions or conferred any right of regulation. The statement that one has dedicated his property to a public use is, thеrefore, merely another way of saying that if one embarks in a business which public interest demands shall be regulated, he must know regulation will ensue.
“* * * The phrase ‘affected with a public interest’ can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good.* * *”3
The General Assembly has determined that “producers,” defined as a gas or a natural gas company under
Through its final proposition of law, Atwood contends that the commission failed to consider and to address the various criteria that are set forth in Industrial Gas, supra. However, from a review of the order below, it is apparent that the commission did take these guidelines under consideration and did take into account the facts peculiar to appellant. In no instance is the determination of the commission manifestly against the weight of the evidence or sо clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty. See, e.g., Columbus v. Pub. Util. Comm. (1979),
We conclude that Atwood is a “natural gas company” and a “public utility” within the meaning of
Order affirmed.
Notes
“After any order has been made by the public utilities commission, any party who has entered an appearance in person or by counsel in the proceeding may apply for a rehearing in respect to any matters determined in said proceeding.
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“Such application shall be in writing and shall set forth specifically the ground or*101 grounds on which the applicant considers said order to be unreasonable or unlawful. No party shall in any court urge or rely on any ground for reversal, vacation, or modification not so set forth in said application. ” (Emphasis added.)
For a discussion of the reasoning behind regulation of the natural gas industry, see Orndoff v. Pub. Util. Comm. (1939),