*1 to show petitioner in the notice charges against outlined cause. practice suspended from petitioner It is ordered that commencing year period one in this law state days filing of order. after date 27, 1958.] June In Bank. No. 19722. F. [S. Corpora (a COMMUNICATIONS, INC. COMMERCIAL COM UTILITIES Petitioners, v. PUBLIC tion) al., et CALIFORNIA, Re OF THE STATE MISSION OF AND TELEGRAPH ; spondent TELEPHONE PACIFIC Party in Interest. (a Corporation), Real COMPANY 27, 1958.] In Bank. June F. No. 19723. [S. SYSTEMS, (a INC. Cor WATSON COMMUNICATIONS poration) al., Petitioners, v. et PUBLIC UTILITIES CALIFORNIA, OF THE STATE OF COMMISSION Respondent; PACIFIC AND TELE TELEPHONE (a Party Corporation), Real GRAPH COMPANY Interest. In June 27, 1958.] F. No. 19725. Bank.
[S. ANGELES, Petitioner, THE OF LOS CITY PUBLIC OF THE STATE UTILITIES COMMISSION OF CALI FORNIA, Respondent; PACIFIC TELEPHONE AND (a Corporation), Party COMPANY TELEGRAPH Real in Interest. *4 Petty McClean, Salisbury, MeClean, & Robert S.
McClean, Berol, Geernaert, R. Scheifiy, Bruce Berol E. Edward M. John Phleger Harrison, & Lowry, Brobeck, Silver, Robert N. & McGuire, Abel, Thomas Trautman, Brent M. B. H. Gerald Greene, & McCutchen, Thomas, Matthew, Griffiths Jerome Roger Sullivan, Foley, Hoag Eliot, A. & Preston, Jr., Lawrence Camp- Attorney (Los Angeles), and Alan G. Arnebergh,.City City Attorney, for Petitioners. bell, Assistant Albertson, Lohnes & John E. Joseph Keller, Dow, E. Brobeck, Petty McClean, Salisbury, & Scheifiy, MeClean, Harrison, Lowry, Robert Francis L. Cross Phleger N. & on behalf Petitioners. & Amici Curiae Brandt Cross Cassidy, Hugh Orr, B. McKeage, N. Roderick Everett C. Respondent. McCarthy J. H. and H. Lakusta Boris Eugene George, Sutro, Arthur T. M. & Pillsbury, Madison Dudley Zinke G. H. Marshall, A. Prince, N. Francis Party in Interest. for Real Eekhardt, Jr., *5 proceeding SHENK, J. This isa consolidated to review an order of the Public accepting, Utilities with Commission modi fications and directions, tariff schedule Number 108-T filed Telephone Telegraph Company, and hereinafter voluntarily called Pacific. The and schedule was filed covered leasing private the installing, maintaining of mobile and systems. originally accepted communications to The tariff was April request peti 30, 1956, become effective but at the rehearing granted tioners a was and the commissionconducted an investigation proposed an into the rates conditions and and inquiry scope jurisdiction. petitioners, as to the of its own exception city Angeles, with the persons of Los engaged furnishing on a
or firms similar service basis, competition Pacific, which contract here tofore has offered on a basis. The this service contract city Angeles appeared of Los has on behalf of customer inter pursuant public- ests of its to its inhabitants, own and its petit spirited utility regulation growth. interest incorrectly urge ioners1 that the commission has determined jurisdiction in favor of own in this matter contend rights that their of the United under Constitution States They urge tariff and of that the this state are also violated. provisions creates a conflict with federal law and with the subsidiary Pacific, consent decree2to as a American Telephone Telegraph Company, party. was a As a basis for its order the commissionfound and concluded: telephone 1. corporation That Pacific public utility and a performance in the of this service; 2. That the systems and service heretofore furnished under proposed contract Pacific and in this tariff schedule con- stitute utility telephone line service, provisions under the of the Constitution and the Public Utili- Code, ties and that Pacific has dedicated same Poor, doing Thomas 1Petitioner individual business as Bakersfield appears Electronics, petitioners as one of the on the Watson Communica System, petition rehearing tion commission, Inc. brief. did He for a before standing peti and therefore has no this court before as a (Pub. Code, 1731.) tioner for review. Util. § Company petition rehearing Petitioner Gamewell did not and like- standing petition gave permis- wise has no for review. This court brief, opposition sion to file without from the commission until after the necessary brief was is not filed. It to rule on the commission’s motion to strike this brief as it be treated as an amicus curiae brief. parties. briefs Amici curiae have also filed been several interested Co., Inc., 2United States America v. Western Elec. and American al., 17-49, U.S.D.C., N.J., T. et Civil T. Co. Action No. Jan. & 1956. necessary public; 3. That the so used useful performance in Pacific’s leasing of its and the duties pro- to commission thereof Code3; the Public Utilities That vided section 4. power under 728 and has the the commission sections contracts; in lieu 5. That to establish rates these *6 power accept, has the to under the commission section permanently proposed or estab- suspend or the rates to alter just reasonable; which finds to be lish other rates it supple- proposed rates, with the revisions That the 6. mentations ordered, just are and reasonable. corporation public engaged the is a Pacific telephone serv state. As such its business within this recognized super subject to property charges are the ices, However, its under charter vision of the commission. non-utility nature. may of a engage in activities also hamper unduly with or interfere Whether these activities utility obligations affect performance public or it in the property of its per necessary or useful the owned gen public, course, of obligations are to the formance its commission cognizance of the erally, questions within the question a of mixed 851). It is sometimes (§§701, 702, activity the particular is within a as to whether law fact must look we scope of commission. Here regulatory the tariff schedule activity furnished under this nature of the juris question dedication, to determine as as well presented. dictional issues systems, implies, Private mobile communication as the name persons moving oral communication with afford direct “private 108-T Tariff defines mobile vehicles. “one or stations and or
systems” as more land one mobile more together mobile stations, stations, or two or more with asso radiotelephone equipment, for communication between ciated or and mobile stations between mobile It land stations.” “operational radiotelephone a land station as fixed defines system as with mobile communication station used relay or control or repeater, a base station” as station. comprised of a re transmitter, A station is “a push-to-talk (with loudspeaker), a handset or micro ceiver radio, the use Because it involves phone, and an antenna.” compliance requirements with the Federal must there provisions of the Federal and the Commission Communications Public all references hereafter indicated 3Unless otherwise Utilities Code. (Comm. Communications Act Act of 48 Stat. U.S.C., seq. amended). person, et firm §151 corporation desiring have mobile communication
system apply must commission for allocation federal length permission operate a radio wave and for vary required equipment. The conditions for a license purpose desired, system which the use is and the operated specific only. equip for that use licensed to be may purchased ment manufactured, or leased the licensee satisfy operating he but must the commission that it meets its requirements. may repair install, equip He maintain and delegate may ment himself he but he these duties must punish equipment. remain in control He is regulations. ment violation of the federal commission for complies regulations of the The tariff of Pacific with the federal commission. systems mobile communication re- Private differ some systems.
spects from mobile communication Pa- cific, company, as a common carrier is licensed operate the federal commission to over the frequencies radio allocated use. It install radiotelephone equipment in subscriber for this vehicle *7 use, completed through company’s all but calls must be the company operator office, central the of a intervention any ask for the number and make connection. the Calls may company’s exchange system number be on the made obviously throughout only the world. This service can be telephone company. furnished It is appropriate only persons needing and effective for occasional to or with their from their vehicles offices. It has been furnished Pacific under tariffs filed with the past state commission for the decade. Private mobile communication service special- fulfills a more
ized Where a continuously need. required, free channel is it is more efficacious. After the close of World War II and the government, Korean conflict industry many organizations began to make type extensive use of this quick, for service private employees communication with agents or in trucks and automobiles, and there is an increasing ever demand for the probably is widely service. It most known in connection with its use law enforcement companies. officers and taxicab Pacific entered of furnishing private the field systems mobile in 1948 with two contract In required customers. 1954 was it by the copies state commission to file of its contracts. Sub-
520 Co., Re Gas
sequently (Order 51446,
Southern Counties
would
75) the
held that
service
commission
Cal. P.U.C.
but
not then
public utility
that there was
become
filing
the
that this
experience
tariffs,
to warrant
sufficient
might
that it
dis
experimental venture and
was still an
require
ratepayers
at that
telephone
it
service to Pacific’s
to all
This
this service
comers.
to offer
time to file tariffs and
filed tariff sched
challenged. When Pacific
not
decision was
covering
customers,
contract
in 1956 had 214
ule 108-T
private
inquiries on hand for
units,
private
and had
mobile
only
per
represented
4.5
cent
systems.
contracts
in this
licensed
private
base stations then
mobile
the total
state.
petitioners urge
furnishing
sys-
that
these
merely engaging
basis
tems on a lease-maintenance
Pacific
“telephone
they
not a
equipment service,
service” and
importance
following
pub-
stress the
differences between
systems:
private systems
that
no
lic
have
general
switching
toll
tie-in
interconnection with
or
furnish
Pacific;
Pacific cannot
the radio
facilities
that
operate
equipment
but these must
channel or the license to
user;
that the user must remain in control
be secured
of
responsible to
equipment;
he remains
the federal
that
may
equipment
commission; that
and maintenance
many private sources, whereas
from
obtained
public utility
from
be obtained
communication
telephone
sending
power
energizing
company;
that
than a tele-
apparatus may
from other sources
be obtained
operation
phone company; that for the
rights monopoly,
do-
dependence upon
eminent
there is no
leasing
merely
franchise;
inert radio
main or
to all of the
available
equipment;
this service
understanding
within the common
public,
not come
and does
offering.
system
aof
XII,
23, of
Article
section
our
provides:
Constitution
“Every private corporation
owning,
managing,
. . .
operating,
controlling
plant,
equipment,
any part
or
.
or
. .
plant
such . .
within this State
.
. . .
*8
telephone
messages
directly
transmission
. . .
.
either
. .
or
indirectly,
public
hereby
to or
.
. .
is
declared
be a
for
iitility
public
every
private corporations
. .
class of
. and
. .
.
by
Legislature
public
hereafter declared
to be
utilities
subject
regulation.
shall
likewise
to such control and
The
power
. . .
shall
.
Commission
have . . such
and
supervise
regulate public
and
utilities
. and to fix the
.
.
charged
furnished,
rates to be
commodities
or services
by public
upon
rendered
as shall be
utilities
conferred
(Emphasis
Legislature.
added.)
In
...”
the Public
Legislature
“public
Utilities
has further defined
Code
utility”
including “every
telephone corporation
.
as
.
-.
.
.
.
commodity
performed
where
service is
or the
delivered
any
public
portion
(a)]
to the
or
thereof”
subd.
and
[§
provided
telephone corporation
any
has
that “Whenever
.
..
performs
. . .
a
commodity
public
service or
delivers
to the
any portion
or
any compensation
thereof for
payment
or
telephone corporation
whatsoever is
.
received, such .
.
...
public utility
jurisdiction,
regu-
control and
lation
provisions
part.”
of the commission and the
of this
[§216,
“Telephone corporation’’
(b).]
subd.
is defined as
including “every corporation
person owning, controlling,
or
managing
operating,
or
compensation
line for
(§
within
234);
“telephone
this State”
line” is defined
including
“all
.
property
operated,
. .
owned, controlled,
managed
or
in connection with or to
facilitate
by telephone, whether such communication is had with or
(§
(Emphasis
without
use
233.)
transmission wires.”
added.)
readily apparent
It is
disjunc
use of the
tive it
ownership
was
any plant
intended that
equipment
would
operation
be sufficient and that
and control were not
prerequisites
made
jurisdiction.;
commission
furthermore
ownership may
that such
“any part”
plant
of such
equipment.
It is therefore immaterial that Pacific does not
remain in control of
equipment
or that it does not furnish
the radio channel over
operated.
which the
These are
imposed by
matters
limitation
the federal com
requirement
mission.
that there be no interconnection
general
with the
toll
switching
facilities
Pacific is also
imposed by the
acquiesced
federal commission
Pa
cific, although such
physically possible
connection is
and, in
permissible.
stated cases of
emergency, is
fact
mobile communication
from
be obtained
sources other
utility,
than
from
does
detract
nature
this service which
voluntarily
Regu
offered to the
under a
filed tariff.
nonregulated
compete many
lated
services
fields4
(sale
4Story
Richardson,
there no in our Constitution laws that telephone may only by monopoly. be offered a In some phases telephone company, of its a dedicated to the (California service, monopoly a does tend to become Fire Storage Brundige, 185, 669, Co. v. 199 189 Cal. P. [248 Proof 811]). annoyance so, A.L.R. Were severe 47 telephone might be if economic waste obliged caused users were many competing dupli- companies,
to subscribe
desks,
on their
and with
cate instruments
transmission wires
telephony
invading
cluttering
frequency
the skies or radio
complete telephone
channels,
order
obtain
service.
presented
by
The real issue
the service
whether
offered
telephone
proposed
tariff is “for the
mes-
transmission
sages” or “in connection with
to facilitate communica-
’’
by telephone.
tion
“telephone”
is not
the code.
The word
defined
“telephone”
by
In its narrow
refers to the instrument
sense
telephony is
It
defined in
New
which
achieved.
Webster’s
“An
Dictionary, 2d edition as
instrument for
International
especially
a
reproducing
speech, at
dis
sounds,
articulate
defining “telephony”
Encyclopaedia
In
Britan
tance.”
telephone
(1954
a
the term
ed.) states “In
broad sense
nica
speech
telephony
art of
transmission
includes
entire
operating methods
re
many
with the
accessories
supplied to
development
facilitate
search,
and invention have
by
a
electrical means.”
at
distance
and extend conversation
Transmission,
pointed out in Television
this court
As
862],
88
Com., 47
P.2d
v. Public Utilities
Cal.2d
Inc.
[301
“
two-way
carry
communication
telephony
on a
one
distinguishable
by listening”
and it is
speaking as well
usually
broadcasting
latter “is
asso
in that the
from radio
newspapers.”
halls,
theaters
music
ciated with
application
involves
communication
While
more
telephone communication, it is
of radio to
of the art
broadcasting.
telephony
radio
akin
than
telephone
offering a
determining
is here
In
whether
company
telephone
appears
basic that what
service,
to be
for the trans-
the facilities
maintains is
actually provides and
surplus
(sale
Com.,
water
cases which dedication constituted the problem any difficulty. main present do not jurisdiction petitioners competí-,
No
over the
other
tors of Pacific in this field has been
asserted
commis
sion,
expressly
order it
its
disclaims
intention to
assert such
until there should be evidence that
they
willing
had dedicated or were
to dedicate their service to
public.
attempts regulation
of these
Until the commission
they
complain
they
petitioners,
no
that
have
occasion to
process
acceptance
denied due
of law the commission’s
(Stephenson
Binford,
251,
Pacific’s
v.
287 U.S.
tariff.
181,
;
288,
77 L.Ed.
Continental
S.Ct.
A.L.R.
[53
721]
Baking
Woodring,
595,
352,
Co. v.
286 U.S.
367-369
S.Ct.
[52
;
Coney,
76 L.Ed.
Hicklin
A.L.R.
U.S.
1402]
169,172-173
247].)
S.Ct.
78 L.Ed.
petitioners
equal protection of the
Nor are the
denied
regulated
competes
them
company
law the
that
fact
was
that there
in this
fact
service.
commissionfound
competition by
field,
no unfair
and ruled
Pacific
give
it would
allow
mobile customers
Pacific
the customers
services which it would not make available to
main-
competitors
require
of its
it would
*11
charges
fully compensatory.
rates
tain
The
which would be
prescribed by
the modifications
found,
the tariff were
con-
reasonable,
fair
and as to this the
ordered, to
and
binding
presented is
clusion of
on the record
the commission
upon this court.
the
contention
is
for the
There
no sound basis
sphere
regulation
permissible
the
of this
is outside
regulation
the 14th
government
of
and that it contravenes
respects in
the
Amendment. There are several
public
systems
concern.
are of
mobile communication
part
systems
considerable
shows that these
evidence
companies,
trucking
public
companies,
by
transportation
used
utility com
and
agencies,
departments,
law
fire
enforcement
purpose
companies. Their
panies
irrigation
such as
and water
moving on
maintaining
vehicles
is
communication with
the
is radio
used
public
highways. The medium
the
streets
the con
public
. .
generally of
concern. “.
and is
[W]here
regulated,
industry may public good
trol
for the
‘adequate
That
for it.
provided
‘adequate
reason’
there
police
within the
purpose
can
to achieve
reason’
.be
Dry
(State Board
Cleaners
power
state.”
of the
Thrift-
29].)
P.2d
436,
40 Cal.2d
443
Inc.,
Cleaners,
D-Lux
[254
jurisdiction
offering
exerted
the commission
tariff
over this
goes merely
regulation
to
the
service offered
public
police
utility,
coneededly
within
matter
the
power
powers given
of the state
and the
commission
Legislature.
the Constitution and the
support
jurisdiction
Also
of its
the commission
found that the
mobile communication
necessary
performance
useful
Pacific’s
its duties to
public
leasing
jurisdiction,
and the
thereof is
to its
provided
8516;
455,
in section
that under sections
728 and
power
has the
to establish rates for these
in
power
contracts;
lieu of
455 it has the
and that under section
suspend
proposed
accept,
permanently
alter or
just
rates or to establish other rates which it finds to be
disregarded.
may
findings
reasonable. These
not be
powers
It is well
regulation
that the
established
upon
conferred
cognate
Legislature
commission
must be
germane
regulation
to the
utilities.
(Pacific Tel. & Tel.
Eshleman,
Co. v.
This question any probable leaves consideration public utility sell, any part 6Section 851. “No shall lease . . . of its plant property necessary performance . . . ... or other or useful having of its commission an order duties to . .. without first secured from the authorizing it so to do. . . .” whereby procedure 7Sections 728 and 729 set forth the the com investigate propriety mission and reasonableness of rates con lawfully filed, tained in tariffs and establish new rates. “ rates, tolls, rentals, charges, fares, 8Section 210: ‘Bates’ includes unless the context indicates otherwise.” *12 every prescribes, 9Section 489: “Under such rules as the commission public utility other than a . common carrier shall file . show . schedules ing rates, tolls, rentals, charges together all . .. with all . . . contracts any rates, tolls, rentals, . . which manner . affect or to classi relate fications or service. ...” may supervise regulate every 10Section 701: “The commission and whether things, specifically in the and State do all designated part thereto, necessary in this inor addition which are jurisdiction.” power convenient in the exercise of such jurisdiction conflict between the of the federal state com- alleged an on missions and of by limitation the state commission provisions Jersey of the New reason of the consent decree hereinbefore to. referred provisions respondent commission that the The held 2, (b)11 3, of section subdivision and section subdivision (47 as (e)12 of of 1934 the Communications Act amended U.S.C., 153) clear that the federal commis 152, make it §§ licensing pro except jurisdiction, under the radio sion has no service act, over intrastate communication visions by radio” does not radio, communication and that “interstate points in same state if such include communication between commission. regulated a state communication this state. applies service within proposed tariff to It is noted ruling appear be correct. to commission’s would has not asserted Commission that the Federal Communications jurisdiction or rates. such tariffs over Department brought pro January of Justice In 1956 the ceeding Act in the under the Sherman United States District Jersey against Company, in New Western Electric Inc. Court By Telephone Telegraph Company. con and American parties without trial the issues consent sent where federal antitrust laws was entered. Under the decree testimony a consent decree is taken, and no no trial had any charges contained of or admission evidence Refining Corp. complaint. Barnsdall (15 16; U.S.C. F.Supp. 308, Oil Co. Wis. Birnamwood [E.D. 1940] Jersey specifically retained contin New court 310-311.) The reference jurisdiction with uing to orders and directions issue judgment. final of this or enforcement the construction court before this proceeding submitted in the From the briefs Jersey proceed original parties to New appears that the meaning and effect opposing to the ing take views (b) (b) 152, ], 2, U.S.C. subdivision which [47 11Section subdivision ‘ ‘ Subject provisions part provides of section as follows: give chapter apply nothing title, shall be construed this (1) classifications, prac respect charges, with Commission regulations by services, facilities, tices, or in with intra connection any or radio of carrier. wire ...” state (e) (e)], U.S.C. subdivision subdivision 12Section “ provides: . . . . means communication . . ‘Interstate communication’ not, any (1) State . . . but shall other from State ... subehapter chapter, provisions respect II of this wire or include points in if com- the same State ... such communication between radio regulated a State commission.” munication Carriers.”) Subehapter (Note: “Common II is entitled *13 provides as which (d) of section V of that decree subdivision follows: enjoined defendant AT&T and restrained en- “The from through directly, indirectly or its gaging, either subsidiaries furnishing than any other common in business ... services; provided, however, carrier communications that this period apply... years for (d) (5) not five Y shall Section Judgment, leasing maintaining Pinal date this from the systems, charges facilities for communications for subject public regulation, persons are not to which to who sys- are from their lessees defendants subsidiaries of such forty-five days (45) after Judg- tems the date of this Pinal . . .” ment. Department of takes the view that Justice under sub- (d) prohibited division the defendants that action were engaging in leasing from the business of maintaining systems, facilities for mobile communications but were period years serving allowed cut-off of five those who days were lessees within 45 Its after the judgment. date of the phrase (d) view is that the reading subdivision “the charges subject regulation” which are not to descriptive of stated, charges the fact namely, that such are public regulation. not parties The other are of phrase merely consent decree view provides if charges regulated are a state commis- telephone companies sion the prohibited by are decree continuing equipment from pri- to furnish and facilities for systems. vate mobile communications Pacific, hereinabove stated, party was a to that would be decree and bound terms. Insofar as ruling we advised no has been obtained from Jersey
the New federal court as to meaning and effect (d) subdivision Y, adjudication section and no of this issue has been made the Federal Communications Commis- However, sion. brought it has been to our attention that in a Opinion Memorandum and Order released 21, 1957, November proceedings in the entitled “In the Matter of American Tele- phone Telegraph Company, al., et Lease and maintenance and facilities for systems, 11972,” Docket No. sought this issue was to raised, the federal commission stated it had been unable specific language find basis of the consent decree support Department the contention of the of Justice that it service, regulated prohibit the
was the intent of that decree no actual determina- unregulated. commission made That question. tion on this some proceedings state commission In the before filing the motive in petitioners argued that Pacific’s avoid consent decree.
proposed 108-T was to tariff *14 effect; that proof no to that that there was commission held good intentions; judicial of or bad not notice would take by activities to bar such if court wished the federal have subject regulation, it would made though Pacific even nothing in the decree was that there provision, such a utility ruling was change that this service prompt it to its appears good reason jurisdiction. No to its respect in this should of commission why the decision disturbed. order is affirmed. Spence, J., concurred. Traynor, J.,
Gibson, J.,C. J., Dissenting. law, SCHAUER, follow If we established principles governmental plan, or even the fundamental our of we should hold'that the Public Utilities Commissionis without clearly appears in this matter because it private radiotelephone operations mobile of the Pacific Telephone Company public utility operations. Pacific, are not purported private dedication of its radiotele mobile phone equipment filing maintenance of a service and its impart schedule, tariff cannot the character of true essentially highly competitive pri into that which enterprise. premises, commission, The action vate of approval invasion a free gives to the unwarranted of official appears entering wedge design what of be a market monopolistic sequestration of the field. This for eventual public utility company should be allowed convert the furnishing equipment maintenance service for operation, an under control the Public communications into Utilities Commission. furnishing equipment and facilities The conditions 108-T, filed described as follows in Schedule Pacific are The lessee- with the Public Utilities Commission.
Pacific Com- “responsible securing from the Federal licensee necessary for the authorizations munications Commission operating personnel system communications required Regulations in accordance with the Rules and of the Federal Commission.” Communications “The station licensee shall have exclusive control of the communication facilities furnished to such licensee and full responsibility operation their use and accordance Regulations the station authorization and the Rules and the Federal Communications Commission. right ingress “The station licensee shall have unlimited egress any premises Telephone Company
to and from on land located radio station furnished schedule, to each licensee under this and the licensee shall ’’ equipment. have unrestricted access to such provide adequate power The lessee must and maintain an supply and, for each mobile station unless the station is land provide premises Pacific, located on must and maintain adequate power supply for the land station. furnish, install, undertakes and maintain the facilities for communication. foregoing description by Pacific of the operation operation shows that the is essen-
tially public utility business, not a service. The Pacific, requisite lessee, not must secure the authorization operation for radio from the Federal Communications Com- *15 responsibility operation full mission. The lessee has for the and exclusive control over the communication facilities. provides power operation (except lessee the of the station entirely in the few and distinct situations of land stations telephone company property). on Thus it the lessee who operates service; and the communication Pacific controls merely private enterprise to furnish invades the field of and equipment necessary carrying maintain or convenient to the on private of the communications. nothing in private There is the nature of the mobile com- contemplates
munications business which supplier that equipment the communications retain an it, interest does; most equipment manufacturers of such equipment operate sell the to many those who it. The thou- privately sands of such items of owned installed subject regulations and maintained aircraft are of both the Federal Communications Commission and the Civil Aero- nautics To extent Administration. what the Public Utilities expects overlap jurisdiction Commission California regulatory precisely of the federal bodies is not defined. majority’s According applicable to the construction of the provisions of the state Constitution1 and the Public Utilities Code,2 the Constitution has Legislature authorized the pro- vide, and Legislature has provided, any service connection any telephonic with public communication, pri- or vate, public is a utility subject jurisdiction to the the Public Utilities Commission if it is public offered to the any portion or thereof. But the lightly Constitution should not authorizing understood as Legislature to convert public business into a legislation and the pur- enacted suant to the Constitution should not be understood as intended so to do. radiotelephone Private mobile are analogous interoffice or intrabuilding communica- systems. tion Concerning type the latter of communication system following language holding Chesapeake &
Potomac Manning Tel. v.Co. (1902), 186 U.S. 246-247 pertinent: S.Ct. 1144], L.Ed. “it cannot be presumed legislature any intends interference purely private ordinarily prescribe business. It cannot what “ Const., XII, Every private corporation owning 1Cal. art. 23: . . . § equipment , messages . . . . . . either clared to be a . . . for the transmission of . . . directly indirectly, public hereby or to or ... de public utility subject regulation by to such control and provided by Legislature . . . Commission as . . . The . . . power super Commission shall have and exercise such regulate public utilities, California, vise fix the State of and to charged furnished, the rates to be for commodities or services rendered by public upon Legislature, utilities as shall be conferred every private corporations, individuals, class of in or associations of Legislature dividuals hereafter declared to be utilities shall regulation. likewise be to such control and ...” “ (a) Code, utility’ every 2Pub. Util. 216: ‘Public includes . . . § tele phone corporation modity performed . . . where the service is for or the com any portion delivered to the or thereof. ‘ ‘ (b) any telephone corporation performs Whenever . . . . . . a ser commodity any portion vice or delivers a to the or thereof for any compensation payment received, whatsoever is such . . . telephone corporation public utility subject jurisdiction, ... is a regulation control and of the commission. ...” “ Code, any portion Pub. Util. 207: § 'Public or thereof’ means the public generally, portion including public, person, limited private corporation performed . [or] . . for which the service toor commodity which the is delivered.” “ Code, ‘Telephone duets, conduits, Pub. Util. 233: line’ § includes all poles, wires, cables, instruments, appliances, estate, and all other real *16 fixtures, personal property owned, controlled, operated, managed or by telephone, in connection with or to facilitate whether such communication is had with or without wires. the use of transmission ’’ “ Code, ‘Telephone corporation’ every 234: Pub. Util. includes § cor poration phone person owning, controlling, operating, managing any or tele ’’ compensation line for within this State. an engaged purely private in a corporation, individual or business, charge therefore, although services, and, shall language may enough the private of a such statute be broad include excepted business, generally it will be therefrom validity legislation. order to all remove of the doubts appears portion It some is of that the defendant’s business purely private spoken receipts a nature, whereof are of in the reports private Congress rentals, as to business such charged not, prescribe could would, if it what shall be therefor. many government belonging In buildings, both those to the belonging Columbia], District and those [of telephone plant; a individuals, is what called local parties in arrangement telephones which is, that system other; a different with each rooms can communicate telephone exchange, general which is not connected with the speaking is no than the tubes more its nature personal building. or call It is use bells in a for in building parties building. By cannot it those nor can such general public, with the communicate parties simply a local convenience building. reach It is solely building. are in the Such for the use those who single building, in a instruments combinations defendant, connections, no are furnished outside expenses thereof, therefrom, as well as rentals part a of its and constitute account, in its books of entered subject held, was not system, it is business.” The described City v. (See Paul regulation by also St. Congress. to rate N.W. (1935), 193 Minn. separate from the & Tel. [284 Tri-State Co. Tel. general [telephone systems, 822] departments are city’s police telephone system, for fire private use”].) “a majority opinion Contrary (p. 524) it has been private telephone system may fact that a held governmental governmental purposes unit for used system public utility regulation does make the (Chesapeake Manning (1902), & Tel. as such. Potomac Co. 238, City supra, 247; Paul v. Tri-State U.S. St. Tel. & supra, (1935), 193 Minn. Tel. Co. 824].) N.W. equipment communications fact public systems maintained cor- furnished and public utility poration also furnishes facilities and corporation, as to not mean that the service, does service, can be compelled file tariff with the Public *17 532 accepted a tariff or is entitled to have
Utilities Commission by telephones such the “The mere fact that commission. public business, company, which also does a furnished the subject part business, such does not make them a charges. regulation by Congress A railroad them to the company of its carry charter, on not may, if authorized its simply strictly business, but also an establishment its railroad The fact that for the manufacture of cars and locomotives. in itself engaged works would not it is in these two' different super and locomotives the manufacture cars body the although have legislature, such would vision of the transportation.” right regulate charges for railroad supra, Manning (1902), (Chesapeake & Potomac Tel. Co. v. (1918), 179 Cal. 238, 247; see Allen v. Railroad Com. U.S. 249].) 466, 8 P. A.L.R. 108-T, by filing offered, Schedule The fact that Pacific has to furnish commission of the submit to basis a lease and maintenance on Federal persons authorized without discrimination com- private mobile operate Communications Commission essentially private systems, cannot convert munications (See Allen utility offering. operation business into 82.) supra, Cal. (1918), Railroad Com. opinion states, of the commission “We are not con- presence vinced that Pacific’s in the field will constitute vigor competitors. not, threat to the continued of its It should propose to, will not be allowed to favor its own does not by way of connections with its ‘land mobile customers competitors. of its It will lines’ not allowed to customers charges fully compensatory. required to maintain which are disadvantage being unable to enter into It will be under the competitors price competition to secure the business with its customers; required it particularly and will be desirable competitors may elect to serve. . its not . . to serve customers competition regulated com- finds that “The Commission all, at is more nonregulated, if unfair panies it is with the non- regulated rather than to the likely to be unfair to opinion, competitors. regulated Commission’s ... [I]n ‘monopoly’ activities of fear from the has less to by public fully regulated authorities ‘monopoly’ is when such compete position in a will be fail to find that Pacific and we rivals.” unfairly its smaller ignore the realities commission These determinations obviously corporation, public utility Pacific, of the situation. operations into a area of expanding the looking toward Surely commis- enterprise. by private now serviced field filing sched- is altruistic presuming that is not sion has certainly Pacific And in this field. ules for its activities increased diversification, and expansion, right to seek segments disparate bringing process of profits—but course Of monopolistic domain. enterprise into its enterprise condi- free currently, under is true that Pacific *18 But mani- monopoly in this field. having a far from tions, is competition of festly working elimination of the it is toward newly of private persons firms in the invaded field and majority result of the de- The service. tendency will be a upholding the commission cision the order of operation is which promote monopoly in a field of business enterprise. of free The decision remain in the realm and should upon stamp approval bureau- majority places of of the the type in a of control, of Pacific recognition, well as cratic as regulation as a require business monopoly. has not been shown which has business private mobile communication The freely competi- satisfactorily the operated under heretofore Understandably characterized it. tive conditions which have open market in the petitioners engaged business in this the which amounts object action enterprise to commission of free corporation utility sponsorship public of a to bureaucratic operating public in this field. as a following in Alarm, discussion The General Inc. v. Under (1953), [1-3]], down concerning 235 P.2d Ariz. 672-673 [262 telephonic telegraphic burglary, fire, and and emergency system apropos: public alarm “To be service must be such as corporation, its business and activities operation rates, charges, and methods matter make its express public it, be, It must as the courts concern. clearly public to the extent contem with a interest clothed subjects governmental plated by it to control. the law competition general enterprise is the rule. Govern Free and monopolies exception legalized are the and and mental control only for that class of our constitution are authorized under public might as a service enter be characterized that business public regulation right to and theory that prise. The the competition. If customary right outweighs protection the its necessities is such that public a business contact with the governmental through be better served can convenience and supervision eliminating thereby cus- monopoly, controlled and ternary may police power competition, the state exercise private right to that cannot end. Such invasion of be allowed by implication or It was never con- strained construction. templated corporations public that the definition of fan so as to out defined our constitution be elastic public might incidentally include be businesses which incidentally might mes- that transmit interested businesses object enterprise sages in furtherance of the main of the has some could not be so otherwise characterized. all but that interest must interest in business establishments competition might lead to abuses be of such a nature that interest. interest contem- detrimental business, plated depends on the means the nature may the abuses which reason- public, which it touches Packing ably anticipated be if controlled. Charles Wolff Relations, Industrial 262 U.S. S.Ct. Co. Court constitution must 630, 67 L.Ed. 27 A.L.R. Our 1280]. harmony princi- interpreted in with these easily and ples. can of the convenience construed, it interest So degree necessity public, nature supervised con- stated, herein business ’’ monopolies granted. trolled, fixed or rates provision With reference consent decree of Jersey District Court for the District United States of New Co., quoted States v. Electric United Western *19 majority ante, p. 527,3 opinion, I would comment follows: provision charges This is not a clear declaration that the systems leasing maintaining communications are and subject regulation; it a clear not neither is declara- Telegraph Company Telephone and and tion that American engaging in enjoined from the business are not subsidiaries maintaining communica- leasing facilities for charges for those commu- tions where the subject regulation. In nications services are provision appear that the it does not circumstances herein. should influence decision consent decree 3‘ ‘ engaging, enjoined from AT&T is restrained The defendant through its subsidiaries ... business indirectly directly, either furnishing services; communications of common carrier other than the (d) V ... for a apply Section shall not however, provided, leasing Judgment, (5) date of this Pinal from the years of five period maintaining communications systems, for private facilities regulation, charges are persons who for which such systems forty-five subsidiaries from defendants their lessees Judgment. (45) of this Pinal ...” date after days annul I would order
For reasons above stated the Public Utilities Commission.
Carter, J., McComb, J., concurred. July application rehearing was denied Petitioners’ Carter, J., Schauer, J., McComb, J., were of 1958. opinion granted. petition should June 27, 1958.] In Bank. No. 6208. [Crim. al., et Respondent, JAMES A. WEISS PEOPLE,
THE Appellants.