Lead Opinion
The pertinent statute involved in this cause is R. C. 4909.19 which, in part, reads as follows:
“Upon the filing of any application for increase provided for by section 4909.18 of the Revised Code the public utility shall forthwith publish the substance and prayer of such application, in a form approvеd by the public utilities commission, once a week for three consecutive weeks in a newspaper published and in general circulation throughout the territory in which such public utility operates and affected by the matters referred to in said application, and the cоmmission shall at once cause an investigation to be made of the facts set forth in said application and the exhibits attached thereto, and of the matters connected therewith.***”
This court, in construing R. C. 4909.19, concluded in Committee Against MRT v. Pub. Util. Comm. (1977),
“In the instant cause, Cincinnati Bell provided in its notice to subscribers that it had applied to the commission for authority to increase its rates and charges and revise its tariffs, all of which would be applicable throughout the company’s territory in Ohio. The utility stated further in its notice that more information could be obtained from exhibits on file with the сommission. Although the utility fully explained measured rate service in Exhibit D of its application, there was no mention of this important proposаl in its notice furnished subscribers.
“From reading the notice published in their local newspapers, subscribers opposed to usage rates would not have known of the innovative plan being introduced by the utility, would not have had any reason to view the exhibits on file with the commission, nor would they have had any interest in participating in the hearings held before the commission. Thus, because of the insufficient notice, appellants were not only denied an opportunity to present evidence at*175 the hearings before the commission opposing the selectiоn of the experimental area for measured rate service, but also were denied the opportunity to challenge the new rate service itself.
“We therefore conclude that Cincinnati Bell, in order to insure an opportunity for its subscribers to be heard, was required under R. C. 4909.19 to specifically mention its proposed measured rate service in its published notice regarding rate increases.”
The court in the syllabus of MRT, swpra, mandated that:
“Where a utility рlans to adopt measured rate service as the method for establishing rates to be charged its subscribers and includes such plan as a proposal in its general application for a rate increase before the commission, it must specifically mention the prоposal in any notice published under the requirements of R. C. 4909.19.”
It is our determination that the facts presented within this case are not materially diffеrent from the facts in MRT and come within the mandate of the syllabus of that opinion. A portion of Ohio Bell’s general application for a rate increase was to change its business customers to a measured rate service. The published legal notice contained nо references to such service. We thus hold that according to MRT the notice in the instant cause did not disclose the essential nature оr quality of the proposal to those affected by the rate increase.
Ohio Bell argues that any insufficiency in the published legal notice was cured by the mailing of information of the proposed measured rate service increase. Such information was contained within separate brochures which were enclosed within mailings of bills to Ohio Bell customers. Upon inspection of the brochures, it would seem to this court that the explanation of the new method of rates using the measured number of calls would be a reasonable explanation of the system had such information been included within the original official publication. However, this material submitted along with the regular customer billings сannot stand in the stead of the requirement of a reasonable statement of such rate amendment proposal to be placed in the legal notice.
This court having held that the legal notice required by R. C. 4909.19 had not been given, the order of the Public Utilities Commission dated December 6, 1978, being unreasonable and unlawful, is hereby reversed, and this cause is hereby remanded to the commission for purposes of reissuing appropriate notices pursuant to R. C. 4909.19 and conducting further hearings upon the prior application as filed within Case No. 74-761-TP-AIR.
Further, the additional hearings by the commission after appropriate notice is reissued are not to be hearings de novo, but may bе considered a continuation of the prior hearings, and the further determination of the commission may be based upon the totality of thе evidence adduced from both the prior record and the additional hearings.
Order reversed and cause remanded.
Dissenting Opinion
dissenting. In the dissent in Committee Against MRT v. Pub. Util. Comm. (1977),
The decision here is a consequence of what I consider to be the court’s misjudgment in that case. The impact of MRT as pointed out by commission’s counsel in its brief causes continued concern that this appeal is the tip of an iceberg of future appeals based on the current uncertainty as to adequacy of compliance with notice requirements of R. C. 4909.19 in all past cases.
This case represents a collateral attack on a commission order issued in 1976 whiсh resulted from lengthy hearings
As an additional consideration weighing strongly against the rationality of permitting such collateral attacks upon the commission’s jurisdiction it must be noted that 26 cities and villagеs participated in the proceedings, in connection with which the question of measured rates was persistently argued by ten state universitiеs, the Ohio Council of Retail Merchants and the Ohio Private Employment Association. The order here reversed as being beyond the jurisdiction of the commission survived three separate appeals to this court. See Central State University v. Pub. Util. Comm. (1977),
In my view the subjective test which the court attempted to indict in MRT is incapable of specific definition and the concept of requiring detailed factual matters in the R. C. 4909.19 notice as a prerequisite of jurisdiction is destructive of the regulatory scheme.
HERBERT, J., concurs in the foregoing dissenting opinion.