17 N.C. App. 522 | N.C. Ct. App. | 1973
G.S. 62-110 provides as follows:
“§ 62-110. Certificate of convenience and necessity.— No public utility shall hereafter begin the construction or operation of any public utility plant or system or acquire*525 ownership or control thereof, either directly or indirectly, without first obtaining from the Commission a certificate that public convenience and necessity requires, or will require, such construction, acquisition, or operation: Provided, that this section shall not apply to construction into territory contiguous to that already occupied and not receiving similar service from another public utility, nor to construction in the ordinary conduct of business.”
Under this statute a public utility may construct and operate its utility plant or system and extend its public utility services, without first obtaining a certificate of public convenience and necessity, if the construction and extension is into territory which is (1) contiguous to that already occupied by such public utility and (2) not receiving similar service from another public utility.
On competent, material and substantial evidence the Utilities Commission has found that the territorial extension involved in the present case “is into an area contiguous to the presently occupied service area of Southern Bell,” and such area is “not presently receiving telephone service from another public utility.” It has also found on such evidence that the Town of Pineville is a municipality and that as a municipality it has owned and operated a telephone system within the area of Southern Bell’s proposed extension. However, by statutory definition the term “public utility” does not include a municipality. G.S. 62-3 (23) d. Consequently, a municipal corporation such as the Town of Pineville, which furnishes telephone services to its inhabitants and to others in its vicinity, is not subject to regulation by the North Carolina Utilities Commission, and the provisions of Chapter 62 of the General Statutes do not apply to it, except as otherwise stated therein. Dale v. Morganton, 270 N.C. 567, 155 S.E. 2d 136. Appellant Town of Pineville admits that it owns the telephone system which serves its citizens and others living outside but near to its municipal borders but continues to insist that the system is operated by a separate legal entity known as “Pineville Telephone Company” or “Pineville Telephone and Electric Company” and that this separate legal entity is a public utility within the meaning of Chapter 62 of the General Statutes and particularly within the meaning of G.S. 62-110. The evidence, however, is to the contrary. The finding by the Commission that there is no separate legal entity under the designation “Pineville Telephone Com
Thus, findings by the Commission which are binding on this appeal establish that the territory into which Southern Bell proposes to extend its services in the present case is both contiguous to the territory presently occupied by it and is not receiving similar service from another public utility as the term “public utility” is defined for purposes of G.S. Chapter 62. This brings the extension of Southern Bell’s services involved in the present case within the proviso to G.S. 62-110, and no certificate of public convenience and necessity was required. The Commission’s findings support its order.
We have carefully reviewed all of appellant’s assignments of error and find them without merit. The order appealed from is
Affirmed.