*1 ease; 35% had discussed it with friends relatives; subsequent 78% “followed events Application the Matter of the of RULE crime”; to the alleged opinion 8% had an SERVICE, RADIOPHONE INC. for Au- appellant guilty, was 4% that he thority Existing to Amend its Certificat- innocent, and 88% had no ed Radio Common Carrier Service Area The record does not reflect the news arti- to Conform with the latest Service Area objective; cles to be other than that there Wyoming Directive of the Public Ser- selecting an difficulty impartial vice Commission as contained in Docket jury; appellant exercised all of his No. 9658 Sub 1 and Docket No. 9438 Sub challenges; peremptory appellant or that 2. objected to the jury selection. 23(a), provides: W.R.Cr.P. “ * * * COMMUNICATIONS, INC., TELSTAR upon The court motion of the (Petitioner), days prior defendant made at least 15 trial,
the date set for shall transfer proceeding as to him to another county, SERVICE, INC., RULE RADIOPHONE county whether or not specified such is motion, the defendant’s if Public Service the court is satisfied that there exists Wyoming, within the Appellees (Respondents). county prosecution pending where the is No. 5326. great prejudice against so the defend ant that he cannot obtain a fair and Supreme of Wyoming. Court impartial county.” (Empha trial in that supplied.) sis Dec. The discretionary of the court in explored and discussed in State, detail in Collins v. Wyo., 589 P.2d (1979). Without repeating all there
said, we totality note that of the cir-
cumstances this case does not reflect the prejudice
existence empaneled
jury. publicity Pretrial is not of itself in- prejudicial.
herently 23(a),
Under W.R.Cr.P., “ * * * change order for a of venue [I]n granted,
to be the burden is prejudice great
defendant show so
general prevent as to receiving his a fair impartial trial and the decision is within the sound discretion the trial * * *”
judge. Collins v. [Citations.] State, supra, 589 at P.2d appellant has not here carried
burden, nothing there in the record
to indicate an abuse of discretion judge.
trial
Affirmed. *2 Swainson, Kline, argued,
Arthur Kline & Cheyenne, appellant. for Laramie, Alburn, III, Cary argued, R. Service, Radiophone Inc. Rule Gen., Troughton, Atty. Thomas J. John D. Carroll, III, Gen., Atty. Senior Asst. Gen., Wolfe, ar- Atty. Asst. Lawrence J. gued, Cheyenne, for Public Service Commis- sion. J., RAPER, and McCLIN-
Before C. TOCK, THOMAS, ROONEY, JJ. ROSE RAPER, Chief Justice. appeal from district court’s
This arises upholding an order the Public decision (PSC) which Commission Service Service, Inc. Radiophone petition its certifi- (Rule), seeking a redefinition of Communication, cate service area. Telstar (Telstar), challenges Inc. the PSC’s order as 2) Sub and 9438 recognized Sub unsupported by evidence, arbi- impracticality technique orig- used to capricious, trary scope and exceeds the inally area, estimate Rule’s service jurisdiction. of the PSC’s petition filed a seeking to redefine its cer- *3 operate Both Rule and Telstar radio tele- tificate area according signals to where the phone exchange services as radio common from the actually transmitter were re- (RCC). carriers signals ceived. Radio cannot be confined to particular We will affirm. geographic area such as a coun- ty as can the land lines telephone of wire predecessors In in interest service, the electric transmission wires of a petitioned Rule and Telstar the PSC for power company, pipes of a pipeline com- provide mobile radio pany or the rails of Telstar, a railroad.1 paging and service for the southeast corner just which had commenced ultra high fre- of Wyoming. particular petitions In both quency (UHF) operations, protested and in- sought right to service the cities of tervened in the proceeding urging the Cheyenne Laramie, Wyoming. and At that PSC, disapprove legitimize and not time the after what conducting days several hearings, termed Rule’s granted Cheyenne of Rule a invasion of the necessity covering convenience and market for which Telstar had been certifi- City of Laramie and “surrounding its cated the PSC. territory,” while granted Telstar was a cer- Following matter, a hearing on the tificate of necessity convenience and PSC set in its out memorandum to serve the of Cheyenne and “sur- order: rounding area” as its market. “15. The specifically Commission finds Following action, the PSC’s Rule obtain- the testimony and evidence of record to necessary ed the Federal Communications be sufficient to support finding that the (FCC) authority Commission to install redefinition sought by Rule is very high (VHF) frequency transmitter on and in the support interest. Hill, forty Chey- Sherman miles west of thereof, the Commission finds: installed, enne. After the transmitter was “(a) That the requested redefinition it was discovered that it would service a far should be provide it will more extensive area than the PSC had esti- increased coverage VHF in southeastern only mated in its order. Not was Laramie Wyoming; Bluffs, covered but also in reach were Pine “(b) That such a redefinition should Wheatland, Cheyenne, Chugwater, Rock impact upon have beneficial revenue River, Basin, Hanna, Shirley among operations; Rule’s RCC Wyoming other towns. Thus in after “(c) involving the PSC had in another case three That such a redefinition fur- County (PSC RCC’s in Natrona Docket Nos. ther regulated competition^2! explained 1. As actually Mr. Robert fined to fit the area served its an- Rule, president R. Albany and owner of of the tenna. This area extends not into 90% Rule, County stock of “the actual service area of County, but also into Carbon Laramie universally radio common carrier County almost County. and Platte Its mobile units practical standpoint simply from a that area installed in the vehicles of its subscribers travel where a mobile [radio] communicate with into all these areas. By it.” means of what is referred to as a field disagree poli- 2. Telstar does not with the PSC’s meter, intensity the reach of a radio transmitter cy “regulated competition.” In Dubois Tele- ground. can be determined on The FCC phone Exchange Telephone v. Mountain States (37 uses a standard 37 dbu decibels above a Telegraph Wyo.1967, Company, P.2d microvolt). When field measurements are tak- 812, this court held that two similar utilities en, that, though signals the result is leave may rights territory in the same and the form, irregu- an antenna in a circular wave PSC is authorized in of a larity the event conflict provides of terrain an erratic wave form between two strength utilities to make such order and signals ground of the on the prescribe irregular such conditions as to it seem shaped recep- results in an efficient just 37-2-205(a), and reasonable and that § tion area. Rule wants its service area rede- Commission; utility already other adopted by heretofore constructed, the commission authorized complaint claim- “(d) should act That such redefinition affected, injuriously after ing reliability to provide increased service Service, hearing prescribe make Radiophone such order all customers of terms and conditions for the location Inc.” lines, affected, plants or systems ser- redefining It then concluded just it are and reasonable. Cheyenne area re- vice area to include the certificate, companies may, without quested. capacity existing plants.” increase or Appellant first attacks the PSC’s *4 Though petition request not unsupported der evidence. Rule’s did as presented construction, permission begin that the evidence to new it is contends during hearing clearly inadequate it, the was by granting that the in effect clear PSC to that there existed sustain the conclusion way new cleared the for construction of Cheyenne in a need for service. We Rule’s enlarged area, anywhere transmitters in the agree. do not long approved by as as the FCC. This is true because the certificates the once PSC W.S.1977, 37-2-205(a), provides: Section area, it service loses its “(a) public begin con- utility No shall juris- to bar such construction since line, plant a or system, struction of or of effectively then diction has been transfer- line, plant system a or any extension of Only red to the FCC. the can autho- FCC having without first obtained from the rize installation of facilities radio broadcast present the commission certificate that preempted by the United States. Title public and necessi- or future convenience Thus, statute, U.S.C. under the the PSC’s require require or construc- ty will public requires conclusion that the the need be construed to tion. This act shall not coverage extra is crucial to the result since cer- require any utility to secure a in effect it has authorized construction of a any city within tificate for an extension ev- new transmitter. There was substantial lawfully which it has com- or town within finding. the Testi- supporting idence PSC’s operation, for menced or an extension mony establishing was offered that there line, territory contiguous plant into its already Cheyenne depend- were customers system for which no certificate is in service; ent be- this resulted by public force and not served cause Rule and Telstar cater to different of like for character or extension clientele; already Mountain Bell3 also failed to territory within or served customers; it, satisfy the of Rule’s Tel- needs ordinary course its star’s service any public utility, inadequate If con- to serve tran- business. line, sients; plant structing extending provide its VHF Rule could service UHF; interferes is about to interfere while Telstar was limited to if the line, operation plant recognize primary of the were to and PSC second- infra, 37-31, W.S.1957, W.S.1977, formerly pro- 3. Mountain Bell did not § intervene only ceeding, though contemplate given. not does that one utili- notice was ty granted provides conve- tele- be Mountain Bell a different mobile necessity furnishing telephone phone connecting nience service land lines. Mr. time, service At within certificated area. Rule testified that not does Mountain Bell granted operate frequencies were Rule and Telstar certifi- on different but also the cates, Airsignal Inter- main that Bell also difference is Mountain does not national, provide provide Inc. a certificate to mobile for- secretarial service such call retention, paging Cheyenne warding, message holding, service to the cities of call patching surrounding territory and Laramie but and so forth. The evidence disclosed operations never commenced and at its re- that both Rule and Telstar have leased lines quest, repre- patch with Mountain Bell and a mobile unit certificate was canceled. This competition provide sents consideration that was con- into them and communication from a templated at time. mobile Bell that a Mountain subscriber. ary coverage service areas based actual frequencies difference in radio utilized estimates, prob- rather than then serious and authorized the FCC. The character presented lems elsewhere in the state could of services available would seem to be the avoided; finally be would same.” We also observe that VHF and benefit from limited because UHF are distinctions without a difference. competitors range would offer wider Rule and just Telstar could have been 9-4-114(c)(ii)(E), of services. Thus under widely separated they had both been on the W.S.1977, Cum.Supp.4 we must uphold same radio frequency band but with differ- finding the PSC’s of fact there assigned ent lengths. wave The district public need and convenience. judge then concluded that would not be ground for reversal and was within the weight given ultimate be evi expertise but that it a. “thin dence before PSC as a trier of fact is to rely reed” for Telstar to on in the face of a agency light determined competition. expertise experience of its mem We significant findings consider the most bers in such matters. Pan American Petro (1) fact of the protest PSC are that Corporation leum v. Wyoming Oil and Gas upon competitive Telstar is based factors Commission, Wyo.1968, Conservation allegations that its are that certification P.2d 550. We will not judg substitute our of Rule into Cheyenne ment for that of the if the *5 PSC’s decrease the market available to Telstar supported by decision is substantial evi and make survival an economic uncertain- Sage Club, Employment dence. Inc. v. Se ty-Rule would become a competi- bona fide curity Wyoming, Wyo.1979, Telstar; tor with (2) the PSC has is, 601 P.2d 1306. We think it that it moved in the position area of RCC’s from a seems to meet the standard of relevant of monopoly a regu- of adequate support evidence a conclusion lated as the most effective Sage as set out in Club. providing means of reliable service to the challenges next the PSC’s public. oper conclusion that because Rule’s service
ated
a VHF level while Telstar’s was on
this court held in Dubois Tele
As
one,
a
they
UHF
were not of like
phone
States,
character.
Exchange v.
supra
Mountain
However,
this conclusion was not
37-2-205(a)
essential
fn.
contemplate
does not
to the
grant
decision to
the redefinition of
that
one
will be
agree
service area. We
a
convenience and ne
judge
district
when in his letter
cessity
he
for furnishing service within a certi
stated that
it was difficult
for him “to
ficated area. The
anticipates
section
that
any
conceive
practical difference in the na more
than one
co-exist
one
ture or character of services furnished by
area under
may
“just
such terms as
each of the RCC’s in this case other than
recognized
reasonable.”
It has been
that
W.S.1977,
9-4-114(c),
“(ii)
4. Section
1980
agency
Cum.
Hold unlawful and set aside
Supp.:
action, findings and conclusions found to be:
“(A) Arbitrary, capricious, an abuse of dis-
“(c)
To the extent
make
cretion or otherwise not in accordance with
presented,
reviewing
decision and when
law;
questions
court shall decide all relevant
of
“(B) Contrary
pow-
right,
law,
to constitutional
interpret
statutory
constitutional and
er, privilege
immunity;
provisions,
plicability
meaning
ap-
and determine the
“(C)
statutory jurisdiction,
In excess of
agency
au-
of
terms
an
action.
thority
limitations,
determinations,
lacking statutory
making
following
right;
court shall review the whole record or those
parts
“(D)
party
procedure
itof
cited
and
prejudicial
Without observance of
re-
due account
law;
quired
shall be taken of the rule of
error.
reviewing
“(E) Unsupported by
The
shall:
court
substantial evidence
“(i) Compel agency
unlawfully
agency
action
with-
in a case reviewed on the
an
unreasonably delayed;
hearing provided by
held or
statute.”
Light Compa
Company v. Pacific Power &
not, without ef
service
one dominant
fact
Wyo.1964,
247 12.08, supplemented 83, as to Rule pursuant (1925). S.Ct. L.Ed. See 37-1- §§ W.R.A.P., and to issues raised before 101(a)(vi), 37-1-102, 37-2-112, 37-2-119, * * *” W.R.A.P.; 12.09, agency. 37-2-121, 37-2-122, 37-2-205, 37-2-219, Bonham, Wyoming Bancorporation Wyo. v. 37-3-101, 37-3-114, 37-6-101, 37-8-106, 1974, 432, 527 P.2d 37-8-107, 37-8-108, 37-8-201, 37-8-202, 37-8-501, 37-10-102, 37-11-102, W.S.1977. Affirmed.6
In the exercise of this authority, competi- Justice, ROONEY, specially concurring. tion indirectly, but such regulation is not purpose the basic for the I concur with the result reached activities of the Public Service Commission. majority opinion generally expressed views I therein. have some diffi The record in this case reflects that culty with concept “regu the term and action of the Public Service Commission competition” majority lated used was conducive to the maintenance of effi- e., opinion, i. a purpose for Public Service basis, cient service. I On con- Commission action. Free is the cur. system. cornerstone of our economic Public not Service Commission does purpose
for its regulation competi
tion-although regulation may indirect
ly result its proper from activities. The given
Public Service Commission has been police power under regulate
state to rates of utilities and establish and maintain efficient and safe KEITH, Keithco, William R. d/b/a service without discrimination them. (Defendant), Telephone Pacific Telegraph & Co. v. Eshle man, 640, (1913); 166 Cal. 137 P. Ten nessee Electric Power Co. v. Tennessee Val BURZYNSKI, Lawrence F. 366,
ley Authority, 306 U.S.
59 S.Ct.
(Plaintiff).
Appellee
(1939);
L.Ed. 543
Bilton Machine Tool Co.
No. 5335.
Illuminating
v. United
110 Conn.
(1930);
rehearing denied 325 U.S. S.Ct. (1945); Corporation L.Ed. 2004 State
Commission of Kansas v. Wichita Gas
U.S.
S.Ct.
(1934); People of State of New York ex rel. Gaslight
Woodhaven Co. Public Service York,
Commission of New U.S. used, terminology though fortunately 6. This has been difficult case to deal with in presents gave to this court a field of Mr. us hint of the regulation experience dbu, meaning with which we have no of such terms as 37 VHF and parties explained, have not made record before UHF. “FX line” was not presents complete hqwever. apparently adopted the PSC which back- has The PSC ground regulation. “regulated competition” refers definition of disclosed 1974 case of which the PSC could take in briefs filed with the district court but it does judicial notice but we do not have the benefit of not set it out in its order. While we often have the record in that case nor at, do we have the parties getting out ferret what are brief- benefit of Docket Nos. 9658 Sub 1 and 9438 comprehensive ing and more 2, apparently Sub 1978 cases before the PSC helped in the work this court in this enlightened which it relied for an view of case. regulation. parties RCC have not defined