49 A.D.2d 126 | N.Y. App. Div. | 1975
These are proceedings pursuant to CPLR article 78 to review a determination of the Public Service Commission which granted the application for a certificate of public convenience and necessity for the operation of a maritime mobile radio station and ordered the petitioner to execute an interconnection agreement with the New York Telephone Company consistent with the terms of the respondents’ order.
Tri-City Telephone Company,. Inc. (Tri-City) is a radio telephone utility under the concurrent jurisdiction of the Federal Communications Commission (FCC) and the Public Service Commission of the State of New York (PSC). It was licensed by the FCC in 1968 to operate a maritime radio station in the area of the Mohawk and Hudson Rivers and presently provides an interconnected service to vessels in waterways within 40 to 60 miles of its transmitter site located in Schenectady, New York, although it does not have an interconnection agreement with New York Telephone Company (NYT). Tri
Following public hearings before a hearing examiner, the PSC granted a certificate of public necessity to Tri-City to operate a maritime mobile radio station interconnected to NYT’s landline telephone system, conditioned upon (1) the execution of an interconnection agreement between NYT and Tri-City with terms consistent with the economic arrangement advanced by the hearing examiner, (2) filing of a tariff by TriCity, and (3) filing of a concurrence by Tri-City in NYT’s toll tariff. No agreement was arrived at by Tri-City with NYT, and this proceeding was commenced on October 16, 1974.
Proceeding to the merits, the issue presented is whether the determination of the PSC regarding the interconnection agreement is supported on the entire record by substantial evidence. Arguing strenuously that there are no distinctions between the functions of radio telephone companies and land-line telephone companies, Tri-City urged that NYT toll charges be divided on the basis of a cost-based formula which is used to divide charges between landline telephone companies. (Referred to as the NASS formula designed to compensate small landline telephone companies for costs in handling toll calls between them and NYT.)
Petitioner’s argument was rejected by the PSC which found that the average costs incurred by small independent landline telephone companies in providing toll service are not necessarily relevant to Tri-City’s marine radio operation and cannot be used as a basis for division of toll revenues. It was also found
The scope of judicial review of administrative determinations is very limited. There is no occasion for judicial intervention in matters involving the expertise of the PSC in the technical areas of regulating public utilities unless the determination sought to be reviewed is found not to be supported by substantial evidence in the record or by information properly considered. The courts have no right to review the facts generally as to weight of the evidence, beyond seeing to it that there is substantial evidence. (Matter of County of Orange v Public Serv. Comm, of State of N. Y., 37 NY2d 762; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222; Matter of Campo Corp. v Feinberg, 279 App Div 302, 307, affd 303 NY 995.) It is clear from the record that the determination of the PSC has a rational basis and is supported by substantial evidence, and, therefore, cannot be disturbed.
We cannot agree with respondents’ contentions that this proceeding is premature, and that petitioner has failed to exhaust its administrative remedies. The certificate of public convenience and necessity issued to petitioner becomes effective automatically when it files the required documents, and there will be no further inquiry or question as to the appropriateness of granting the certificate. Thus, the grant of the certificate was a final determination properly reviewable by an article 78 proceeding even though the certificate would not become effective until there was compliance with the procedural requirements. Petitioner is seeking review of only the
We are also of the opinion that petitioner’s failure to apply to the PSC for a rehearing (Public Service Law, § 22) does not bar this proceeding, since review may be sought without a rehearing where, as here, the time to make application for a rehearing has elapsed. (CPLR 7801, subd 1.)
The determination should be confirmed, and the petition dismissed, without costs.
Sweeney, J. P., Kane, Larkin and Reynolds, JJ., concur.
Determination confirmed, and petition dismissed, without costs.