State v. Two Way Radio Service, Inc.

158 S.E.2d 855 (1968)

272 N.C. 591

STATE of North Carolina ex rel. UTILITIES COMMISSION v. TWO WAY RADIO SERVICE, INC., Applicant.

No. 546.

Supreme Court of North Carolina.

February 2, 1968.

*861 Edward B. Hipp, Raleigh, for North Carolina Utilities Commission.

E. T. Bost, Jr., and Ronnie A. Pruett, Concord, for Concord Telephone Co.

Vaughan S. Winborne, Raleigh, for Two Way Radio Service, Inc.

*862 Joyner & Howison, Raleigh, amicus curiae.

LAKE, Justice.

Each of the findings of fact made by the Commission is supported by competent, material and substantial evidence in view of the entire record. Each such finding is, therefore, binding upon the reviewing court. State ex rel. Utilities Commission v. Carolina Coach Co., 269 N.C. 717, 153 S.E.2d 461; State ex rel. Utilities Commission v. Carolina Telephone & Telegraph Co., 267 N.C. 257, 269, 148 S.E.2d 100; State ex rel. Utilities Commission v. Champion Papers, Inc., 259 N.C. 449, 130 S.E.2d 890.

The superior court was in error in sustaining the applicant's Exception No. 3 to the order of the Commission, this exception being that the Commission erred in failing to find certain facts, set forth in the foregoing statement of facts. The superior court may not make findings of fact or reverse an order of the Utilities Commission on the ground that the Commission should have found the facts to be as the court believes the evidence indicates. The superior court may, in proper cases, remand the matter to the Commission for a finding by it upon a question of fact as to which the Commission made no finding, or may reverse or remand because a finding made by the Commission is not supported by competent and substantial evidence before the Commission, but it may not reverse the order of the Commission because the Commission did not find facts which the court believes it should have found. See State ex rel. Utilities Commission v. Haywood Electric Membership Corporation, 260 N.C. 59, 131 S.E.2d 865. The Commission, not the reviewing court, is the fact finding body. The court's function, upon an appeal from an order of the Commission, is set forth in G.S. 62-94. Furthermore, the evidence before the Commission would not support the findings which the superior court said the Commission should have made with reference to the protestant's intent to offer communication service between two vehicles, between a vehicle and the dispatcher in the office of the owner of the vehicle or between any of these and the protestant's operator. Finally, upon this question, the other facts which the superior court held that the Commission should have found would have added nothing of consequence to what the Commission did find concerning differences in the two proposed services. The applicant's Exception No. 3 to the order of the Commission cannot, therefore, be deemed a sufficient basis for reversing that order.

The judgment of the superior court was that the order of the Commission be reversed and that the cause be remanded to the Commission, with directions to grant to the applicant "a certificate of convenience and necessity as applied for." The application was for "a certificate of convenience and necessity to operate as a common carrier in intrastate communications providing mobile radio service with interconnection with existing telephone service." (Emphasis added.) In the similar case of State ex rel Utilities Commission v. Carolina Telephone & Telegraph Co., supra, we said:

"Even if the present record were sufficient to support the order granting the Applicant a certificate of public convenience and necessity `to act as a common carrier of communications providing mobile radio service,' the Commission had no statutory authority to require Carolina [the telephone company there involved] to interconnect the Applicant's radio communications system with Carolina's land telephone system."

For the reasons there stated, no such interconnection could be required of the protestant in the present case.

There remains for consideration the question of whether, upon the facts found by the Commission, there was error of law in its refusal to grant to the applicant a certificate *863 of public convenience and necessity for its proposed operation without such interconnection, the record showing that the applicant sought such a certificate without interconnection if interconnection could not be had. The determinative questions upon this phase of the case are: Is the protestant authorized by its certificate of convenience and necessity, previously issued, to render a service substantially similar to that proposed by the applicant? If so, may a certificate be issued to the applicant when the protestant is ready, able and willing to render in the same area such substantially similar service? See State ex rel. Utilities Commission v. Carolina Coach Co., supra.

In accordance with our decision in State ex rel. Utilities Commission v. Carolina Telephone & Telegraph Co., supra, the Commission concluded that one rendering the service proposed by the applicant is a public utility, as that term is defined in G.S. § 623(23); that the Commission has jurisdiction to grant a certificate of convenience and necessity for such service; that the public convenience and necessity, within the area in question, justifies the service proposed; and that the applicant is fit, ready, willing and able to provide such service. There is no exception to these conclusions and they are supported by the facts found by the Commission. It does not, however, follow necessarily that the applicant is entitled to the issuance of such certificate to it.

The applicant did not except to the Commission's Findings of Fact Nos. 5 and 6 and, as we have seen, there is ample evidence in the record to support these findings. They establish that the protestant proposes to provide and is ready, able and willing to provide "Improved Mobile Telephone Service" in this area and that the principal differences between the two proposed services are as stated by the Commission. The Commission's Conclusion No. 5 necessarily implies that the certificate heretofore granted to the protestant, authorizing it "to render telephone service," grants to it the right to furnish, within its service area, its proposed "Improved Mobile Telephone Service." There is no error in this implied conclusion.

A certificate of public convenience and necessity, which authorizes its holder to render "telephone service," does not limit the holder to the practice of the art of telephony as it was known and practiced on the date the certificate was issued, nor to the use therein of devices, equipment and methods then in use. Obviously, it is the intent of such a certificate to authorize the holder to improve its service by adopting and using new and improved devices and methods for telephonic communication. The holder of such a certificate may, indeed, in a proper case, by proper procedures and upon proper proof, be required by the regulatory commission to do so. G.S. § 62-32; G.S. § 62-42. The very term "mobile telephone service" shows that the art of telephony has now been broadened to include the transmission of the human voice by a system of communication not wholly dependent upon wires.

The Commission and the courts may take judicial notice of the well known fact that telephone companies today habitually transmit conversations by electrical impulses traveling through part of the intervening space without proceeding upon wires. These transmissions are a part of "telephone service" as that term is used and understood today. See Commercial Communications, Inc. v. Public Utilities Commission of the State of California, 50 Cal. 2d 512, 327 P.2d 513, app. dism. and cert. den., City of Los Angeles v. Public Utilities Commission of Cal., 359 U.S. 119, 341, 79 S. Ct. 722, 896, 3 L. Ed. 2d 674, 927. It is not necessary for us in this case to determine when such wireless transmission of the human voice, or other sound, ceases to be a part of "telephone srevice." It suffices for the present to say, as we do, that that point will not be reached by the mobile service proposed by the protestant here. Consequently, the protestant is authorized by the *864 certificate of public convenience and necessity heretofore issued to it to offer to the public, and to render in its service area, the mobile telephone service it proposes in this record. It follows that its certificate entitled it to the same protection against competition in this portion of "telephone service" that its certificate affords it with reference to other portions of that service.

In State ex rel. Utilities Commission v. Carolina Telephone & Telegraph Co., supra, we said:

"[T]he basis for the requirement of a certificate of public convenience and necessity, as a prerequisite to the right to serve, is the adoption, by the General Assembly, of the policy that, nothing else appearing, the public is better served by a regulated monopoly than by competing suppliers of the service. The requirement of such a certificate is not an absolute prohibition of competition between public utilities rendering the same service. [Citations omitted.] There is, however, inherent in this requirement the concept that, once a certificate is granted which authorizes the holder to render the proposed service within the geographic area in question, a certificate will not be granted to a competitor in the absence of a showing that the utility already in the field is not rendering and cannot or will not render the specific service in question."

We further said in that case that "the two services need not be identical in every respect in order to give the utility already serving the area the prior right." Obviously, a "mobile telephone service" is not a "general telephone service," but it is an adjunct or part of a general telephone service which has developed through the gradual evolution of the art of telephony. Neither the answering service nor the message relaying service proposed to be rendered by the applicant is an inherent and necessary part of either of the proposed systems of communications. This is a subsidiary service which the applicant proposes to provide by means of a contract with an existing answering service. It is, of course, immaterial whether this subsidiary service is to be supplied by the applicant through its own employees or through an independent contractor. The material circumstance is that this answering service is not, in itself, a public utility within the meaning of G.S. § 62-3(23). No certificate of public convenience and necessity is required as a prerequisite to engaging in the business of rendering such a service. The issuance of a certificate for the supplying of "telephone service" gives the certificate holder no exclusive or preferential right to supply a "telephone answering service" or a "message relaying service." Conversely, one who offers or supplies such answering or relaying service does not thereby become eligible for a certificate authorizing him to render a "telephone service" in competition with an established telephone utility holding such a certificate for the area in question. These non-utility services are not determinative of the question of whether the proposed "telephone service" is substantially the same as that of the existing company.

The proposed availability of the "personal paging unit" in the applicant's proposed service does not make the applicant's proposed public utility service substantially different from the service of the protestant. The protestant, having a certificate authorizing it to render mobile telephone service and engaging in the rendition of such service, can be required by the Utilities Commission to install this incident of that service, if and when the Commission properly finds that public convenience and necessity requires it to be added. G.S. § 62-42.

There being no substantial difference in the nature of the mobile communication service proposed by the protestant and the mobile communication service proposed by the applicant, there was no error in the conclusion of the Commission that the application *865 for a certificate of public convenience and necessity should be denied. The judgment of the superior court is, therefore,

Reversed.