State Ex Rel. Util. Com'n v. So. Bell Tel

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217 S.E.2d 543 (1975)

288 N.C. 201


No. 93.

Supreme Court of North Carolina.

August 27, 1975.

*547 Edward B. Hipp, Com'n Atty., and E. Gregory Stott, Associate Com'n Atty., Raleigh, for plaintiff-appellant.

Joyner & Howison, R. C. Howison, Jr., Raleigh, and Moore & Van Allen, James O. Moore, Charlotte, Drury B. Thompson, John A. Boykin, Jr., and Clinch G. Norsworthy, III, Atlanta, Ga., Harvey L. Cosper, Charlotte, for defendant-appellee.

SHARP, Chief Justice.

For the reasons stated in the opinion of the Court of Appeals we agree that the General Assembly intended Article 8 to apply to all public utilities doing business in this State whether they be foreign or domestic corporations and even though they are also engaged in interstate commerce.

G.S. § 62-160 provides that no public utility shall pledge its credit or property for the benefit of any bondholder or stockholder or any affiliated business interest without first applying to and receiving permission from the Commission so to do. G.S. *548 § 62-161(a) provides, inter alia, that no public utility shall issue any securities unless and until, and then only to the extent that, after investigation by the Commission of the purposes and uses of the proposed issues, the Commission by order authorizes such issue. "Public utility," as used in Article 8 and defined by G.S. § 62-3(23), par. a 6 includes any corporation, "whether organized under the laws of this State or under the laws of any other state or country, now or hereafter owning or operating in this State equipment or facilities for: . . . [c]onveying or transmitting messages or communications by telephone or telegraph, or any other means of transmission, where such service is offered to the public for compensation." G.S. § 62-171, which authorizes the Commission "to agree" with any corresponding agency which is empowered by another state to regulate and control the amount and character of securities to be issued by a public utility doing business in such state and in this State, clearly contemplated the Commission's regulation of a public utility which is also engaged in interstate commerce.

To construe Article 8 according to Southern Bell's contentions would set at naught the express words of the foregoing statutes. A statute must be construed as written and where, as here, the language is clear and unambiguous, the Court must give it its plain and definite meaning. 7 N.C.Index 2d, Statutes § 5 (1968).

The question presented by the Commission's appeal to this Court is whether, as applied to Southern Bell, Commission's Rule R1-16, that "[n]o public utility shall pledge its assets, issue securities, or assume liabilities of the character specified in G.S. § 62-160 and § 62-161, except after application to and approval by the Commission," imposes an undue burden on interstate commerce in contravention of the Commerce Clause of the United States Constitution. The Court of Appeals held that "constitutional limitations apply under the factual situation presented by this case to prevent the Commission from enforcing the provisions of Article 8 against Southern Bell," and we also affirm that holding.

Indisputably Southern Bell is engaged in interstate commerce. The business of conducting telecommunications between persons in different states constitutes interstate commerce subject to the regulation of Congress. 15 C.J.S. Commerce § 31 (1967). "[I]t is not only the right, but the duty, of Congress to see to it that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation." Pensacola Tel. Co. v. West. Union Tel. Co., 96 U.S. 1, 9, 24 L. Ed. 708, 710 (1877). See 15 Am.Jur.2d, Commerce § 2 (1964).

In the four states in which Southern Bell operates its total investment in telephone plants on 31 December 1972 amounted to $4,740,000,000. Of this sum, approximately 42% was invested in Florida; 28½% in Georgia; 17% in North Carolina; and 11½% in South Carolina. Of the 8,282,000 telephones Southern Bell had in service on that date, about 12% were in South Carolina; 18% in North Carolina; 29% in Georgia; and 41% in Florida. More than 30% of the operating revenues received by Southern Bell from provision of communications services in the four states is attributable to its interstate operations.

During the five years between 1967 and 1972, Southern Bell's total investment in telephone plants increased approximately 50%, and it sold debentures and intermediate-term notes to the public in the amount of $1,075,000,000. Between 1968 and 1972, construction costs increased more than 44%. During 1973 these costs were expected to be about $1,030,000,000, and more than one-half of this amount would have to come from the sale of debentures and additional equity investment by A. T. & T. In all but six working days during 1972, Southern Bell made short term borrowings, and, in the past five years, one securities issue of long term and intermediate-term debt has *549 been made each year. Southern Bell's entire credit and net income are pledged to the payment of the issue. The proceeds are used to meet the company's needs and objectives in the four states in which it operates but none of the securities are earmarked for use in a particular state.

As the Court of Appeals pointed out, "Under the stipulated facts there can be no question that Southern Bell's continued capability to provide facilities adequate for its ever-growing business, including its interstate business, is directly dependent upon its continuing issuance of securities. It is apparent that at least for the foreseeable future a very large portion of the tremendous volume of capital funds required simply cannot be raised in any other way. Therefore, State regulation and control over issuance of these securities will necessarily involve a large degree of State regulation and control over Southern Bell's ability to carry on its interstate activities." Utilities Comm. v. Telegraph Co., 22 N.C. App. 714, 720, 207 S.E.2d 771, 775 (1974).

Clearly the right to raise money to carry on the business of interstate telecommunications is an essential part of the operation for, if the utility cannot secure funds through the sale of its securities, it cannot function. If the Commerce Clause is broad enough to include telecommunications, it is broad enough to include the means without which such communication cannot be furnished. Whitman et al., Public Service Commission v. Northern Cent. Ry. Co., 146 Md. 580, 589, 127 A. 112, 115 (1924).

To date Congress has not acted to place the regulation of the securities of interstate utilities under a single governmental agency. Nor has the United States Supreme Court dealt with a case involving a state's attempt to regulate the issuance of securities by a utility engaged in multi-state operations. See Laird v. Baltimore & Ohio R. R. Co., 121 Md. 179, 191-192, 88 A. 348, 352 (1913); State Regulation of Interstate Utility SecuritiesThe Need for a Reappraisal, 32 Journal of Air Law and Commerce 262 (1966). General principles governing analogous situations, however, are relevant and controlling.

Where Congress has not regulated a matter of interstate commerce, the Commerce Clause protects the national commerce from inimical state legislation without the necessity of such legislation. The absence of federal regulation does not empower the state to directly regulate or materially burden interstate commerce. The Supreme Court will invalidate local regulations which impinge either directly or indirectly upon the means or instruments employed in that commerce. At the same time it leaves to the state wide scope for the regulation of matters of local concern, even though the regulation incidentally affects commerce, "provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern." Southern Pacific Co. v. Arizona, 325 U.S. 761, 769-770, 65 S. Ct. 1515, 1520-1521, 89 L. Ed. 1915, 1924-1925 (1945). See Bibb v. Navajo Freight Lines, 359 U.S. 520, 523-524, 79 S. Ct. 962, 964-965, 3 L. Ed. 2d 1003, 1006-1007 (1959); Western Union Telegraph Co. v. Kansas ex rel. Coleman, 216 U.S. 1, 26, 30 S. Ct. 190, 197, 54 L. Ed. 355, 365 (1910); 15 C.J.S. Commerce § 14 (1967).

The postulate applicable to this case is that "state legislation is invalid if it unduly burdens that commerce in matters where uniformity is necessarynecessary in the constitutional sense of useful in accomplishing a permitted purpose. Where uniformity is essential for the functioning of commerce, a state may not interpose its local regulation." Morgan v. Commonwealth of Virginia, 328 U.S. 373, 377, 66 S. Ct. 1050, 1053, 90 L. Ed. 1317, 1322 (1946).

The case of South Covington & C Street R. Co. v. Covington, 235 U.S. 537, 35 S. Ct. 158, 59 L. Ed. 350 (1915), involved an ordinance of the City of Covington, Kentucky, which purported to impose certain requirements upon a street railway corporation *550 transporting passengers across an interstate bridge over the Ohio river into Cincinnati. In invalidating the ordinance as a direct burden upon interstate commerce and beyond the power of the State, the Supreme Court said: "If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars. . . . `[C]ommerce cannot flourish in the midst of such embarrassments.'" (Emphasis added.) Id. at 547-548, 35 S. Ct. at 161, 59 L. Ed. at 354.

In part, the Supreme Court of Illinois duplicated the rationale of Covington when it decided United Air Lines, Inc. v. Illinois Commerce Commission, 32 Ill. 2d 516, 207 N.E.2d 433 (1965). At that time the system of United Air Lines, a corporation engaged in providing air transportation for persons, property, and mail between 110 cities in 32 states and the District of Columbia, consisted of 17,420 route miles, of which 158 were within Illinois. In holding that the Illinois Commerce Commission had no jurisdiction to require United to secure its authorization before issuing its securities, the Court said:

"The power given the Commission to approve or disapprove the issuance of stocks and securities necessarily affects United's interstate activities, for if it cannot secure funds through the sale of its stocks and securities its continued existence in the highly competitive interstate air transportation industry would be difficult, if not impossible, to sustain. . . .

"If Illinois can exercise the power to approve or disapprove the issuance of United's securities because it transacts business here, then so also can each of the other sixteen States where United provides intrastate service. There would thus be a total of seventeen jurisdictions asserting the power to approve or reject any issuance of stock proposed by United. The task of seeking and gaining approval from such a number of States would be unjustifiably expensive, time consuming and burdensome, and could create delay which would directly impair the usefulness of United's facilities for interstate traffic. Just as important, each independent regulating authority would be required to apply locally defined standards of public interest and locally defined rules in order to approve or disapprove or, as our statute suggests (sec. 21), to conditionally approve a single issuance of securities. The result, we believe, would be chaotic. The issuance of securities is a single, indivisible act. It cannot be fractionalized and given portions allocated to specific States.

"It is suggested by the Commission that it is not proper to consider the `possibility' of multi-state regulation and its effects, the implication being that the limitations on the powers of a State over interstate commerce could not come into effect until there is an actual attempt at multiple regulation or an actual obstruction of commerce. The cases, however, reject this view and demonstrate that the possibility of conflict or dual regulation, may be sufficient to curtail powers sought to be asserted by an individual State over interstate commerce where such commerce might be impeded by conflicting and varying regulations. See: South Covington & Cincinnati Street Railway Co. v. City of Covington, 235 U.S. 537, 35 S. Ct. 158, 59 L. Ed. 350, 354; Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 773-775, 65 S. Ct. 1515, 89 L. Ed. 1915, 1927-1928; Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S. Ct. 962, 3 L. Ed. 2d 1003; Application of United Air Lines, Inc., 172 Neb. 784, 112 N.W.2d 414; cf. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767, 775, 67 S. Ct. 1026, 91 L. Ed. 1234, 1247." Id. at 525-526, 207 N.E.2d at 437-438. See In re Application of United Air Lines, Inc., 172 Neb. 784, 791-792, 112 N.W.2d 414, 419 (1961); 64 Am.Jur.2d, Public Utilities § 263 (1972).

We find the reasoning of the Illinois Court in United Air Lines, Inc. v. Illinois Commerce Commission, supra, inescapable.

*551 Any requirement for prior approval, by its very nature, contemplates that such approval may not be given. If the North Carolina Commission disapproves a proposed securities issue and the Georgia Commission approves it, Southern Bell is stymied, for it is put in an impossible position. In our view, the mere possibility of such a conflict, as applied to Southern Bell under the facts of this case, makes Rule R1-16, and the statutes which authorize the rule, a direct regulation and an impermissible burden on interstate commerce.

Further, should the North Carolina Commission attempt to exercise its asserted power to authorize or disapprove a securities issue, G.S. § 62-161 requires that it investigate "the purposes and uses of the proposed issue, and the proceeds thereof" before doing so. As Judge Parker noted in his cogent opinion in this case, "[T]he inevitable consequence would be that the Commission would be required to inquire into and pass upon the needs of Southern Bell and its customers in Florida, Georgia and South Carolina, matters which are clearly beyond the Commission's lawful authority." 22 N.C.App. at 721, 207 S.E.2d at 776.

On the stipulated facts, the decision of the Court of Appeals which reversed the order of the North Carolina Utilities Commission is


COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.

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