Opinion
No. 31303
Decided August 4, 1948.
Public Utilities Commission — Telephone companies — Building-owner subscriber and tenants not joint users within tariff — Measured service, central switchboard, extensions and individual telephones — Joint users not in subscriber's office, suite or adjacent office — Commission may approve amended tariff permitting discontinuance of such service, when — Continuance of such service discriminatory, when — Sections 614-13, 614-14 and 614-15, General Code — Telephone company to discontinue service which violates tariff, when.
1. Where the owner of an office building subscribed for "measured" telephone service, and, through a central switchboard located in such building and connected with 139 telephones and 28 extensions, allowed his tenants to use such service, such subscriber and tenants were not joint users within the meaning of the provisions of tariff filed with the Public Utilities Commission that joint users must be located on the subscriber's premises and in the same office or suite of offices as the subscriber, or in an office immediately adjacent to and connected therewith.
2. In such case, the Public Utilities Commission has the power to approve an amended tariff permitting the telephone company to discontinue such service, even though the service has been furnished for more than 18 years.
3. Where the telephone company furnishing such service files an amended tariff with the Public Utilities Commission indicating that the company will not furnish the same service to others under similar or same circumstances as such subscriber, the continuance of such service is discriminatory in violation of Sections 614-13, 614-14 and 614-15, General Code.
4. Where a telephone company properly determines that telephone service it has been furnishing to a subscriber is violative of its tariff on file with the Public Utilities Commission, the company has good and sufficient reason, and it is its duty, to discontinue such service.
APPEAL from the Public Utilities Commission.
This is an appeal, pursuant to Section 544, General Code, from a final order of the Public Utilities Commission of Ohio.
The Building Industries Exhibit, Inc., appellant herein, complainant before the Public Utilities Commission, will hereinafter be called the complainant. The Public Utilities Commission, appellee herein, will hereinafter be called the commission, and The Cincinnati Suburban Bell Telephone Company will hereinafter be called the telephone company.
The complainant owns and operates an office building in the city of Cincinnati, Ohio. In 1927, the space in complainant's building was designed and operated as salesrooms and exhibit space for the products of tenants who were members of the associated building industries. Wendell B. Campbell, president of the complainant, on cross-examination testified before the commission as follows:
"Q. When you started you couldn't exhibit these building materials in these little offices, could you? A. When we started back in 1927 — back in 1926, we didn't expect to have offices at all, and where the present offices are was originally laid out for exhibition space.
"Q. That was true when you made your first arrangement with the telephone company, wasn't it? A. Yes. We were going along in that way, and when we incorporated that was what we had in mind."
Since, at its inception in 1927, complainant's tenants were engaged in related industries and were out of the building a great part of the working day with no one to receive telephone calls during their absence, complainant decided to furnish its tenants with telephone service through a central switchboard operated with lines to each tenant and with extension and listings as requested and needed. Negotiations toward the establishment of such a switchboard service were commenced with the telephone company, resulting in an agreement between the complainant and the telephone company for the installation of a central switchboard with a type of service limiting free outgoing calls to 200 per month with four cents per call on all additional outgoing calls. This service has continued to date with all charges paid by complainant, except only the exact charges for long distance calls, which charges are collected by complainant from its tenants.
The tariff in effect during the period from 1927 to 1945 provided in part as follows:
"1. In general, exchange service is furnished for the exclusive use of the subscriber, his representatives, employees, and members of the subscriber's immediate family. A joint user, therefore, may be defined as a person, firm or corporation, whose use of a subscriber's service is not contemplated under the terms of a subscriber's contract, but who, subject to the consent of the subscriber and to the rules and regulations specified in this general exchange tariff, is privileged to use the subscriber's service. To facilitate this use of the service, each joint user is allowed one listing in the alphabetical section of the directory without charge."
"4. The joint user must be located on the subscriber's premises and in the same office or suite of offices as the subscriber, or in an office immediately adjacent to and connected therewith. * * *"
"12. Not more than four joint users are allowed in connection with individual or party line flat rate service or for each flat rate private branch exchange trunk line."
Beginning in 1929, the character of the use and occupancy of complainant's building changed drastically from exhibit or display space to private offices; the number of tenants increased; the number of trunk lines increased to 30; and the number of main stations increased to 139, plus 28 extension telephones. In 1945, the telephone company adopted a new tariff, the pertinent parts of which are as follows:
"12. Not more than four joint users are allowed in connection with the service of any subscriber.
"Note: Subscribers, who as of December 15, 1945, were furnished in excess of four (4) joint users in connection with their service, in accordance with prior provision of this General Exchange Tariff, shall be permitted to retain, as a maximum, at their then existing premises, the number of joint users furnished as of said date."
This tariff was filed with and approved by the commission.
On May 24, 1946, the complainant filed a complaint with the commission, alleging that the new tariff, in placing a limit on all joint-user service, is an unjust and unreasonable restriction on the service which complainant had been receiving and is unjustly preferential with the service available to permanent tenants of hotels maintaining a private branch exchange.
The telephone company filed an answer and cross-complaint asking that the amended tariff be amended by deleting the following paragraph from such amended tariff:
"Note: Subscribers, who as of December 15, 1945, were furnished in excess of four (4) joint users in connection with their service, in accordance with prior provision of this General Exchange Tariff, shall be permitted to retain, as a maximum, at their then existing premises, the number of joint users furnished as of said date."
The Commission after a full hearing found:
"1. The service furnished Building Industries Exhibit, Inc., by The Cincinnati Suburban Bell Telephone Company since 1927 has been in violation of its tariff provisions contained in paragraph 4 of Section 11, Original Sheet 1, effective March 1, 1926.
"2. The service furnished since 1927 has been discriminatory within the meaning of the provisions of G. C. 614-13-14.
"3. First Revised Sheet No. 1 of Section 11 of defendant's General Exchange Tariff P. U. C. O. No. 3 and the proposed amendment thereto as requested in the defendant's cross-complaint are reasonable and just and correct past discriminatory practices wrongfully permitted by defendant.
"4. The complaint of Building Industries Exhibit, Inc., should be dismissed and the amendment to First Revised Sheet No. 1 of Section 11 of defendant's General Exchange Tariff, P. U. C. O. No. 3 should be allowed, but in view of needs of complainant's tenants for service a period of two years from the date of this order is allowed these tenants and any others similarly situated to arrange for telephonic service.
"It is, therefore, ordered, that the complaint herein be, and the same hereby is, dismissed. And it is further
"Ordered, that the amendment proposed by defendant in its counter-complaint be allowed conditioned upon the filing of a proper tariff therefor, reserving in said tariff the right of subscribers, who as of December 15, 1945, were furnished in excess of four (4) joint users in connection with their service, a period of two years from the date of this order within which to make other arrangements for service."
From that order complainant has appealed to this court on the ground that such order is unreasonable and unlawful.
Mr. Robert Adair Black and Mr. Kenneth L. Sater, for appellant.
Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for appellee.
At the time complainant contracted with the telephone company and became a subscriber for its "measured service," the original general exchange tariff, effective March 1, 1926, was in effect. It remained in effect until 1945, when the telephone company adopted and filed a revised tariff effective December 15, 1945, which was approved by the commission. In the instant proceeding, on application of the telephone company, the authority to adopt the revised tariff of December 15, 1945, was granted by the commission, so that this appeal presents for our consideration the question whether the order of the commission approving the new tariff provision in this case is unreasonable or unlawful.
The complainant claims that the service rendered it by the telephone company was not in violation of the tariff provisions on file with the commission and effective at the inception of the service, and that complainant's tenants were true "joint users" within the meaning of such provisions.
Paragraph 4, Section 11, of the General Exchange Tariff, Original Sheet, Joint User Service, provided:
"The joint user must be located on the subscriber's premises and in the same office or suite of offices as the subscriber, or in an office immediately adjacent to and connected therewith. * * *"
Paragraph 12, Section 11, of the same General Exchange Tariff provided:
"Not more than four joint users are allowed in connection with individual or party line flat rate service or for each flat rate private branch exchange trunk line."
Determination of complainant's contention depends upon the meaning of the phrase, "located * * * in the same office or suite of offices * * * or in an office immediately adjacent to and connected therewith."
The complainant does not contend that the joint user was by users "in the same office or suite of offices," but does contend that the joint user was by users "in an office immediately adjacent to and connected therewith," citing for its authority definitions of the various words used in the phrase contained in such paragraph 4 of the tariff.
In construing the phrase in question, the words must be construed in the light of the purpose of the tariff. The tariff with respect to joint-user service showed that it was a special type of service furnished to provide for situations where a subscriber having more space than was needed for his own use rented part of that space to another person.
It is clear to the writer of this opinion that such joint-user service was never intended to be available for use as a telephone service for a general office building with one subscriber furnishing telephone service to all the tenants of such building, and, in the opinion of this court, the service rendered by the telephone company to complainant was in violation of the tariff provisions on file with the commission during the period of time under discussion in this case.
The complainant contends that even if such service did violate the tariff provisions on file with the commission, the telephone company should not be permitted to discontinue complainant's existing service because the telephone company has been rendering that service for more than 18 years and is estopped from such discontinuance. This contention is not supported by sound reason nor by the decisions in cases wherein the principle was urged. The Ohio Public Utilities Commission Act provides that the commission shall have power to regulate public utilities and shall have general supervision over the adequacy of service rendered by public utilities (Sections 614-3 and 614-12, General Code). The act provides that no public utility shall give any unreasonable preference or advantage to any person or firm (Sections 614-14 and 614-15, General Code). Sound reasoning compels the conclusion that a public utility cannot be required to render a service in violation of its filed tariffs prescribed by the act.
In the case of Midland Realty Co. v. Kansas City Power Light Co., 300 U.S. 109, 81 L.Ed., 540, 57 S. Ct., 345, it was hold:
"But the state has power to annul and supersede rates previously established by contract between utilities and their customers. It has power to require service at nondiscriminatory rates, to prohibit service at rates too low to yield the cost rightly attributable to it, and to require utilities to publish their rates and to adhere to them."
Complainant contends also that a public utility once having established a service, the service cannot be discontinued unless and until some good and sufficient reason is shown therefor. Citing New York Central Rd. Co. v. Public Utilities Commission, 129 Ohio St. 381, 195 N.E. 566, and Hocking Valley Ry. Co. v. Public Utilities Commission, 92 Ohio St. 9, 110 N.E. 521, L.R.A. 1918A, 267, Ann. Cas. 1917B, 1154.
In our opinion, when the telephone company in the instant case properly determined that the service being furnished to complainant violated its tariff, the company had good and sufficient reason to discontinue such service and it was its duty to do so.
Does the service presently rendered to complainant and its tenants constitute discrimination in violation of Sections 614-13, 614-14 and 614-15, General Code?
Section 614-13 provides:
"Every public utility shall furnish and provide with respect to its business such instrumentalities and facilities as shall be adequate and in all respects just and reasonable. All charges made or demanded for any service rendered, or to be rendered, shall be just and reasonable, and not more than allowed by law or by order of the commission. Every unjust or unreasonable charge made or demanded for any service, or in connection therewith, or in excess of that allowed by law or by order of the commission, is prohibited and declared to be unlawful."
Section 614-14 provides:
"No public utility shall directly or indirectly, or by any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person, firm, or corporation, a greater or less compensation for any services rendered, or to be rendered, except as provided in this act, than it charges, demands, collects, or receives from any other person, firm, or corporation for doing a like and contemporaneous service under the same, or substantially the same circumstances and conditions. Nor shall free service or service for less than actual cost be furnished for the purpose of destroying competition, and such free service and every such charge is prohibited and declared unlawful."
Section 614-15 provides:
"No public utility shall make or give any undue or unreasonable preference or advantage to any person, firm, corporation, or locality, or subject the same to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."
If, under the telephone company's general exchange tariff, the company is furnishing complainant and its tenants a service which it could not furnish to others under similar or the same circumstances, such service is discriminatory. In the instant case, since the telephone company by filing an amended tariff has clearly shown that it would not furnish the same service to others under similar or the same circumstances as the complainant, we must conclude that the service which complainant is receiving constitutes a discrimination which is prohibited under Section 614-15, General Code.
It is our opinion in the instant case that the service rendered by the telephone company to complainant was in violation of the tariff provisions on file with the commission; that the telephone company's knowledge of such violation does not estop the commission from ordering a discontinuance of such violation; and that the service which complainant is presently receiving from the telephone company is discriminatory and in violation of Section 614-15, General Code.
The order of the commission being neither unreasonable nor unlawful, the same is affirmed.
Order affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.