Court of Appeals of North Carolina, 1991

State ex rel. Utilities Commission v. Centel Cellular Co.

State ex rel. Utilities Commission v. Centel Cellular Co.
Court of Appeals of North Carolina · Decided August 20, 1991 · Greene, Phillips, Wells
103 N.C. App. 731; 407 S.E.2d 257; 1991 N.C. App. LEXIS 940

State ex rel. Utilities Commission v. Centel Cellular Co.

Opinion of the Court

PHILLIPS, Judge.

The appellants’ variously stated contentions amount to the following: The Utilities Commission erred by ordering cellular carriers to pay access charges to local exchange companies when providing wide area call reception to their cellular customers; the Commission should not have required the cellular carriers to compensate the LECs for lost tolls due to the implementation of WACR; paying these charges will thwart the development of WACR technology; the rate structure for cellular service should be divorced from the traditional rate structure for landline service because the technology is different.

After reviewing the whole record as required by G.S. 62-94 and finding that the Commission’s order is supported by substantial evidence, we cannot agree. In discharging its regulatory responsibilities the Commission must consider the charges that telephone companies make for their services and their “impact on the local exchange customers and only permit such additional service if the Commission finds that it will not jeopardize reasonably affordable local exchange service.” G.S. 62-110(b). Access charges were initially designed to provide the same levels of contribution to local rates that existed prior to AT&T’s divestiture and the implementation of access charges. Some toll revenues have been lost as a result of WACR. The evidence indicates that most cellular calls are made in business hours, the highest rate period, and in the absence of WACR would have been placed over the landline facilities. Thus, cellular calls displace remunerative revenues that traditionally go to the LECs and IXCs; revenues which directly contribute to the maintenance of reasonable local rates. Under the appellants’ scheme, a cellular customer faced with the choice of paying the long distance charges during business hours at the landline rate or paying the equivalent of the local rate under WACR will naturally use his cellular telephone as often as possible, thus cutting into LEC revenues.

*737The Commission has to view the disputed tariffs in light of the whole regulatory scheme, rather than in the isolated context of a new technology. The Commission’s decision is supported by both evidence and reason. That a different decision could have been reached is no basis for reversing the decision that was made. State ex rel. Utilities Commission v. Eddleman, 320 N.C. 344, 358 S.E.2d 339 (1987).

Affirmed.

Judge Wells concurs. Judge GREENE concurs in the result with a separate opinion.

Concurring Opinion

Judge GREENE

concurring in the result.

I agree with the majority that the Utilities Commission did not err in ordering cellular carriers to pay access charges to local exchange companies when providing WACR to their cellular customers. I disagree, however, that the speculative evidence of alleged lost toll revenues supports the Commission’s order.

If the only justification for the Commission’s order is the alleged lost toll revenues, the position suggested by the majority, then this Court must reverse the order for being “[unsupported by competent, material and substantial evidence in view of the entire record as submitted” and for being arbitrary. N.C.G.S. § 62-94(b)(5), (6) (1989). Although the testimony before the Commission established a potential for lost toll revenues, the evidence did not quantify the amount of any such lost revenues with any competent, empirical evidence. See In re Cellular Radio Telecommunications Companies, Docket No. P-100, Sub. 79, 75 P.U.R. 4th 327, 344 (N.C.U.C., June 6, 1986) (no competent, empirical evidence to quantify lost toll revenues). Furthermore, in a subsequent reconsideration order in which the Commission concluded that access charges were inappropriate for mobile-to-mobile interCGSA traffic, the Commission reasoned that the absence of evidence of the alleged lost toll revenues prohibited a finding that the access charges be assessed because of alleged lost toll revenues. In re Tariff Filings by Raleigh/Durham MSA, Fayetteville MSA, United Telespectrum, and Centel Cellular Co. to Establish Rates for Wide Area Call Reception, Docket No. P-100, Sub. 109 at 5 (N.C.U.C., Oct. 10, 1990). The Commission’s reasoning in the reconsideration order *738applies equally to the order under consideration. Accordingly, the speculative evidence of the alleged lost toll revenues cannot provide a basis for the access charges for land-to-mobile and mobile-to-land interCGSA traffic. A contrary holding would violate N.C.G.S. § 62-94(b)(5). Furthermore, in light of the reconsideration order which does not provide for access charges for mobile-to-mobile traffic because of the absence of competent, empirical evidence of the lost toll revenues, the order, which provides for access charges for land-to-mobile and mobile-to-land traffic based on speculative alleged lost toll revenues, is an arbitrary order prohibited by N.C.G.S. § 62-94(b)(6).

Nevertheless, based upon evidence that cellular companies function like IXCs when providing WACR to their cellular customers engaged in land-to-mobile and mobile-to-land calls, the Commission concluded

when . . . [cellular companies] do provide . . . [interCGSA] service, they behave functionally like an IXC. A structure of access charges has already been erected, one of the major purposes of which is to provide support for the local network. This local network is important not only in an economic and technical sense as a gateway to landline subscribers but as a social nexus, the value of which increased as the society approaches universal service. There is no reason that cellular companies, when they behave like IXCs, should not share the costs and responsibilities of IXCs. This means payment of access charges.

In re Tariff Filings by Raleigh/Durham MSA, Fayetteville MSA, United TeleSpectrum, and Centel Cellular Co. to Establish Rates for Wide Area Call Reception, Docket No. P-100, Sub. 109 at 10 (N.C.U.C., May 11,1990). The cellular companies argue that because technology, price, size, and competition distinguish cellular carriers from IXCs, the Commission acted arbitrarily in concluding that cellular carriers behave' functionally like IXCs when providing WACR. However, various witnesses testified that in offering WACR for land-to-mobile and mobile-to-land traffic, the cellular companies operated much like IXCs because they use local exchange companies to originate and terminate calls. Accordingly, the Commission’s conclusion on this point is supported by “competent, material and substantial evidence in view of the entire record as submitted,” is not arbitrary, and supports the order that the cellular carriers *739pay to local exchange companies access charges competitive with the access charges paid by the IXCs. N.C.G.S. § 62-94(b)(5), (6). I would affirm the Commission’s order.

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